Tuesday, August 21, 2012
Challenge to the 9/11 Museum Cross
I hadn't spent much time looking at the issues raised in the latest round of the ever-present fight over public displays of religious symbols--this time, litigation brought by atheists against display of the construction beam cross on the grounds of the 9/11 Museum--until a CBS reporter asked me to comment (story here). As Johnny Buckles observes over at the Nonprofit Law Blog, there's a tricky question about the Museum's status--it's incorporated as a a private non-profit organization but receives the bulk of its funding from government sources (that doesn't strike me as a serious problem for state action purposes) and is located on Port Authority land (that's a closer call). But even if the Museum doesn't prevail in its argument that it should be deemed a private entity for Establishment Clause purposes, it might should win under Van Orden v. Perry's and Salazar v. Buono's (implied on account of the cases's procedural posture) view that display of a historically significant religious symbol does not constitute government endorsement of religion. MOJ reader thoughts?
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/08/challenge-to-the-911-museum-cross.html
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Frankly, Professor Moreland, I think you are rather too kind to the plaintiffs. The "9/11 Museum Cross" is not, in any intelligible sense, even a "cross." It's a hunk of metal that was bolted together for practical construction purposes in the early 1970s and that was left in its present form by the fortuity of falling rubble. The idea that it acquired some constitutionally relevant religious status by being featured in a famous photograph is, frankly, facially implausible. An FDA facility for studying cows does not become a religious site simply because Hindus live next door to it.
I am inclined to think that responding to these sorts of things as if they were potentially meritorious simply cheapens discussions about religion in public life and encourages groups such as the plaintiffs in this action to find ever lower denominators in the war on perpendicular lines.