REENA RAGGI, Circuit Judge:
On the morning of September 11, 2001, a group of Islamic terrorists murdered almost 3,000 persons by hijacking four commercial airplanes and crashing them into New York's World Trade Center, the Pentagon, and a field in Shanksville, Pennsylvania.
This case, filed approximately three years before the Museum opened, challenges the display therein of a particular artifact recovered from World Trade Center debris, a column and cross-beam from one of the Twin Towers that gave some who saw it, particularly rescue workers, the impression of a large Latin cross, a symbol frequently associated with Christianity. Appellants, American Atheists, Inc., and three members of that organization, Dennis Horwitz, Kenneth Bronstein, and Jane Everhart (collectively, "American Atheists"), initially contended that any display of the column and cross-beam, denominated by the Museum as "The Cross at Ground Zero," would violate the Constitution's Establishment and Equal Protection Clauses, see U.S. Const. amends. I & XIV, as well as parallel provisions of New York and New Jersey state law.
For the reasons stated herein, we conclude that American Atheists' challenge fails on the merits. Accordingly, we hereby affirm the judgment in favor of appellees.
On de novo review of a summary judgment award, we are obliged to view any disputed issues of fact in the light most favorable to the non-moving party. This case presents no disputes of material fact as is evident from American Atheists' decision not to file any response to appellees' Rule 56.1 statement in support of their summary judgment motion. See Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998). We nevertheless recite the relevant facts in some detail because they necessarily inform our legal analysis of American Atheists' Establishment and Equal Protection Clause challenges.
In the days and weeks following the terrorist attacks of September 11, 2001, hundreds of professional and volunteer rescue workers descended on lower Manhattan where they pored through
A few weeks later, on October 3, 2001, volunteers lifted the 17-foot column and cross-beam from the wreckage and erected it onto a platform at the West Street edge of the recovery site. The following day, almost one hundred people gathered when Father Brian Jordan, a Franciscan priest who had been blessing victim remains at Ground Zero, blessed the artifact. Soon after, Father Jordan, who also had been offering masses for workers at Ground Zero, began to conduct such services at the cross site. Persons of different faiths, or of none at all, were welcome and offered communion. See Draft Script for Exhibit, Exh. 4 to Patterson Decl., NSMM 2202.
In 2006, construction work on the new World Trade Center Transportation Hub prompted the Port Authority to arrange for the retrieved column and crossbeam's removal from Ground Zero to an airport hangar designated as the interim repository for World Trade Center artifacts. The plan was met by an outpouring of public support for maintaining this particular artifact at or near Ground Zero. Accordingly, the Port Authority agreed that the column and cross-beam could be temporarily housed at St. Peter's Roman Catholic Church, which faces directly toward Ground Zero. There the column and crossbeam remained until 2011, when the Port Authority transferred custody of this and
The National September 11 Memorial and Museum is located at Ground Zero. The outdoor Memorial recognizes by name each person who lost his or her life in the September 11 attacks, whether in New York, Washington, or Pennsylvania, as well as each person killed in the 1993 World Trade Center bombing.
In a space of approximately 110,000 square feet, the Museum recounts the history of the September 11 attacks and their aftermath. Some 1,000 objects drawn from a collection of more than 10,000 artifacts are displayed.
Of particular relevance to this appeal is a part of the Museum exhibition entitled "Finding Meaning at Ground Zero." It is here that The Cross at Ground Zero is displayed. The textual panel for this part of the exhibition provides visitors with the following information:
Draft Script for Exhibit, Exh. 4 to Patterson Decl., NSMM 2197. Various of the items referenced in this text are themselves displayed, either actually or photographically. Among these is the American flag that an emergency rescue worker secured from nearby Stuyvesant High School and raised on a remnant of the North Tower antenna to provide inspiration for fellow workers.
Within the "Finding Meaning" section of the Museum, display of The Cross at Ground Zero is accompanied by the following textual explanation:
Id. 2198 (boldface and italics in original).
