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An embarrassing lawsuit

Susan Jacoby has a great article in The Washington Post about American Atheists‘ legal action opposing the inclusion in the National September 11 Memorial and Museum of a cross-shaped steel beam that was found among the ruins of the World Trade Center.

From Jacoby’s article:

But American Atheists, a New Jersey-based group with an unerring nose for for the scent of publicity…

Yes indeed. American Atheists are our Catholic League. Their publicity stunts are embarrassing.

Yes, it would be a violation of the establishment clause if the battered cross-shaped object were displayed at the entrance as the museum’s official symbol. And I’d be the first to go to court to get it removed. But there is no evidence that the museum intends this piece, when the building opens, to be anything but one exhibit in a large collection that will include many other objects belonging to the history of that day and its aftermath. It is now being installed in an underground section of the future museum.


If their case does go to trial, their lawyers will have to prove that the cross’s placement violates the “endorsement test“:

[A] government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.

(Although the endorsement test is often considered to be a subset or a fourth “prong” of the “Lemon test“, the Lemon test really isn’t relevant in this case, as the Lemon test focuses primarily on legislation, not general governmental action.)

Like Jacoby says, the cross isn’t going to be displayed in a manner or place that will indicate governmental endorsement of Christianity. As such, I think that American Atheists are going to have a difficult time proving that the cross’s placement violates the endorsement test (and, by extension, the Establishment Clause).

This lawsuit is both frivolous and almost certainly doomed to fail.

James Croft has written a fantastic and informative post about this lawsuit. In the latest update to his post, he writes that:

I’ve just received confirmation from a 9/11 Memorial Representative that “The World Trade Center Cross will be part of the 9/11 Memorial Museum, opening in September 2012. It will be displayed in the historical exhibition.”

I hope this clears up the issue for everybody – the cross is not in the memorial gardens, as American Atheists, Inc. have repeatedly claimed on their Facebook page, but is an exhibit in the museum, as I have contended from the start.

I’m quite curious to hear American Atheists’ response to all of the evidence that James has tracked down (assuming they don’t just willfully ignore it, that is).


  1. Well, after recent events, it should be no great surprise that we also have our own Catholic League type people. Perhaps we could get them matched up on edisharmony or something.

    I’m not embarrassed by the suit at all; it doesn’t implicate but through a false guilt by association analogy. Since I categorically decline to accept as valid any fallacious reasoning, I’m quite comfortable pointing and laughing. =^_^=

    August 5, 2011
  2. INTP #

    Thanks Miranda. I have to cringe at the antics of Madelyn Murray O’Hair’s old group. Jon Stewart from the Daily Show put in some commentary on this as well, recently.

    August 5, 2011
    • Yeah, I heard about the Stewart clip- I need to go track that down now :)

      August 5, 2011
    • Hee! I just watched it. I love Stewart parodying Silverman: “As president of the American Atheists organization, I promise to make sure that everyone, even those who were indifferent to our cause, will fucking hate us!”

      August 6, 2011
  3. I agree. If the cross were being used as a focal point or the main symbol for the 9/11 museum then it would be unacceptable. However, for it to be part of the museum, albeit a large one, cannot really be argued against, as it was a source of hope (no matter how irrationally) for so many people.

    There are many more worthy fights to be fought on the atheist agenda, and this harms the cause more than any good it can achieve.

    August 5, 2011
    • Yes, definitely. The memorial vs. museum distinction is crucially important here, but, as far as I can tell, AA either doesn’t understand the distinction or just doesn’t care. It’s quite depressing.

      August 5, 2011
  4. I agree with you Miranda. There is a danger of some atheists becoming like vampires – cringing away from crosses. All that should matter is if religion is forced on others, and there is no forcing if this cross is to be part of a museum. This is a petty and ill-advised lawsuit.

    August 5, 2011
    • All that should matter is if religion is forced on others, and there is no forcing if this cross is to be part of a museum.

      Yes indeed, and that’s the key distinction here. It’s going to be in a museum, amongst other historical artifacts, and there’s nothing illegal or unconstitutional about its presence in the museum.

      August 5, 2011
  5. I watched a video the other day where Fox News had a firefighter arguing with a representative from American Atheists about this issue. Normally such segments are good for a laugh, as we can arrogantly sneer at the airhead anchor babbling nonense to the atheist guy, but with this video I found myself saying out loud, “what’s the problem here?” I felt sympathy for the firefighter who talked about how the cross means a lot to a great many people. and you can’t deny that the cross was indeed a part of the media circus which was to follow 9/11, with images of the steel bars being shown in news items all around the world. I couldn’t think of a good reason not to include it as a part of the 9/11 museum, and I came away from that segment thinking that the atheist side of the argument appeared extremely petty and narrow-minded. I am passionately in favour of the separation of church and state but we must ensure that we do not become mindless automatons when it comes to all Religon Vs Secularism debates, unable to sense nuance in matters that are not necessarily black and white.

