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Split 10th Circuit Denies En Banc Review In Utah Highway Patrol Cross Case

By Howard M. Friedman

The 10th Circuit Court of Appeals this week by a 5-4 vote denied an en banc rehearing in American Atheists, Inc. v. Davenport, (10th Cir., Dec. 20, 2010). The 4 dissenting judges filed two opinions detailing their concerns about the 3-judge panel's ruling handed down in August. That decision held that the Utah Highway Patrol Association violated the Establishment Clause when it put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. (See prior posting.) Urging en banc review, Judge Kelly writing for all four dissenters said:

The court?s decision continues a troubling development in our Establishment Clause cases?the use of a "reasonable observer" who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion.

A second dissent from denial of review written by Judge Gorsuch and joined by Judge Kelly said in part:

Our court has now repeatedly misapplied the "reasonable observer" test, and it is apparently destined to continue doing so until we are told to stop.... It seems we must ... take account of our observer's selective and feeble eyesight. Selective because our observer has no problem seeing the Utah highway patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper?s name posted directly above the insignia.

[Thanks to Don Byrd for the lead.] 

Full post as published by Religion Clause on December 22, 2010 (boomark / email).