American Atheists commenced this action in New York Supreme Court on July 27, 2011. The following month, defendant Foundation removed it to the United States District Court for the Southern District of New York. Following amended pleadings and discovery, the Foundation and the Port Authority moved for summary judgment, which the district court granted on March 28, 2013. Although rejecting the Foundation's challenge to its characterization as a state actor, see American Atheists, Inc. v. Port Auth. of N.Y. & N.J., 936 F.Supp.2d at 331-34, the district court concluded, as a matter of law, that neither the Foundation nor the Port Authority would violate the Establishment or Equal Protection Clauses of the Constitution or their New York and New Jersey counterparts by their intended display of the The Cross at Ground Zero in the National September 11 Museum, see id. at 334-41.
This timely appeal followed.
The First Amendment states that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. The text does not itself define "establishment," and the term is "not self-defining." McCreary Cnty. v. ACLU, 545 U.S. 844, 874-75, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); see Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (describing language of Establishment Clause as "opaque"). Nevertheless, courts have long construed the Clause to prohibit the government not only from establishing a national or state church, but also from officially favoring one religious denomination over another, or even religion generally over nonreligion. See McCreary Cnty. v. ACLU, 545 U.S. at 860, 125 S.Ct. 2722.
While "neutrality" is thus the "touchstone" of the Establishment Clause, that principle provides more a "sense of direction" than a determinative test. Id. at 860, 875, 125 S.Ct. 2722. In short, neutrality is not so rigid and absolute a principle as to command "a brooding and pervasive devotion to the secular." School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 306, 83 S.Ct. 1560, 10 L.Ed.2d
Lemon instructs that for challenged government action to satisfy the neutrality principle of the Establishment Clause, it must (1) "have a secular ... purpose," (2) have a "principal or primary effect ... that neither advances nor inhibits religion," and (3) "not foster an excessive government entanglement with religion." Id. at 612-13, 91 S.Ct. 2105 (internal quotation marks omitted); see also Skoros v. City of New York, 437 F.3d at 17-18 (explaining that each prong of Lemon analysis is informed by Supreme Court's refinements in McCreary Cnty. v. ACLU, 545 U.S. at 861-66, 125 S.Ct. 2722; County of Allegheny v. ACLU, 492 U.S. 573, 592-94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), abrogated on other grounds by Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014); and Agostini v. Felton, 521 U.S. 203, 232-33, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)). Upon such review here, we conclude, as the district court did, that American Atheists' Establishment Clause challenge fails as a matter of law.
At the first step of analysis, we consider whether appellees' purpose in displaying The Cross at Ground Zero in the September 11 Museum is secular, both actually and as perceived by an objective observer. See McCreary Cnty. v. ACLU, 545 U.S. at 863, 125 S.Ct. 2722; Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring). In doing so, we are mindful that Lemon's secular purpose requirement "is not intended to favor the secular over the religious, but to prevent government from `abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.'" Skoros v. City of New York, 437 F.3d at 18 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987)).
As a matter of law, the record compels the conclusion that appellees' actual purpose in displaying The Cross at Ground Zero has always been secular: to recount the history of the terrorist attacks of September 11, 2001, and their aftermath. This is evident from correspondence dating to 2006, eight years before the Museum opened. Therein, a Foundation official writes to the executive director
Dykstra Letter to Ringler, 5/11/06, Exh. 1 to Patterson Decl. We generally defer to such a statement of purpose absent some reason to think it is a sham, which is not evident here. See McCreary Cnty. v. ACLU, 545 U.S. at 864-65, 125 S.Ct. 2722; accord Skoros v. City of New York, 437 F.3d at 19-22.
In urging otherwise, American Atheists do not dispute that The Cross at Ground Zero is a genuine historic artifact of recovery and healing efforts after the September 11 attacks. Rather, they contend that appellees' actual purpose must be religious because the cross's particular historical significance derives from its religious symbolism and devotional use. In short, because the historical significance of this particular column and cross-beam is as a tangible illustration of the role faith played for many persons in the aftermath of the September 11 attacks, appellees' actual purpose in displaying the artifact must be religious rather than secular. We reject this reasoning.
