| SALT LAKE CITY — Fourteen crosses alongside Utah highways and roads that memorialize fallen state troopers are unconstitutional and must be removed, a federal appeals court ruled August 18 in a case that could end up before the U.S. Supreme Court.
A three-judge panel of the U.S. Tenth Circuit Court of Appeals unanimously ruled that the 12-foot white crosses have state approval, amount to an unconstitutional government establishment of religion. Each cross has the trooper's name, rank and badge number, along with the year he or she died, biographical information and a picture. It also has the Utah Highway Patrol official symbol. The program, started in 1998, places the cross as near as possible to the death site.
The organization American Atheists filed the suit, with one of the plaintiffs even saying he occasionally altered his travel route to avoid seeing a cross. Supporters of the crosses say they will appeal the decision, either to the full Tenth Circuit or to the Supreme Court.
The crosses themselves are privately funded, although most of them are on public land. There are more than a dozen of them statewide.
"[W]e conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity," the court ruled in a 35-page decision that reversed a lower court. "The memorials use the preeminent symbol of Christianity, and they do so standing alone (as opposed to it being part of some sort of display involving other symbols). That cross conspicuously bears the imprimatur of a state entity, the [Utah Highway Patrol], and is found primarily on public land."
Although the Tenth Circuit cited Supreme Court precedent, supporters of the crosses say the high court already addressed the issue in a recent opinion. In an April decision in which the Supreme Court allowed a cross to remain in the Mojave Desert, Justice Anthony Kennedy, writing for a 5-4 majority, asserted that the "goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.
"A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs," Kennedy wrote in the case, Salazar v. Buono. "The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society."
The Tenth Circuit panel acknowledged the Salazar decision but said the Supreme Court "did not address the merits of the Establishment Clause claim" against the Mojave Desert cross. In that case the Supreme Court did not get to the Establishment Clause question but instead returned the case to the lower court with instructions for further consideration.
Legal groups who support the Utah crosses expressed optimism.
"One atheist group's agenda shouldn't diminish the sacrifice made by Utah highway patrol officers and their families. The families of the fallen should be allowed to honor their loved ones as they wish," said Byron Babione, an attorney with the Alliance Defense Fund, which was allowed to intervene in the case.
"Individualized memorial crosses honoring fallen troopers simply do not amount to a government establishment of religion. And the mention of the validity of roadside crosses by the Supreme Court in a recent decision is certainly an encouraging sign for our case on appeal," Babione said.
Conservative groups are hopeful the Supreme Court eventually will establish new precedent on such church-state cases. The Supreme Court's last major similar decision came in 2005 when it issued a split decisions in a pair of Ten Commandments cases, allowing a Texas monument to stand while ordering one in Kentucky to be removed. Both rulings were 5-4, with Justice Stephen Breyer — a member of the liberal bloc — the only justice to switch sides.
Since then, the makeup of the court has changed significantly and grown more conservative. Specifically, Justice Sandra Day O'Connor — a moderate who voted in both cases to remove the Ten Commandments — was replaced with a conservative, Samuel Alito.
In the Utah case the Becket Fund for Religious Liberty filed a friend-of-the-court brief on behalf of itself and the states of Colorado, Kansas, New Mexico and Oklahoma, asking that the crosses be allowed to remain.
"The Constitution does not require stripping government property of all religious symbols — especially when those symbols are privately owned, privately funded, and privately maintained," said Luke Goodrich of the Becket Fund for Religious Liberty. "When the government allows private speech on public property, it cannot discriminate between secular and religious speech and muzzle only the religious."
The panel was made up of two nominees of President Reagan (Deanell Reece Tacha and David M. Ebel) and one of President George W. Bush (Harris L. Hartz).
The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
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