Changing How We See The Cross Commentary
Changing How We See The Cross
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JURIST Guest Columnist Jennifer Kim of St. John’s University School of Law Class of 2016 is the fifth author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Kim discusses how courts should determine whether a government or state action is promoting a particular religion…

On September 11, 2001, a terrorist attack on our nation changed our lives forever. We watched in despair as New York City’s World Trade Center fell to the ground in less than two hours, leaving all of us in a cloud of dust, smoke and hopelessness. Almost 10,000 casualties resulted, and close to 3,000 people died on that tragic day. Almost 14 years after the attack on 9/11, many of us continue to feel the effects of the tragedy. New York remembers that day with the National September 11 Memorial and Museum, which stands where the World Trade Center was previously located. Here, families and friends of loved ones can pay their respects and come to remember. Among the many artifacts found in the museum, there stands a 17-foot crossbeam in the shape of a Latin (or Christian) cross, in the exhibit marked Finding Meaning. This crossbeam, originally a symbol of hope for survivors and families, seems to be a problem for the American Atheists Inc. of New York.

The American Atheists, Inc. saw this crossbeam as a symbol of religion rather than hope, and felt that the cross did not belong in the museum. So, it started a lawsuit. It sued the Port Authority of New York and New Jersey, claiming that the crossbeam violated the First Amendment Establishment Clause of the Constitution because the state displayed a religious artifact on public grounds.

The court, following precedent, used the test that American courts have been using for years in Establishment Clause cases: the Lemon test. The Lemon test, derived from the 1971 case Lemon v. Kurtzman, is used to determine whether a government or state action in displaying an artifact violates the Establishment Clause. Under the Lemon test, the state action or artifact is constitutional if (1) it has a secular purpose; (2) its primary principle effect neither enhances nor hinders religion; and (3) it does not foster excessive entanglement between government and religion.

But the court in American Atheists strays from precedent by also applying the Endorsement test. This test is also used to analyze the constitutionality of a government or state action displaying a religious artifact on public property. This test, derived from Justice O’Connor’s concurring opinion in Lynch v. Donnelly, focuses on whether the government’s objective was to endorse or sponsor a specific religion, considering the reasonable observer’s reaction to the artifact. The court in American Atheists ultimately held that the state government was not violating the Establishment Clause when it erected the crossbeam in the 9/11 museum.

Although the court in American Atheists reached the correct conclusion, it does not itself set good precedent for Establishment Clause jurisprudence in the long run. For future cases, the Endorsement test needs to be adopted and applied to avoid the confusion caused by commingling the two tests in this case.

There are two reasons why the court should abandon the Lemon test altogether: 1) it is inapplicable to passive monuments such as the 9/11 cross beam; and 2) it is too ambiguous to apply in general. First, Lemon v. Kurtzman is inapplicable in American Atheists because the former was dealing with active participation while the latter is dealing with a passive monument. Lemon dealt with the issue of the government giving monetary support to teachers in religious schools, but American Atheists deals with a religious monument on government property. To use the same test for two very different state actions would result in confusing jurisprudence because active and passive monuments have different effects on people. The second reason the Lemon test is inapplicable in American Atheists is because the test itself is ambiguous. The Lemon test’s three prongs are difficult to apply across the board to all Establishment Clause cases because as time passed, the test became too widely applied to too many different situations, which added to the confusing jurisprudence we have today. As Justice Scalia explains, “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again.” For passive monuments such as the cross beam, the Endorsement test is the best test to determine whether the government action violates the Constitution.

With the Endorsement test, all the court has to do is ask whether an objective observer would view this display as a message of endorsement. The only analysis the court has to do is consider the message received by the observer within the context of the display. Adopting the Endorsement test that focuses on the objective observer will set stronger precedent for future Establishment Clause cases.

Focusing on the objective observer in American Atheists, the court explains that the objective observer would realize that the cross, although having religious symbolism, also has a secular purpose of providing an accurate historical account of events relating to September 11. An observer, knowing the general purpose of the September 11 Memorial and Museum, the secular imagery of a cross, and the events of 9/11, would not think that the cross beam displayed was an endorsement of Christianity. The court would have reached the same conclusion with the simpler, more accurate Endorsement test analysis. Therefore, the court should abandon the Lemon test for future Establishment Clause jurisprudence and solely adopt the Endorsement test.

Jennifer Kim is a third year law student at St. John’s University School of Law. She currently serves as an Associate Editor on the Journal of Civil Rights and Economic Development for the 2015-2016 school year. She has previously served as an extern for the New York State Attorney General and the Mayor’s Office of Contract Services. She will be graduating in June 2016.

Suggested citation: Jennifer Kim, Changing How We See The Cross, JURIST – Student Commentary, Nov. 18, 2015, http://jurist.org/dateline /2010/09/Jennifer-Kim-Establishment-Clause.php.


This article was prepared for publication by Robbie Cimmino, a Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

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