Utah Cross Case Rehearing Denied; Next Stop SCOTUS

by Brittany Meyer

Just in time for the Northern Hemisphere’s winter solstice, the 10th Circuit declined an en banc review of a previous ruling that 14 large white crosses used as roadside memorials for fallen troopers on public land in Utah violated the Establishment Clause because it gave the appearance of endorsing Christianity.

In other words, the atheists have won the case, and the Circuit Court declined to reverse the ruling.

As it stands, the following cross is still officially an endorsement of Christianity:

Procedurally, here’s what happened: rather than drag the entire court out of bed for a case, decisions at the appellate level are sometimes made by a panel of three judges. The losers can then request an “en banc” rehearing in front of all the judges currently on the bench. The Utah state government did this, but their request was rejected.

After an en banc decision (or a denial of review), the only place left to go is the Supreme Court. Will the state government pursue this route? We don’t know yet.

Substantively, though, this ruling is peculiar considering the Supreme Court spoke explicitly about crosses on the side of freeways in dictum in the majority opinion for Salazar v. Buono earlier this year — they said crosses were not necessarily an endorsement of Christianity:

“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. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” Salazar v. Buono, 559 U.S. (2010).

Doesn’t that passage lend support to the opposition?

Though the original 10th circuit opinion came out about four months after Salazar v. Buono, the majority does not mention this legally persuasive paragraph. The two dissents in the denial for rehearing both mention the paragraph, showing that the majority knew about — and then rejected — the notion that Salazar mandated a reversal.

What does this mean? It’s possible the Supreme Court could take up this case and use their own past decision to overturn the Duncan case, thus ruling against the atheists.

One difference in the cases is Salazar uses the a full Lemon analysis in its decision and American Atheists v. Duncan uses the more simple Establishment Clause Endorsement test in arriving at the opposite result.  The Endorsement test asks whether a government action creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. The Lemon test uses a 3 prong approach where each prong must be met in order for an action to be valid.  Right now, both of these are a legitimate way to decide Establishment Clause cases, but current jurisprudence seems to prefer the Lemon analysis.

It’s possible the Supreme Court will take on Duncan and use it to overturn the Establishment Clause Endorsement test. The test is easier to meet than the more complicated Lemon test, so its reversal would change how the church separation community will go about framing arguments.

It is unfortunate that even in the highest court in the nation, a true separation of (Christian) Church and State fails to exist. Maybe in the next Court.

  • Jonas

    Practically, (after reading about this the first time) – I’m wondering what other marker the state could use to honor the fallen troopers.

    1st – Are these meant to be permanent markers, or not? — If not, then flowers or something similar will do.
    — If permanent, what symbol should they use?

    — Catholic Crosses have the Jesus figure on them, so these are not Catholic Crosses.
    — Are they assuming all officers are Protestant Christian?

    — It would be nice if they could come up with a more neutral symbol.

  • http://www.atheistattorney.com AtheistAttorney

    It’s pretty clear that the rationale for using a cross as a marker is religious. If Utah didn’t care about the kind of marker used, it would hire a graphic designer and use a different symbol. It’s much cheaper and more efficient than litigating the issue.

    That said, they’re willing to fight because they want to keep using government to spread religious iconography. At least they had the decency to meet with the deceased’s family members for approval before putting a cross on the side of the road.

  • Claudia

    @AtheistAttorney that’s very interesting. Is it known if they offered alternative symbols for families of different faiths? If they don’t have a default cross but allow each family to decide on the symbol (like the armed forces do), would this affect the legality of the case?

  • http://www.phoenixgarage.org/ cr0sh

    How about no markers? Why even force this kind of thing on the public at all? Does the public even care?

    These markers, along with the “private” ones people put up all over the place, make me wonder why they are even there in the first place. It certainly doesn’t seem like its for the person who died; instead, it seems like its all about selfish reasons. Or maybe its an unwillingness to end the grieving process? Perhaps people do this because cemeteries are a cold reminder of their own future demise?

    Grow up, and face the facts.

    You want honor the person? Then do it in private, at the gravesite in the cemetary, or with the urn on the mantle. Quit cluttering up the highways, streets, roads, intersection corners and other such areas with seemingly selfish “look-at-me-the-emo” roadside memorials. If you must have a separate memorial, put it on private property.

    We die. Sometimes “peacefully”, sometimes violently. That is life. We don’t go to heaven. We become worm food. Hopefully, while here, we made somebody’s life better in some manner. Grieve for dead, then move on and live life.

  • Ubi Dubius

    The paragraph in the earlier case is “dicta” and is not binding on lower courts, or even the same court. It sheds light on how the court is thinking, so should not be ignored.

    Dicta is information/argument/examples in an opinion that is not necessary to the decision the court made.

  • Brian Westley

    Is it known if they offered alternative symbols for families of different faiths? If they don’t have a default cross but allow each family to decide on the symbol (like the armed forces do), would this affect the legality of the case?

    From the decision:
    Before erecting any memorial, the UHPA obtained the consent of the fallen trooper’s family. None of these families have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, “[b]ecause [the UHPA] exist[s] to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family.”[2]

    2. Notwithstanding the UHPA’s position, the State Defendants, in oral argument before the district court and in their briefs and argument before us, asserted that they would not allow any change in the memorial, whether to accommodate other faiths or otherwise.

    The UHPA say yes, but that’s a private organization, not the state. State officials said they would not allow any changes. It looks like any changes would result in the state refusing such a proposed memorial to be used on state land.

    PS: Whenever I see Christians arguing that crosses aren’t “really” religious symbols, I’m always reminded of when Peter purportedly denied Christ.

