Father Brian Jordan is finally emerging from a nightmare. For months, he had been named as a defendant in a suit brought by atheists who protested him praying before the “Trade Center Cross” after Sept. 11. The atheist group recently dropped their attack against Father Jordan — for now.

But the case continues, and it raises troubling questions about the emerging anti-religious, and specifically anti-Catholic, prejudices in American society, a prejudice only compounded by the Obama administration’s insistence on forcing Catholic institutions to violate their beliefs through the provision of health insurance for contraception services, including abortion-inducing drugs.

From the wreckage of the Twin Towers after the Sept. 11 attack, rescue workers found steel beams fused together in the shape of a cross. Many Christians working at the site in the days and weeks afterward found the object comforting. A Catholic priest, Franciscan Brian Jordan, blessed the cross, and services were performed there. He notes that “I spent many, many months ministering to the rescue workers at Ground Zero. Their spirits were uplifted by remembering that God is still with us, even when unimaginable disaster strikes. And the World Trade Center Cross became a source of inspiration for those workers.”

The cross is now located within the National September 11 Memorial & Museum on government property. That decision spurred a lawsuit by American Atheists, Inc. against the memorial, the Port Authority of New York and New Jersey, the state of New Jersey and other people and entities, including Father Jordan and his parish, the Church of the Holy Name of Jesus. The atheists want the cross removed from the memorial, despite it being an integral part of the history of 9/11 and its importance to many of the rescue workers.

What did Father Jordan and the church supposedly do wrong? According to the complaint, the church is “responsible for placing a religious symbol of Christianity on government-owned property in conjunction with a religious ceremony.” Other than praying, Father Jordan is not alleged to have done much at all; certainly, he was not in any position to demand the cross be placed anywhere. The complaint alleges that Father Jordan “conducted a religious ceremony directed at placing a symbol of Christianity on government-owned property.”

If all this sounds slightly ridiculous, it is. The Constitution quite clearly applies only to governmental actions that “establish” religion or prohibit the “free exercise” of the religious belief of a person or religious body. Private persons, even priests, cannot violate the First Amendment, because they are not government actors, unless they are acting in some way as an agent of the federal government. Here, neither the church nor Father Jordan is alleged to be a state agent, and their actions in praying and performing religious ceremonies before the cross represent no First Amendment violation.

Here there is no claim that such a thing happened, although the atheists imply there was some kind of nefarious activity. Father Jordan and others prayed at the foot of the cross. Neither he nor the church is responsible in any legal sense for placing the cross on government property. Even there, the complaint is unlikely to prevail. The complaint basically argues that the placement of the cross is injuring those who are not Christian and that their being “subjected to” such a cross is a violation of their First Amendment rights.

But this logic — though it has found some support in Supreme Court decisions — can easily be turned on its head. What about the majority of Christians who may feel a decision to reject inclusion of a cross-shaped object in a national memorial is an affront to their religious beliefs? Basing judicial decisions on such subjective matters is fraught with difficulty. The goal of such complaints seems simply to intimidate religious believers from living their faith publicly. The effect on Father Jordan was severe: “As a Roman Catholic priest, it is emotionally and spiritually distressing to be sued for doing little more than praying in public and voicing one’s opinion about where the World Trade Center Cross belongs.” That distress is likely to continue; if the atheists do not abandon their case, Father Jordan might well be a witness in the case, where the atheists will once again challenge his acting on behalf of his faith.

Unfortunately, this lawsuit is but one part of a concerted effort to exclude Christian witness and other religions completely from public life. The Health and Human Services mandate seeks to drive Catholics from public life and to restrain any action that secular authorities find objectionable. This lawsuit is, in some ways, even more pernicious: It explicitly associates the priestly function with unconstitutional and illegal activity. If anything, the lawsuit’s apparent goal was to stifle Father Jordan’s ability to minister in public. His freedom to practice Catholicism, however, is protected by the Free Exercise Clause of the First Amendment.

Applying the same Free Exercise Clause, the Supreme Court recently stopped the federal government from interfering in the composition of church leadership and ministry. Let us hope the court here will similarly block any future attempts to banish priests, and indeed all religious believers, from the public square.

Gerald J. Russello is editor of

The University Bookman (KirkCenter.org) 


and writes frequently on religious-liberty issues.