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American Atheists, Inc. v. Port Auth. of NY & NJ

United States District Court, S.D. New York

March 28, 2013

AMERICAN ATHEISTS, INC., et al., Plaintiffs,
v.
PORT AUTHORITY OF NY AND NJ, et ano, Defendants

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[Copyrighted Material Omitted]

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For American Atheists, Inc., Dennis Horvitz, Kenneth Bronstein, Mark Panzarino, Jane Everhart, Plaintiffs: Edwin F. Kagin, PRO HAC VICE, Edwin F. Kagin, Attorney at Law, Union, KY; Jonathan Thomas Trexler, Wong, Wong & Associates, P.C., New York, NY.

For Port Authority of New York and New Jersey, Defendant: Megan Lee, LEAD ATTORNEY, Port Authority of New York and New Jersey, New York, NY.

For World Trade Center Memorial Foundation/National September 11 Memorial And Museum, Defendant: Gerard E. Harper, Hannah Suzanne Sholl, Mark Howard Alcott, Paul Andrew Paterson, Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY), New York, NY; Julie Starr Romm, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY.

For American Center for Law and Justice, Amicus: Joseph A Ruta, Ruta & Soulios LLP, New York, NY.

OPINION

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Deborah A. Batts, United States District Judge.

Plaintiffs American Atheists, Dennis Horvitz, Kenneth Bronstein, and Jane Everhart (" Plaintiffs" ) bring this action against the Port Authority of New York and New Jersey (" Port Authority" ) and the National September 11 Memorial and Museum at the World Trade Center Memorial Foundation, Inc. (" Foundation" ) (collectively, the " Defendants" ), alleging Defendants violated the Establishment Clause of the First Amendment,

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the Equal Protection Clause of the Fourteenth Amendment, the New York constitution, the New Jersey constitution, the New York Civil Rights Act, and New Jersey Statute 10:1-3. On August 13, 2012, the Port Authority and the Foundation filed separate Motions for Summary Judgment; both were fully submitted on September 24, 2012. For the reasons that follow, Defendants' Motions are GRANTED.

I. BACKGROUND

The following facts are undisputed.[1] The Parties' familiarity with the facts is assumed, and the facts are laid out here only as needed for resolution of the Motions currently before the Court.

A. The Parties

American Atheists, Inc. is a non-profit corporation that aims to defend the civil liberties of atheists and strives for the absolute separation of church and state. (Am. Compl. ¶ 3.) It filed this action on behalf of its members. (Am. Compl. ¶ 3.) Dennis Horvitz, Kenneth Bronstein, and Jane Everhart are citizens and taxpayers of the United States who live in New York City. (Am. Compl. ¶ 4.)

The Port Authority is a bi-state agency between New York and New Jersey. (Port Authority 56.1 Stmt. ¶ 1.) It owned and operated the World Trade Center until the Center was leased to private parties on July 16, 2001. (Id. ¶ 4.)

The Foundation is a public charity that was incorporated in 2003 and became active in 2005. (Foundation 56.1 Stmt. ¶ 1.) The Foundation is responsible for designing, developing, and operating the National September 11 Memorial (" Memorial" ) and the National September 11 Museum (" Museum" ). (Id. ¶ 2.) The Foundation has a minimum of fifteen members on its Board of Directors. (Alcott Decl., Ex. 1, at 1, Ex. 4, at 1.) Before December 31, 2005, the New York State Governor and the New York City Mayor appointed all its Directors. (Alcott Decl., Ex. 1, at 1, Ex. 2, at 1.) As of January 2007, the New York State Governor and the New York City Mayor each appoint one member, with the remaining Directors being elected.[2] (Pls.' Opp'n 6; Alcott Decl., Ex. 3, at 1, Ex. 4, at 1, Ex. 5, at 1.)

B. Factual Background

After the destruction of the World Trade Center on September 11, 2001, recovery

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workers found steel beams in the shape of a cross (hereinafter " cross" or " artifact" ) near 6 World Trade Center on September 13, 2001. (Port Authority 56.1 Stmt. ¶ 7; Foundation 56.1 Stmt. ¶ 16.) The workers removed the cross, which stands approximately seventeen feet tall, from the debris and erected it at the rescue site. (Port Authority 56.1 Stmt.¶ 7; Foundation 56.1 Stmt. ¶ 16.) During the rescue and recovery effort, many allegedly regarded the cross as a source of comfort and spirituality. (Foundation 56.1 Stmt. ¶ 18; Pls.' Opp'n 3-6.) Religious services were conducted in front of the cross, and at various times the artifact was blessed during religious ceremonies. (Foundation 56.1 Stmt. ¶ 17; Pls.' Opp'n 3-6.) In September 2006, after communication between the church and the Port Authority, the cross was moved to Saint Peter's Church in lower Manhattan.[3] (Port Authority 56.1 Stmt. ¶ 13; Kagin Decl., Ex. 6; Pls.' Opp'n 3-4.) It remained there until 2011 when the Port Authority donated the artifact and transferred its legal title to the Foundation.[4] (Port Authority 56.1 Stmt. ¶ 13.) In 2011, when it was moved from Saint Peter's Church to the WTC Site, a short ceremony, which included a simple prayer, occurred. (Kagin Decl., Ex. 7.)