    August 5, 2011
    • Yeah, exactly. And American Atheists seem immune to nuance, which is part of what I find so frustrating about them. Well, that and the fact that they don’t seem to understand that not all publicity is good publicity, you know? Ugh. :/

      August 5, 2011
  6. “I’m quite curious to hear American Atheists’ response to all of the evidence that James has tracked down (assuming they don’t just willfully ignore it, that is).”

    American Atheists blocked James Croft from posting on their Facebook page after he posted a link to his initial blog post to it. So, um…

    August 5, 2011
    • Yeah, I guess I was being overly optimistic and/or charitable there. :/ It’s really unfortunate to see that they’re silencing dissenting voices, particularly considering that there’s nothing nasty, inflammatory, or dishonest in James’s post.

      August 5, 2011
  7. Robert L. #

    Someone who has the ear of AA’s leadership should try to persuade Silverman to rethink this particular case. This is overreach. We need to vigorously police the church/state border—but we also need to do so fairly. Moreover, we should be trying to publicize the *strongest* establishment clause cases, not the weakest.

    If they’re our Catholic League, then Silverman is our Bill Donahue…and maybe that’s where the comparison begins to stretch. Silverman is overreaching and mistaken on this one; Donahue minimizes the actions of child-raping priests with crude semantics about the word “pedophile” and arrogant excuse-making.

    August 5, 2011
    • Yeah, Silverman is definitely no Bill Donohue, that’s for sure. Still, AA’s history of what can (arguably, of course) be described as publicity stunts isn’t that different from the Catholic League’s shenanigans. Different goals, but similar tactics.

      And yes, I absolutely agree. I’m passionate about defending the wall of separation. However, we should we be fighting bigger battles (as you say), and it’s also very important to keep both the law and legal precedent in mind. In other words, a violation of the Establishment Clause means something very specific. Context matters. There are tests (endorsement test, Lemon test) that courts use to decide these cases. We have to stay focused on evidence here, not on feelings. I realize how emotional this is for many people, but the fact that the cross’s presence in the museum upsets someone doesn’t mean that its presence violates the Establishment Clause. And, in this situation, the facts just don’t support AA’s claims.

      Someone on my FB page called the distinction between the memorial and the museum “sophistry”, which is nonsense. The distinction, in this case, couldn’t be more important.

      Anyway, I’m rambling. I’ll stop now :)

      August 5, 2011
    • cmasontaylor #

      @ Robert L,

      I definitely agree that to really compare Dave Silverman to Bill Donohue and mean it is way over the top re: false equivalency. However, I do think we have to be mindful that, as America’s most distrusted intellectual minority, it’s probably a good idea to hold ourselves to infinitely higher standards than people who think that secreting away a blessed wafer is much, much worse than concealing child rape and then blaming it on The Gays™.

      So yeah. AA’s being silly on this one. I think the only way I’d object to the cross, personally, is if it was in fact an intentionally-constructed religious icon, or perhaps if it was accompanied by actual preaching. It’s just something that was in the rubble. Christians have elected to find meaning in it, the way they often do with grilled cheese sandwiches. I find it to be a piece of rubble. I don’t feel the need to sue it out of the museum, any more than I would feel the need to litigate against religious artworks from my local fine art museum.

      August 7, 2011
      • Robert L. #

        And there were probably lots of cross-sections of beams found in that huge amount of rubble. It’s pretty convenient to have your symbol be a cross: anytime two lines come together, Hey! That’s our symbol!

        August 8, 2011
  8. Sigmund #

    There’s definitely a case for choosing your battles carefully I do wonder whether the aim of this lawsuit is not to prevent the cross from being featured in the museum but to simply drum up publicity for Silvermans organization. For a relatively small organization like this there can be huge advantages in positioning oneselves as the prime religion-hating group (as opposed to the prime rational thinking group) for the simple reason that donations such as legacies from a small number of rich religion haters can keep a group going for years.

    August 11, 2011
    • Yes, AA is known for their publicity stunts and seem to believe that all publicity is good publicity. They’re really quite embarrassing. And they seem to still be plugging away at this lawsuit, even though it’s almost certainly doomed to failure.

      August 13, 2011

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