American Atheists point to no precedent holding that when a religious symbol or artifact with genuine historical significance is included in a public historical display, the actual purpose is necessarily religious promotion. To the contrary, the Supreme Court has long recognized that an accurate account of human history frequently requires reference to religion: "The history of man is inseparable from the history of religion." Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Indeed, as Justice Jackson observed in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), "it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything that gives meaning to life, is saturated with religious influences," id. at 236, 68 S.Ct. 461 (Jackson, J., concurring); see also Edwards v. Aguillard, 482 U.S. 578, 607, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Powell, J., concurring) (observing that "since religion permeates our history, a familiarity with the nature of religious beliefs is necessary to understand many historical as well as contemporary events"). Thus, the Establishment Clause is not properly construed to command that government accounts of history be devoid of religious references. Nor is a permissible secular purpose transformed into an impermissible religious one because the government makes an historical point with an artifact whose historical significance derives, in whole or in part, from its religious symbolism. See Corporation of Presiding Bishop v. Amos, 483 U.S. at 335, 107 S.Ct. 2862 (holding that secular purpose prong of Lemon test "does not mean [government] purpose must be unrelated to religion"); see also Van Orden v. Perry, 545 U.S. 677, 699, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring) (observing that "Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious").
Here, appellees' secular historical purpose in displaying The Cross at Ground Zero is further evident from their documented
Dykstra Letter to Ringler, 5/11/06, Exh. 1 to Patterson Decl.
Appellees' actual secular purpose is also apparent in the display design for The Cross at Ground Zero. As detailed in the above background discussion, see supra at
Given these documented demonstrations of appellees' secular historical purpose, the absence of any evidence of ulterior religious motives, and the undisputed historical significance of The Cross at Ground Zero, we conclude that, as a matter of law, the record compels the conclusion that the actual purpose of displaying the cross in the September 11 Museum is a genuine secular interest in recounting the history of extraordinary events.
American Atheists maintain that even if appellees' actual purpose is secular, an "objective observer" would necessarily perceive it to be religious because a Latin cross is an inherently religious symbol, and this particular cross-shaped artifact was used in connection with religious devotions at Ground Zero.
The observer would know also that the cross is displayed in a section of the museum that textually acknowledges various ways — many not religious — that people employed "to come to terms with the horrific circumstances" of September 11. Script for Exhibit, Exh. 4 to Patterson Decl., NSMM 2197. He would know that the textual explanation of The Cross at Ground Zero makes no reference to Christian iconography but, rather, recounts historical facts about the cross's discovery and use, with particular emphasis on how it came to be seen "as a symbol of hope, faith, and healing" by numerous persons, without regard to their "belief systems." Id. at 2198.
The observer would know that the absence of any reference to "atheists" in the
We conclude that an objective observer cognizant of all these circumstances could not perceive appellees' purpose in displaying The Cross at Ground Zero to be religious promotion. Rather, he would necessarily perceive their purpose to be the secular one of providing accurate historical insight into the various means by which people tried to cope with the devastation of the September 11 attacks.
The second prong of the Lemon test requires that the "principal or primary effect" of the challenged government action "neither advance nor inhibit religion." Skoros v. City of New York, 437 F.3d at 29 (internal quotation marks omitted). This mandate is often cast in terms of endorsement: "Would a reasonable observer of the display in its particular context perceive a message of governmental endorsement or sponsorship of religion?" Elewski v. City of Syracuse, 123 F.3d 51, 53 (2d Cir.1997); accord Bronx Household of Faith v. Bd. of Educ. of the City of New York, 650 F.3d 30, 40-41 (2d Cir.2011).
