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Tenth Circuit finds memorial crosses along highways unconstitutional

By Ann Riley

[JURIST] The US Court of Appeals for the Tenth Circuit [official website] on Wednesday ruled [opinion, PDF] that crosses placed beside Utah highways as memorials to deceased Utah Highway Patrol (UHP) [official website] troopers is an unconstitutional government endorsement of religion. In 1998, the Utah Highway Patrol Association (UHPA) [non-profit website] erected 14 12-foot-high cross memorials displaying the fallen troopers' name, rank, badge number and the official UPH symbol. The memorials were paid with private funds, but most were placed on public lands. American Atheists [advocacy website] brought the suit to remove the crosses from state property. The UHPA argued that the memorial crosses conveyed "the simultaneous messages of death, honor, remembrance, gratitude, sacrifice, and safety." The court found that the cross is specific to Christianity, stating:

[W]e conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. ... [T]he fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity. This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP - both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways.

The court remanded the case to the US District Court for the District of Utah [official website] to find a judgment in favor of American Atheists. In 2007, the district court held [opinion, PDF] that the "memorial crosses at issue communicate a secular message" and that a "reasonable observer ... would not view the memorial crosses as a government endorsement of religion." In 2006, the Utah Legislature [official website] passed a joint resolution [text] supporting the use of crosses as roadside to honor troopers.

In April, the US Supreme Court [official website] ruled [JURIST report] in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. The dispute concerned a Latin cross on a rock outcropping in the Mojave National Preserve. The display of the cross on public property had already been found in violation of the Establishment Clause [Cornell LII backgrounder], so the government sought to transfer the portion of land on which the cross was located to a private entity. In March, the US Court of Appeals for the Ninth Circuit [official website] ruled that a teacher-led recitation of the Pledge of Allegiance [JURIST report] in public schools does not violate the Constitution's Establishment Clause. The court also upheld the use of the phrase "In God We Trust" on currency. In November, the US Court of Appeals for the Third Circuit [official website] ruled that a school district's policy prohibiting the performance of religious holiday songs [JURIST report] does not violate the Establishment Clause. Also that month, a judge for the US District Court for the District of South Carolina [official website] ruled that license plates [JURIST report] produced by the state bearing a picture of a cross in front of a stained glass window and the words "I Believe" violate the Constitution.

Full post as published by JURIST - The Paper Chase on August 19, 2010 (boomark / email).