The case is American Atheists, Inc. v. Port Authority of New York and New Jersey, decided on July 28. I don't know how the American public would react if the Atheists won this lawsuit, but the Court of Appeals (Raggi, Lynch and Chin) reject their challenge and find that the Museum is not required to post a statement that says that atheists also helped to clean up Ground Zero. This is what the Cross looked like after the attacks:
The First Amendment includes the Establishment Clause, which prohibits any government establishment of religion. Most of us know the Clause as the source of the "separation of church and state" doctrine. Government action violates the Clause if favors one religion over another or even religion generally over non-religion. The government action must also have a secular purpose, neither advance nor inhibit religion nor excessively entangle itself with religion. There are no easy answers to an Establishment Clause problem. The case law creates too many moving parts to predict the outcome. Here is how the Court of Appeals summarizes the plaintiffs' claims:
American Atheists contend that the Port Authority and the Foundation impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11.
Certainly the Latin Cross found at Ground Zero looks religious. But as a matter of constitutional law, it does not violate the Establishment Clause. It was not placed in the Museum for religions purposes. It was instead placed there "to recount the history of the terrorists attacks of September 11, 2001, and their aftermath." Recall that finding this artifact at Ground Zero had great meaning for the cleanup workers. The Court of Appeals says, "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." A great deal of what our culture celebrates "is saturated with religious influences." Moreover, at the Museum, the textual panel that accompanies the Cross "is plainly historical rather than theological in recounting the facts of discovery and subsequent use by '[i]ndividuals of many faiths and belief systems . . . as a symbol of hope, faith, and healing.'”
A similar analysis governs whether the Museum features the Cross for secular or religious reasons. An objective observer who is familiar with the whole story would perceive this as a non-religious display, i.e., one that accurately depicts the Ground Zero cleanup.
What about the fact that the Museum display does not explicitly say that atheists helped at the Ground Zero cleanup? I know of no case that says the Atheists should win on this basis, and the Court of Appeals does not know of any, either. As Judge Raggi writes:
The observer would know that the absence of any reference to “atheists” in the Museum’s “Finding Meaning” exhibition derives from the fact that, as American Atheists themselves acknowledge, there is no artifact showing a particular way that atheists, as distinguished from persons generally, tried to find meaning in the events of September 11. Insofar as American Atheists propose a plaque that would acknowledge that atheists were among the victims and rescuers on September 11, an objective observer would know both that such a plaque was not an “artifact,” and that it did not speak to the point of the exhibition section, i.e., how people found meaning at Ground Zero. He would further know that every victim of the September 11 and 1993 attacks is identified by name on the Memorial plaques without regard to religious affiliation, and depicted both visually and textually in the Museum’s commemorative display.