Justice O'Connor, the principal architect of the "endorsement test," has explained that endorsement is not limited to government coercion or proselytization; rather, it takes account of "the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others." County of Allegheny v. ACLU, 492 U.S. at 627-28, 109 S.Ct. 3086 (O'Connor, J., concurring in part and concurring in judgment). This is not to suggest, however, that nonbelievers can demand that courts "sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens." Id. at 623, 109 S.Ct. 3086. "[G]overnment can acknowledge the role of religion in our society in numerous ways that do not amount to an endorsement." Id. at 631, 109 S.Ct. 3086 (emphasis in original). What endorsement does not permit is government making "a person's religious beliefs relevant to his or her standing in the political community," id. at 627, 109 S.Ct. 3086,
Endorsement is assessed by reference to a "reasonable observer." Like the "objective observer," the "reasonable observer" is "not a particular individual, but `a personification of a community ideal of reasonable behavior.'" Skoros v. City of New York, 437 F.3d at 30 (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'Connor, J., concurring in part and concurring in judgment)); accord Salazar v. Buono, 559 U.S. 700, 721, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010) (plurality opinion) (stating that reasonable observer test requires "hypothetical construct of an objective observer who knows all of the pertinent facts and circumstances surrounding the symbol and its placement"). Such an observer would be aware of circumstances already referenced with respect to purpose, including the knowledge that historic events are often informed by persons' religious beliefs, and that the Establishment Clause does not require disavowal of this reality. See supra at
The observer would further know that, in troubling times, many persons find comfort in prayer and religious rituals, see School Dist. of Abington Twp. v. Schempp, 374 U.S. at 212-13, 83 S.Ct. 1560 (recognizing that "since the beginning of ... history many people have devoutly believed that `More things are wrought by prayer than this world dreams of.'"), and that this was certainly the case in the aftermath of the September 11 attacks.
Indeed, that conclusion would only be reinforced by the textual panels accompanying the "Finding Meaning" exhibition generally and the cross display in particular. These both (1) identify religious symbols and rituals as among various means that people employed to come to terms with the attacks' devastation, and (2) emphasize that "[i]ndividuals of many faiths and belief systems" viewed The Cross at Ground Zero as a symbol of various positive expressions, i.e., as a symbol of "hope, faith, and healing," of "the human spirit," and of "how people will care for each other at the worst moment in their life." Script for Exhibit, Exh. 4 to Patterson Decl., NSMM 2198.
A reasonable observer would further know that there is no distinct artifact from which atheists, as a group, drew hope and comfort in the aftermath of September 11. Thus, this is not a case in which appellees have chosen to display a symbol of hope embraced by religious believers at Ground Zero while at the same time refusing to display a symbol of hope embraced by nonbelievers at Ground Zero. Cf. Skoros v. City of New York, 437 F.3d at 27 (rejecting Establishment Clause challenge to Board of Education's refusal to allow crèche display along with menorah, Christmas tree, and other symbols of year-end holidays, while recognizing "possibility that, in some circumstances, a government's deliberate exclusion of the religious symbol of one faith from a display that includes the religious symbols of other faiths could communicate the official favoritism or hostility among religious sects that is prohibited by the Establishment Clause").
From the totality of these circumstances, a reasonable observer would understand that The Cross at Ground Zero, while having religious significance to many, was also an inclusive symbol for any persons seeking hope and comfort in the aftermath of the September 11 attacks. Such an observer would not understand the effect of displaying an artifact with such an inclusive past in a Museum devoted to the history of the September 11 attacks to be the divisive one of promoting religion over nonreligion. Nor would he think the primary effect of displaying The Cross at Ground Zero to be conveying a message to atheists that they are somehow disfavored "outsiders," while religious believers are favored "insiders," in the political community. Lynch v. Donnelly, 465 U.S. at 688, 104 S.Ct. 1355 (O'Connor, J., concurring).
Accordingly, we identify no concern with the challenged cross display at the second step of Lemon analysis.
Lemon's final concern — excessive state entanglement with religion — rests on the premise that "both religion and government can best work to achieve their lofty aims if each is left free from the
Thus, to the extent American Atheists rely on their endorsement arguments to complain of excessive entanglement, we have already explained why we find these arguments unpersuasive. In any event, the decision to display an object with religious significance in a public museum does not manifest entanglement unless religious authorities played a role in that decision, for which there is no record evidence here. Compare Lynch v. Donnelly, 465 U.S. at 684, 104 S.Ct. 1355 (identifying no excessive entanglement in absence of any evidence of contact with church authorities concerning content or design of exhibit prior to or since city's purchase of crèche), with Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d at 425 (identifying excessive entanglement where state delegated civic authority to individuals chosen according to religious criteria). The fact that the Port Authority contacted Father Jordan regarding the prayer and blessing that marked the physical transfer of The Cross at Ground Zero from St. Peter's Church to the Foundation is not to the contrary, as there is no record basis to think that ceremony informed appellees' decision as to whether and how to display the artifact in the Museum, the matters challenged here.
