In Camdenton, Missouri, a county commission is facing the threat of a lawsuit for a painting hung on a courthouse wall in remembrance of the terrorist attacks of September 11, 2001. A year after almost 3,000 people were killed in the worst terrorist attack on American soil, a local high school student painted an image of a firefighter and young girl pointing to the “Ground Zero Cross,” a cross-shaped steel beam pulled from the rubble of Ground Zero in New York City and mounted on a platform. After the attacks, rescue and recovery workers found comfort in this new memorial, and the Camden County community saw the painting as a marker for a period of renewed national unity after catastrophic loss of life.

Commissioners called a public hearing after an activist secularist legal group, Freedom From Religion Foundation (FFRF), demanded its removal. Despite the specter of high legal fees to defend the painting in court, residents are holding fast.

“What say ye, if it costs Camden County a tremendous amount of money. Does the painting stay?” a commissioner asked.

Most, if not all, hands were raised. Voices from the crowd shouted: “We have people in the hall, too.” “Raise my taxes!”

Legal arguments grounded on the so-called principle of the “separation of church and state” are based on the First Amendment’s Establishment Clause of the U.S. Constitution.

FFRF argues that the painting’s depiction of a cross-shaped beam constitutes an endorsement of Christianity, and thus, a violation of the separation of church and state. It dismisses the fact that a federal appellate court held that the very Ground Zero Cross depicted in the Camden County courthouse painting passed constitutional muster after a challenge to its exhibition in the National September 11 Museum by another secularist legal group.

Recent letters released en masse by FFRF demonstrate that the group’s understanding of the Establishment Clause fails to account for Supreme Court precedent that grounds its reasoning in the original meaning of the text of the U.S. Constitution rather than cut-and-paste phrases from previous Court opinions. In Marsh v. Chambers (1983), Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), and Town of Greece v. Galloway (2014), the Supreme Court shows that it is increasingly relying on legal history, which recognizes the role religion has played in our nation, to decide various government actions.

The Supreme Court has not made clear whether this look at historical practices will be the standard under which courts consider establishment clause challenges to religious symbols located on government property. Hopefully, this will change now that the Court is slated to decide whether a war memorial in the shape of a cross and maintained by a local government can stand under the Establishment Clause. We have submitted a brief in that case urging the Court to recognize the pivotal role of religion in society and commemoration and to let the cross stand.

But even under the most subjective legal standard, which the Court put forth in Lemon v. Kurtzman (1971) (looking at the primary effect of a government action, the purpose of the action, or the extent to which the action entangles government with religion), the courthouse painting passes muster. The local artist’s sister-in-law said it best: “I think it’s sad, that this many years later, we’re all here. I obviously see [a cross] . . . but I see it as a symbol of hope and a reminder to what we’ve lost.”