Friday, August 17, 2012

Status of Lawsuit Over 9/11 Museum Cross

CBS News, following up on stories from other media outlets, reports that the National September 11 Memorial and Museum has filed a motion to dismiss a lawsuit brought by American Atheists Inc. The atheist group opposes the presentation of a cross-shaped steel beam that surfaced from the Twin Towers rubble, a cross characterized by the story as “a famous Ground Zero symbol right after the September 11 attacks.” The atheist organization’s legal director, Edwin Kagin, reportedly has argued that the display constitutes "a violation of both federal and New York law in that public funds will be used to establish the Christian religion on public land." The story summarizes the museum’s defense:

As reported by other media outlets, the museum in its court filing characterized itself is an "independent non-profit corporation." It called the cross an "important and essential artifact" that "belongs at the World Trade Center site as it comprises a key component of the re-telling of the story of 9/11."

Villanova law professor and Vice-Dean Michael Moreland (among others) is quoted at some length in the piece. Opines Moreland:

"If the court agrees with the Museum that it is a private non-profit organization," Morel told CBS News, "then the museum will win because a private party can't violate the Establishment Clause - only the government can. "But, second, displays of religious symbols by the government aren't always unconstitutional. In 2010, a majority of the Supreme Court indicated that a memorial cross on government land in the Mojave Desert was constitutionally permissible because a reasonable observer wouldn't conclude that the government was 'endorsing' Christianity by displaying the cross on public land. Given the historical significance of the 9/11 cross during the Ground Zero cleanup, I think the museum has a strong argument that the cross's historical significance outweighs any perceived government endorsement of religion."

Because the museum’s governing documents and its disclosures to the IRS are relevant to resolving the first issue (i.e., its private entity nature), I have taken a quick peek at the section of the museum’s website listing relevant tax-related materials. According to the museum’s most recently posted Form 990, its public charity status derives from its sources of support, not from any status as a governmental unit. Not qualifying as a governmental entity for tax purposes should help the museum’s case somewhat. While government grants far and away comprise the museum’s most extensive support, receipt of government grants is not alone sufficient to transform a nonprofit entity into a state actor. Further, if anyone is really worried about whether government funds were necessarily used to polish up the old cross-beam, it looks like there was more than enough in private donations to put a shine on that steel in perpetuity. As to formal control of the museum, a response to one of the questions in the museum’s application for recognition of exemption from federal income tax, Form 1023, describes the museum as a not-for-profit corporation, but I saw no copy of its articles of incorporation. A response to another question states that no initial director of the museum is a public official or an appointee of a public official, but further states that the bylaws contemplate the appointment of additional directors by the New York State Governor and the Mayor of NYC. I do not know what the current articles and bylaws require as to the composition of the museum’s board. However, that a governmental official appoints members of a private charity’s board should not necessarily transform the charity into a governmental actor for Establishment Clause (or other) purposes.  The appointment mechanism may be designed to ensure community representativeness, not quasi-governmental functionality.  Cf. Treas. Reg. section 1.170A-9(e)(3)(v).


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