Entanglement concerns can also arise where extensive monitoring is required to ensure that a public entity is not promoting religion. See, e.g., Lemon v. Kurtzman, 403 U.S. at 619, 91 S.Ct. 2105 (identifying excessive entanglement where policy of financial support for nonsectarian curriculum of parochial schools would require "comprehensive, discriminating, and continuing state surveillance"). No such concern is present here where the challenged exhibit will be static, and the same public entity, the September 11 Museum, would be both the monitored and monitoring actor. See Skoros v. City of New York, 437 F.3d at 36-37 (identifying no excessive entanglement where state monitors actions of public schools but not sectarian institutions).
American Atheists having pointed us to no other way in which Museum display of The Cross at Ground Zero risks excessive entanglement, we conclude that this final Lemon factor raises no concerns.
In sum, because the record demonstrates, as a matter of law, that Museum display of The Cross at Ground Zero does not violate the Establishment Clause, we conclude that judgment was correctly entered in favor of appellees on this First Amendment claim.
American Atheists contend that appellees' Museum display of The Cross at Ground Zero denies them equal protection of the laws. Specifically, they contend that a display of the cross without an accompanying atheist recognition plaque discriminates against atheists by "trivializ[ing]" how non-Christians experienced and coped with the events of September 11. Appellants Br. at 30. The claim fails as a matter of law.
As American Atheists acknowledge, appellees' choice as to which artifacts
Moreover, as the district court correctly concluded, American Atheists fail to adduce evidence from which a reasonable trier of fact could conclude that appellees' display decisions were animated by discriminatory animus toward atheists. See Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009) (referencing various ways for demonstrating intentional discrimination violative of equal protection). Nothing in the record indicates that (1) appellees' display decisions were based on a policy that expressly classified on the basis of religion, (2) appellees employed a facially neutral display policy in a religiously discriminatory manner, or (3) a facially neutral display policy has an adverse effect on atheists motivated by religiously discriminatory animus. See id.
Indeed, a demonstration of intentional discrimination by any of these means is effectively foreclosed by a host of factors including American Atheists' own acknowledgements that The Cross at Ground Zero is a genuine historic artifact warranting display in the Museum's "Finding Meaning" exhibition, and that no comparable artifact exists to give tangible form to how atheists — as distinct from persons generally, or Christians in particular — came to terms with the September 11 attacks. No reasonable factfinder could conclude that appellees trivialize atheists' September 11 experience when both the Memorial and the Museum identify every person killed in the attacks of that day without regard to religious affiliation. Further, the Museum's "Finding Meaning" exhibition respectfully reports that people employed a variety of nonreligious, as well as religious, means to cope with the September 11 attacks. See supra at
Thus, we conclude that the Equal Protection Clause does not bar appellees from displaying the Cross at Ground Zero in the National September 11 Museum, not does it require them to supplement the Museum's "Finding Meaning" exhibition with an atheist recognition plaque, as appellants propose.
To summarize, we conclude as follows:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs' request to fund an accompanying symbol commemorating atheists.
Accordingly, the district court's award of summary judgment is AFFIRMED.
Oral Arg. Tr. 4:24-5:10. These circumstances manifest waiver of a total display challenge. See Flores v. S. Peru Copper Corp., 414 F.3d 233, 253 n. 27 (2d Cir.2003) (identifying waiver where plaintiffs raised argument before district court but disavowed it in appellate brief); see also In re Cacioli, 463 F.3d 229, 235 n. 6 (2d Cir.2006) (identifying waiver from statements at oral argument). But whether American Atheists' challenge is to any display of The Cross at Ground Zero or to a display unaccompanied by an atheist recognition plaque, it fails on the merits for the reasons stated in this opinion.