After the World Trade Center Site (" WTC Site" ) was listed on the National Register of Historic Places, the Lower Manhattan Development Corporation (" LMDC" ), which was created by New York Governor Pataki and New York City Mayor Giuliani, planned and conducted historic reviews of the WTC Site. (Port Authority 56.1 Stmt. ¶ ¶ 8-10.) Because of the WTC Site's historic status, the Port Authority needed to enter into various stipulations and to hold public hearings to ensure that, when it constructed the World Trade Center Transportation Hub, it had considered the impact on historic properties, including the cross. (Id. ¶ 11.)

On July 6, 2006, the Port Authority, the Foundation, the LMDC, and New York City entered into an agreement whereby the Foundation would assume responsibility for the operations of the Memorial and Museum. (Id. ¶ 14.) The Port Authority agreed to construct the Memorial and Museum and to fund some of the infrastructure. (Port Authority 56.1 Stmt. ¶ 15.) The Port Authority would allow the Foundation to use its property for the Memorial and Museum.[5] (Lee Decl., Ex. I, at 1-2.)

The Foundation has received significant financial support from the federal and New York state governments. (Pls.' Opp'n 9, 13.) Additionally, on August 6, 2010, President Obama signed into law the National September 11 Memorial and Museum Commemorative Medal Act of 2010, which creates a National Medal to commemorate the tenth anniversary of the September 11 attacks and " the establishment of the National September 11 Memorial & Museum at the World Trade Center." Pub. L. No. 111-221, § 2(a). The Act added a $10 surcharge per Medal to be paid to the National September 11 Memorial and Museum at the World Trade Center.[6] Id. § 7(a)-(b). In 2006, the New

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York State Assembly passed a bill that would prohibit charging admission to the Memorial or Museum, which was vetoed by Governor Pataki. Assem., 2006, A12032, (N.Y. 2006), vetoed Sept. 13, 2006.[7]

C. The Memorial and the Museum

Located outdoors on the former site of the World Trade Center, the Memorial commemorates the victims of the September 11, 2001 attacks and the 1993 World Trade Center bombings. (Foundation 56.1 Stmt. ¶ 4.) The cross has never been displayed at the Memorial, and there are no plans to display it there. (Id. ¶ 5.)

Currently unopened, the Museum will be located primarily underground, beneath the Memorial. (Id. ¶ ¶ 6, 10.) The Museum's mission is to document the history of the 1993 and 2001 events by including physical artifacts to tell its story. (Id. ¶ ¶ 8-9.) The Museum will have three separate exhibits: an Introductory Exhibition, a Memorial Exhibition, and a Historical Exhibition. (Id. ¶ 11.) To help demonstrate and document history, the Foundation plans to have approximately 1,000 objects on display, including physical artifacts, photographs, oral histories, video presentations, the cross, a fire truck, an ambulance, large beams from the debris, part of the World Trade Center's facade, and the last column (" Last Column" ) that was removed from Ground Zero. (Id. ¶ 10.)

The Historical Exhibition will tell the narrative of the September 11 attacks and the 1993 World Trade Center bombing by incorporating over 800 artifacts. (Id. ¶ 13.) Within the Historical Exhibition will be a section entitled " Finding Meaning at Ground Zero," which will portray how those at Ground Zero struggled to cope with the horrific situation they faced. (Id. ¶ 14.) To cope, some turned to religion, patriotism, or forging relationships with relatives of victims. (Id. ¶ 15.) In this section, the Foundation plans to include the cross.[8] (Id. ¶ 16.)

Surrounding the artifact, the Foundation plans to have text panels explaining its historical significance to the recovery effort.[9] (Id. ¶ 20.) Other objects of historical significance will also be in the section, including several pieces of " symbol steel," which is steel that ironworkers at Ground Zero cut into religious and non-religious symbols, such as a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline. (Id. ¶ 21; Paterson Decl., Ex. 4.)

On September 10, 2012, after the close of discovery, the Port and the Foundation entered into a Memorandum of Understanding to " clarify . . . their financial and operating relationship." (Kagin Decl., Ex. 5; Port and Foundation Memorandum of Understanding, at 1.) The New York and New Jersey Governors will designate people to serve on the Foundation's Finance and Investment Committee. (Id. at 2.) The Foundation and Port Authority will have quarterly meetings to review the Foundation's financial status, and they will

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have annual planning and budget meetings. (Id. at 2.) They also " agree to work together to obtain federal funding to subsidize the Memorial and Museum's costs of operations." (Id. at 2.) Additionally, the Memorandum of Understanding established a Site-wide Coordination Task Force to address the planning and implementation of activities at the WTC Site and a Major Event Planning Working Group; both will have representatives from the Port, the Foundation, and the City of New York. (Id. at 3-4.) The ...


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