Out of the Tenth Circuit Court of Appeals comes a decision seemingly destined for the Supreme Court: 12-foot crosses erected by the Utah Highway Patrol Association on public land to memorialize fallen highway patrol officers “have the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion. They therefore violate the Establishment Clause of the federal constitution.”
- The UHPA is a non-profit that began the memorial project in 1998.
- The crosses were 12 feet tall so as to be easily visible to passersby at 55 miles per hour.
- The UHPA always sought permission from the officers’ families prior to erecting a cross memorial. No family ever objected to the cross symbol.
- The UHPA would honor any request to use a different symbol.
- Some crosses are on private land; some are on state land. American Atheists, Inc., the plaintiffs, brought the suit regarding the crosses on state land.
- Among other things, the plaintiffs sought the removal of the crosses from state property; an acknowledgement that the crosses violated their constitutional rights; and $1 million in nominal damages.
The defendants argued that the crosses were marked with a name and biography and therefore classified not as a religious symbol but a representation of death. The court agreed “that a reasonable observer would recognize these memorial crosses as symbols of death. However, we do not agree that this nullifies their religious sectarian content because a memorial cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian. The parties agree that a cross was traditionally a Christian symbol of death and, despite Defendants’ assertions to the contrary, there is no evidence in the record that the cross has been universally embraced as a marker for the burial sites of non-Christians or as a memorial for a non-Christian’s death. The UHPA acknowledges that when it asserts that it would honor the request made by a Jewish state trooper’s family to memorialize him with a Star of David rather than a cross.”
The UHPA also argued that crosses are commonplace roadside markers and thus are not religious. The court made short work of this argument. “[T]he mere fact that the cross is a common symbol used in roadside memorials does not mean it is a secular symbol. There is no evidence that non-Christians have embraced the use of crosses as roadside memorials.”
Ultimately, the court ruled the crosses violated the Constitution’s establishment clause because they could reasonably be viewed as endorsing Christianity. [Read the complete decision here (PDF)].
Reactions have been surprisingly mixed.
Elie Mystal at Above the Law:
[A]re we really living in a world where a simple cross to mark the death of a government worker violates the Establishment Clause?
Maybe it really is Opposite Day here at ATL. Don’t get me wrong, I’m not going as far as Justice Scalia — who, based on his remarks during oral argument in the Mojave cross case, contemplates a sect of Jewish war dead who would be more than happy to be buried under a Christian cross.
I’m just saying that if a religious symbol can be “secularized” at all, isn’t the cross pretty much already there when it comes to memorializing dead people?
Eugene Volokh at the Volokh Conspiracy examined the likely outcome of an appeal the Supreme Court:
[F]ive of the U.S. Supreme Court’s nine members seem likely to disapprove of the endorsement test — Justices Scalia, Kennedy, and Thomas are on the record as opposing the test, and Chief Justice Roberts and Justice Alito seem likely to take the same view. So that might be a reason for the Justices to take the case, which doesn’t have the procedural complexities of this year’s Mojave cross case (Salazar v. Buono).
Bonus reaction! Robert Kirby, one of the two men who originated the memorial idea, writes in the Salt Lake Tribune:
[T]oday’s column is about what a bunch of rotten bastards atheists are. They’re destroying America, you know. Their opposition to religious symbols posted on public lands is bound to make God so mad that eventually he’ll take it out on all of us.
Note: I’m only repeating what so many religious people are saying about atheists right now. Truthfully, I don’t have a problem with them, and that includes their lawsuit. If they object to the crosses, they should sue us. This is America. That’s how this sort of thing works.
Turns out that’s just what happened.