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Religious Tolerance logo

Christian crosses and other highway memorials

Utah (Cont'd)

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This topic is a continuation of a previous essay

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Activity after the decision by the 10th Circuit Court of Appeals:

According to USA Today News:

"[During 2010-DEC,] when the 10th Circuit denied the patrol association’s request for a rehearing, dissenting judges who wanted to reconsider the matter said the majority appeared to be trying to purge from the public sphere anything related to religion." 7

During 2011-JAN, the court stayed its ruling for 90 days so that the 14 crosses that had already been placed beside highways in Utah would not have to be removed pending an appeal to the U.S. Supreme Court.

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Appeal of American Atheists, Inc. v. Duncan to the U.S. Supreme Court:

According to USA Today News:

"In its appeal to the high court, the Utah Highway Patrol Association urged the court to clarify the rules for determining when a public display might signal endorsement of religion. The association said lower court judges have been particularly confused by the Supreme Court’s rationale from a pair of 2005 rulings.

Six years ago, by separate 5-4 decisions, the high court struck down the posting of the Ten Commandments on plaque at two Kentucky courthouses, yet ruled that a granite Commandments monument on the grounds of the Texas Capitol could stay.

In 2010, a dispute over a cross erected in the Mojave National Preserve came before the justices. While that case did not yield a ruling on the constitutionality of the cross on federal land, a five-justice majority voiced a rationale that could in future cases bolster government’s ability to allow religious symbols on public land." 7

Ted Cruz, the former Texas Solicitor General, agreed to represent Utah in the case. He said:

"Memorials that are legal in one state are now illegal in other states... Similarly, religious tombstones may be permitted on tombstones in Arlington National Cemetery in Virginia, but not in veterans' cemeteries in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah. Because of the deep confusion in the law, it is difficult to predict ex ante which displays will be held constitutional and which unconstitutional."

The term "ex ante" (also spelled ex-ante, exante) is a Latin term meaning "before the event" -- that is, in advance.

During 2011-APR, the Attorney General of Utah appealed the case to the U.S. Supreme Court. 1

On 2011-MAY-23, Law Professor Eugene Volokh posted an essay at his group blog "The Volokh Conspiracy." He notes that five of the Justices on the U.S. Supreme Court dislike "... the so-called endorsement test, which holds a government action invalid if a reasonable observer would consider it an endorsement of religion." He wrote:

[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." 2

Jay Sekulow, chief counsel of the American Center for Law and Justice -- a fundamentalist Christian legal advocacy group -- wrote in a press release:

"This is just another troubling example of the courts being used to remove symbols to honor those who have given their lives in service to others - in this case, Utah Highway Patrol officers."

"The mere existence of a religious symbol in a public place need not trigger a constitutional crisis. The Supreme Court recently noted that the Constitution does not prohibit, but rather accommodates such symbols. We're hopeful the high court will take this case and reverse the appeals court decision, clearing the way for the highway crosses to remain in place." 3

The American Legion, represented by Liberty Institute -- another fundamentalist Christian legal advocacy group -- filed an amicus curia brief ["friend of the court" brief] asking the Supreme Court to overturn the Court of Appeals decision. Kelly Shackelford, president of Liberty Institute, said:

"Crosses are one of the most common symbols used to memorialize and honor our fallen heroes. When you see a white cross with the name of a patrol officer beside a road, you immediately think of the officer's sacrifice. It is ridiculous to suggest that placing these crosses is anything other than honoring those who gave the ultimate sacrifice in defense of our safety and liberty." 4

Needless to say, American Atheists oppose review of the Court of Appeals decision by the Supreme Court. Their attorney, Brian Barnard, suggested that the Supreme Court not review the case because the ruling of the Court of Appeals only has an impact in Utah; it does not apply outside of the state. He said:

"There are no similar [publicly funded] memorial cross programs in other states. This decision is not going to have ramifications beyond Utah. While of concern to the Utah Highway Patrol Association, the case is not the kind of case nor of such national interest, that the U.S. Supreme Court would normally get involved in. ... My clients believe that the Highway Patrol troopers should be honored for their sacrifice. They can be and should be honored with memorials that do not emphasize religion and do not emphasize one religion to the exclusion of all others. ... These large white crosses, especially the two on the front lawn of the UHP office in Murray, are so religious in nature, that the 10th Circuit Court of Appeals held that their display with the official UHP logo constituted the establishment of religion in violation of the First Amendment." 5

The Supreme Court was in recess and not scheduled to return until 2011-OCT, after the justices end their current recess.

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2011-NOV-01: Supreme Court rejects case:

On the day after Halloween/Samhain, the court announced that it decided to refuse to hear the appeal of the memorial crosses case, Utah Highway Patrol Association v. American Atheists. Justice Clarence Thomas was the only dissenting voice. He wrote a 19 page document saying, in part:

"Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles."

This means that the Court of Appeals decision is final. The crosses are considered to be an endorsement of religion over secularism, and of Christianity over other religions. The 14 crosses will have to be removed. They could presumably be replaced by simple rectangular signs, or signs in another shape that has no religious significance.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jennifer Dobner, "Utah asks U.S. Supreme Court to hear crosses case," Associated Press, 2011-APR-20, at:
  2. Eugene Volokh, "A possible endorsement test for the U.S. Supreme Court," The Volokh Conspiracy, 2010-AUG-18, at:
  3. Melanie Hunter-Omar, "Supreme Court Asked to Hear Highway Cross Case," CNS News, 2011-MAY-24, at:
  4. "The American Legion Defends Memorials to Fallen Utah Highway Patrol Officers, Asks Supreme Court to Hear Case Says American Atheists, Inc.’s Attack on Roadside Crosses Will Endanger Veterans Memorials." Liberty Legal, 2011-MAY-20, at:
  5. Melinda Rogers, "Attorney: Supreme Court shouldn’t waste time on roadside crosses case," Salt Lake City Tribune, 2011-JUL-26, at:
  6. "Supreme Court rejects Utah cross case," Christian Broadcasting Network, 2011-NOV-01, at:
  7. Joan Biskupic, "Justices avoid highway cross dispute," USA Today, 2011-OCT-31, at:

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Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2011-AUG-07
Latest update: 2011-NOV-03
Author: B.A. Robinson

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