Constitutional Law

10th Circuit: Utah memorial crosses violate establishment clause

By By The Associated Press

SALT LAKE CITY ? The 14 crosses erected along Utah roads to commemorate fallen state Highway Patrol troopers convey a state preference for Christianity and are a violation of the First Amendment?s establishment clause, a federal appeals court said yesterday.

The ruling reverses a 2007 decision by a federal judge that said the crosses communicate a secular message about the troopers? deaths and were not a public endorsement of religion. It's the latest in a recent rash of mixed-bag rulings on the public use of crosses.

A three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals said in its 38-page ruling that a "reasonable observer" would conclude that the state and the Utah Highway Patrol were endorsing Christianity with the cross memorials.

"This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP," the unanimous panel wrote in American Atheists, Inc. v. Duncan.

The 12-foot high white crosses with 6-foot horizontal crossbars are affixed with the patrol's beehive logo and a biography of the deceased trooper.

First erected in 1998, the monuments have been paid for with private funds and erected only with the permission of the troopers' families. Many of the 14 crosses are on public land.

Two men behind the cross project have said they selected crosses for the memorials because the image of a cross can simultaneously convey a message of death, remembrance, honor, gratitude and sacrifice.

In 2006, the Utah Legislature passed a joint resolution declaring the cross a nonreligious secular symbol of death.

But American Atheists, Inc., the Texas-based group that sued to have the crosses removed from state property, argued that the crosses could imply that the trooper who died there was a Christian.

The 10th Circuit agreed and said that while the cross is a widely recognized symbol of death, it is a specific Christian message.

"Unlike Christmas, which has been widely embraced as a secular holiday ... there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death," the judges wrote.

The 10th Circuit remanded the case back to the Utah-based federal judge and ordered him to issue a judgment in favor of the Texas group.

Utah attorney Brian Barnard, who represents the atheist group, said the ruling could mean the crosses would eventually be removed from the state's highways or moved to private property.

"My clients are not anti-highway patrol trooper and don't want to disrespect the troopers who have lost their lives," Barnard said. "But there are ways of honoring these troopers without emphasizing religion. We can honor them in such way that includes all Utahns whether they are religious or nonreligious."

Utah Attorney General Mark Shurtleff says he disagrees with the court and believes that most reasonable people simply see the crosses as death markers.

"When someone driving sees that white cross, what goes through their mind? Someone died here, and not Jesus Christ. The context of the cross on the side of the road, means death," he said. "What else would you put up?"

Shurtleff said no decision had been made on a possible appeal, but that the state could either ask for a review by the full panel of appeals court justices or petition for a hearing before the U.S. Supreme Court.

The courts have found that not all crosses convey religious messages. In 2008, the same Denver-based appeals court ruled that the logo for the city of Las Cruces, N.M., ? which means "the crosses" in Spanish ? was based on the city's unique name and history and was not a religious statement.

In California, a succession of crosses erected in Mojave National Preserve to honor America's war dead have been the subject of a legal dispute for about a decade after a former park service employee sued on grounds that the original cross was unconstitutionally located on government land.

Congress reacted by transferring land under the cross to private ownership. The Supreme Court refused in April to order the removal of the latest cross built on the land while a lower court considers whether the land transfer was legal.

Full post as published by First Amendment Center on August 18, 2010 (boomark / email).