Sectarianism, Deism, and the Ground Zero Cross

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American atheists protest the addition of the World Trade Center cross to the 9/11 memorial

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Atheism in America requires a sense of humor, however black, a thick skin, or an active embrace of outsider status; lacking these defenses, you risk being unnerved by the onslaught of religiosity and mired in a sense of victimhood. Your legal advocacy of official secularism, consistent with the First Amendment, devolves into personal complaints about the psychic damage of official religiosity.

Consider the challenge brought by American Atheists to acquisition of the World Trade Center cross in the government supported 9/11 memorial and museum. Whether this cross is on display because of its secular, historical value or as a sectarian religious artifact inviting worship is a challenging, partly factual question. But given the prominence of the cross, its unavoidable, universal sectarian meaning, and the potential if not probable perception of it as an official endorsement of Christianity, it is or should be quite vulnerable to constitutional challenge, although not, I suspect, the sort of challenge brought by American Atheists.

What's the harm of the cross, according to AA? It's presence in the 9/11 memorial causes plaintiffs to suffer from "dyspepsia, symptoms of depression, headaches, anxiety, and mental pain and anguish from the knowledge that they are made to feel officially excluded from the ranks of citizens who were directly injured by the 9/11 attack and the lack of acknowledgement of the more than 1,000 non-Christian individuals who were killed at the World Trade Center."

"Get over it," you can easily imagine any number of federal judges responding. "(H)urt feelings differ from legal injury," the 7th circuit Court of Appeals recently declared, rejecting a challenge to the President's declaration of National Prayer Day. Federal courts are increasingly unsympathetic to claims of emotional harm caused by government religiosity, denying standing to aggrieved plaintiffs characterized and trivialized as "offended observers" in establishment clause cases; (I discussed this trend here.) So the injury claims advanced by American Atheists are puzzling. Perhaps, by alleging stress related somatic injuries, the plaintiffs hope to demonstrate that they are not merely offended. Good luck with that: exaggerating the effects of the alleged offense only makes it easier to deride. Or perhaps plaintiffs are too enveloped by their pain to understand the folly of relying on it, or too immersed in the therapeutic culture to question whether their allegations of psychic harm are of great, constitutional import.  

But government displays of sectarian religious symbols do raise important constitutional issues, not because of the risible personal harms alleged by American Atheists but because of the harms they inflict on the public sphere. When the government endorses or adopts the symbol of a majority religion it implicitly but effectively diminishes tolerance and threatens liberty for religious and irreligious minorities. It conveys a theocratic bias. When the government displays a Christian cross in a museum memorializing an epochal attack by violent Islamist extremists, the bias resonates with particular force, buttressing an extremist view of America as a Christian country, whose motto should not be E pluribus unum, or even "under God," but "what would Jesus do."

This is not mere ceremonial deism, like the vapid, non-sectarian references to God that decorate our currency and pepper presidential speeches. An official cross, like an official prayer to Jesus, is not deism but sectarianism. It violates constitutional prohibitions on official religious favoritism (the establishment of religion) not because it gives a few atheists indigestion but because it threatens everyone's religious freedom.

This is one danger we face today: with a conservative Supreme Court majority strongly supportive of church/state partnerships and indifferent, at best, to establishment clause violations, aspiring Christian theocrats are blurring the line between deism and sectarianism. A federal judge in Texas recently rejected a challenge by the Freedom from Religion Foundation to Governor Rick Perry's Christian prayer rally, which was successfully defended as non-denominational and compared to the non-sectarian national prayer day - as if a non-denominational Christian event were the equivalent of a non-sectarian one.

But in equating sectarianism with deism, theocrats like Rick Perry have unlikely allies in their fiercest opponents - those militant atheists for whom any banal, official reference to God is the equivalent of a fervent official reference to Jesus. It's worth noting that the Freedom From Religion Foundation, which initiated the suit against Rick Perry, also initiated the failed lawsuit against a non-sectarian national prayer day, securing a federal court ruling that can now be used against them to uphold the Governor's aggressively sectarian prayer rally.

This is the challenge for the Freedom from Religion Foundation and other irreligious advocates of secular government: accept or resign yourself to a little ceremonial deism, partly for the sake of focusing on the important distinction between it and ceremonial sectarianism. And when challenging arguable, official sectarianism, like the Trade Center cross, accept or resign yourself to the increasing foolishness and futility of "offended observer" claims.

I'm not urging resignation to a regime in which individuals are denied standing to challenge state sectarianism and officials are effectively immunized from establishment clause violations. I'm suggesting that secularists stop throwing themselves against new obstacles to standing and find a way around them, a way that points toward public not private harms. Courts are venues for justice, not therapy, and, in this case, the personal is the enemy of the political.


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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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