“Plaintiffs’ brief should, at a minimum, clarify both the injuries alleged and legal theories relied on to support standing,” the court order said.
“The Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree," the court added, giving American Atheists until July 14 to respond.
The order was issued after the Becket Fund for Religious Liberty filed an amicus brief in the case, asking the court to look into the validity of the group’s claims, including one that said some atheists had experienced “stress, headaches, and indigestion” after reading about the display.
The Becket Fund says it filed the amicus brief because other defendants failed to address American Atheists' "frivolous" claims. “Courts should not allow people to sue just because they claim to get ‘dyspepsia’ over a historical artifact displayed in a museum," it said in a press release.
“Lawsuits for violations of the Establishment Clause should be limited to circumstances where the government is truly coercing people to engage in religious activity,” said Eric Baxter, a lawyer for the Becket Fund. “The Constitution is not a personal tool for censoring everyone’s beliefs but your own.”
Baxter also said that a recent U.S. Supreme Court decision, Town of Greece v. Galloway, which was also cited by the appeals court, provides legal precedent for those who want the 9/11 cross to remain in the museum, which officially opened on May 21.
In that ruling, the court upheld the right of local Christian leaders to open town board meetings with a prayer, ruling that “an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views.”
The 17-foot tall cross consists of two steel beams found in the World Trade Center rubble by a construction worker. In the days following the deadliest attack on American soil, it provided a source of solace for many of the rescue workers and was eventually placed on a pedestal and blessed by a Franciscan priest. It was later placed in the 9/11 museum as a historical artifact of that day.
"It belongs at this site, in the 9/11 Memorial Museum, and nowhere else," said Joe Daniels, president and CEO of the museum. "The cross embodies the story of the herculean efforts of the men and women who were on the front lines during the nine-month recovery effort after the 9/11 attacks on this country."
However, the American Atheists challenged the display in court, claiming that having a Christian symbol at a location that aimed to represent all 9/11 victims was “‘offensive,’ ‘repugnant,’ and ‘insult[ing]’” to them as atheists,” according to the court order. The lawsuit was dismissed in 2013, but American Atheists appealed the decision.
Last month, an American Atheists’ lawsuit challenging Internal Revenue Service’s (IRS) treatment of churches was dismissed. However another lawsuit regarding a statue of the Ten Commandments at the Oklahoma State Capitol survived a motion to dismiss.