2nd Circuit: World Trade Center Recovery Did Not Violate Free Exercise Rights

In World Trade Center Families for Proper Burial, Inc. v. City of New York, (2d Cir., Dec. 23, 2009), the U.S. 2nd Circuit Court of Appeals rejected an attempt by families of 9/11 victims to force New York City to reclaim the finely-sifted residue of the World Trade Center debris now at the City's Fresh Kills landfill in Staten Island and move it to a more suitable location, and to create a cemetery for the 1,100 who perished without identifiable remains. They argue that the sifted residue itself has become hallowed.

One of the claims put forward by plaintiffs was that the City's recovery efforts violated their right to the free exercise of religion. The court rejected the claim, concluding that the City's efforts did not target religious beliefs and that the City had a compelling interest in clearing the World Trade Center debris efficiently and economically. The court also rejected plaintiffs' due process claims, holding that they have no property interest in unidentifiable human remains, and that their dissatisfaction with the way the city handled recovery efforts did not rise to the level of a constitutional violation. The court concluded:

On a human level, plaintiffs' claims are among the most compelling we have ever been called on to consider. They have endured unimaginable anguish, and they seek nothing more than the knowledge that their loved ones lie in rest at a place of their choosing. We regret that we cannot bring them solace...

The decision was handed down only a week after the court heard oral arguments in the case. The New York Times reported on the arguments.