On March 28, a group of atheists in New York lost round one in their legal battle to keep the "Ground Zero Cross" out of the National September 11 Museum in lower Manhattan.
Federal Judge Deborah Batts ruled that the object - two steel beams in the shape of a cross that survived the collapse of the World Trade Center on 9/11 - may be displayed in the memorial museum without violating the Establishment clause of the First Amendment. (American Atheists Inc. v. Port Authority of NY and NJ).
The court acknowledged that many Americans see these steel beams as a symbol of religious hope and meaning.
After all, during the recovery at the site, worship services were held in front of the cross. And in 2011, when it was moved back to ground zero from the grounds of a nearby church where it had been temporarily housed, a priest led a ceremonial blessing of the cross.
But for First Amendment purposes, it doesn't matter how many citizens see the cross as the Cross. What counts constitutionally is how the government uses the object.
As Batts explained in her decision, a "reasonable observer" would understand that the cross is part of a historical exhibit in a memorial museum that includes hundreds of secular artifacts. In that context, viewers are highly unlikely to see the cross-shaped beams as government endorsement of Christianity.
American Atheists calls this ruling an "injustice" and vows to appeal.
At issue in this case - and in the growing number of cases challenging all religious symbols in public spaces - are two very different views of "separation of church and state."
Batts, correctly in my view, holds that the First Amendment separates church from state, but not religion from public life.
In other words, the Establishment clause prohibits the government from setting up a religious shrine at ground zero, but does not bar a publicly supported memorial museum from including religious objects or images that inspired recovery workers, victims' families and the general public.
By contrast, American Atheists advocates an "absolute separation of church and state," which would appear to call for a society in which public spaces are entirely religion-free zones.
But "separation" taken this far is no friend of religious liberty.
For James Madison, Thomas Jefferson and other early supporters of church-state separation, authentic religious liberty requires that government remain neutral toward religion while simultaneously upholding the right of religious people and institutions to participate fully in the public square of America.
Ignoring the role of religion - in this case by excluding an artifact with religious significance from a publicly financed museum - is hardly "neutral." On the contrary, such exclusion sends a message of government hostility to the religious.
The First Amendment does not guarantee atheists or anyone else "freedom from religion." Frequent exposure to religious symbols and messages is inevitable in our religiously diverse society.
The First Amendment does, however, guarantee "freedom from government-imposed religion" - a core condition of liberty of conscience.
Including the "Ground Zero Cross" in the 9/11 Memorial Museum acknowledges the religious meaning of that tragic day for millions of Americans - without in any way creating a state establishment of religion.