  • Cdahumanist

    Someone asked if the markers are permanent. I saw a couple of these while driving through Utah recently. They are huge (10 to 12 feet), made out of steel and set in concrete in the ground. The ones we saw were not just random side of the road locations but rather more prominent locations such as a major highway intersection or hilltop overlooking the highway and reststop. To me they were offensive and obnoxious.

  • Non-Litigious Atheist

    @AtheistAttorney: Are you going to increase hatred for atheism the way Gloria Allred increased hatred for feminism?

  • Vanessa

    I’m on the side of I don’t really care. Yes, crosses are inherently religious, but I don’t think using it as a death memorial is necessarily supporting any religion.

  • Emanuel Goldsein

    crOsh, you are an excellent example of the atheist without empathy, who obviously does not give a crap about anyone else.

    Keep up the great work. If atheists win a few more cases like this, they really will be the most hated group in America.

  • AxeGrrl

    I’ve gotten involved in a few debates with people who argued that ‘crosses represent loss of life, not Christianity specifically’, and one guy I engaged with said ‘just because people make that association with the symbol (Christianity with the cross) doesn’t mean that’s what the symbol means…..

    This person claimed that he didn’t see any primary relation between the symbol of a cross and Christianity (apparently because the cross had a different meaning in the distant past). To make the point to him that symbols almost always take on new/different meanings as time passes, I said to him: ‘Then go put a swastika on a synogogue and claim that it represents “power, strength and good luck”.

    His reply? ‘All you are showing is their ignorance’. Meaning that people who see a swastika and think of Nazism are ‘ignorant’ to do so.

    Amazing.

  • AxeGrrl

    Jonas wrote:

    It would be nice if they could come up with a more neutral symbol.

    How about this? :)

    death symbol

  • Non-Litigious Atheist

    @Emanuel Goldsein: What I don’t get is that atheist organizations are supposed to be about making atheists less ostracized, but most of them invest almost all of their energy into doing things that predictably make atheists more hated. Someone dares to memorialize their dead loved ones? Sue the bastards! Cuz we just can’t have that going on, can we?

    What’s next? Why not sue to make government workers work on a weekday Christmas? That’ll make us popular with government workers! And if the litigious atheists wouldn’t do that, why not? A federal holiday with “Christ” in it? Why not force the government to change all references to Christmas to Xmas? Why not call Chanukah go to work with candles day?

    Alienate anyone who is not an atheist is the name of the game. Piss off 9 of out 10 of the people in the room with you. Real freakin’ bright Einsteins!

    Where do these people get their priorities? Going after memorial markers is way over the top in my opinion.

  • AxeGrrl

    I’m in the ‘as long as each family is personally consulted and they’re the ones who get to decide what symbol to use to represent their deceased loved one, then I don’t care’ camp.

    And if all those families would have chosen crosses, then fine.

  • Cdahumanist

    Non-litigious atheist: You don’t seem to understand the idea of “if you give them an inch they’ll take a mile.” Crosses and other religious symbols used by the public on private land is okay but it’s not okay on public land. Not even if it’s a just a little bit which seems to be the rationale for your argument.

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  • Pickle

    Kind of off subject, but I never understood why christians used the cross as their symbol anyway. The cross was a Roman execution device. It just seems really morbid to me to have them everywhere. Could you imagine people walking around with little electric chairs around their necks? =)

  • Reginald Selkirk

    Jonas: Practically, (after reading about this the first time) – I’m wondering what other marker the state could use to honor the fallen troopers.

    They died in service to the state, which has nothing to do with their religious identity. States have plenty of symbols, flags for instance. Or, note the beehive, the state symbol of Utah, placed on the cross so people understand that it is a state thing. Why not have the beehive without the cross?

  • http://knowledgeisnotveryfar.blogspot.com/ Jake

    Cdahumanist Says:
    “I saw a couple of these while driving through Utah recently. To me they were offensive and obnoxious.”

    This is a rather hypocritical argument. How many signs have atheist groups been putting up with the purpose of pissing off believers? And whenever someone has the audacity to get offended over atheists calling their beliefs a “scam” atheists just tell them to “look the other way if it offends you”. Yet heaven forbid if something offends your delicate little atheist sensibilities.

  • Non-Litigious Atheist

    Crosses and other religious symbols used by the public on private land is okay but it’s not okay on public land. Not even if it’s a just a little bit which seems to be the rationale for your argument.

    @Cdahumanist: My rationale is pretty simple and pragmatic. Many actions have certain predictable costs and benefits:

    1. Suing to remove heroes’ memorials will get you almost universally negative media attention – and reader reaction – about atheists making frivolous lawsuits, reinforcing negative stereotypes about ‘those damn atheists at it again’. Let’s call that what it is – a cost.

    2. Suing might also get the heroes’ memorials taken down. Let’s call that a benefit, even though it’s debatable that it is a benefit.

    Now ask yourself: Does the benefit outweigh the cost?

    The first consequence concerns me a lot. I’d like to live a life like everyone else, only personally free from religion. But if my atheism is ever discovered, I don’t want religious relatives and neighbors to think I’m some rancorous curmudgeon like Madalyn Murray O’Hair or Michael Newdow. Ask yourself whether you would prefer to live next door to a neighbor who files a number of lawsuits every other year, or a neighbor who has never sued anyone before. Then you’ll see why you might not want to project that image of yourself.

    The second consequence concerns me hardly at all. If the cross remains in place, I am not harmed by that in any tangible way. If the cross comes down, I am not helped by that in any tangible way. The preservation of the cross causes me no misery, and the removal of the cross brings me no happiness. Preservation is not a loss and removal is not a win. Either outcome is neutral.

    But whether my neighbors secretly despise me is not neutral. To the extent that I can control it, I would prefer my neighbors let their kids play with my kids, give me a lift when I need it instead of not, etc.

    Crosses have been standard markers for remembering the dead for a long time. When used as a memorial a cross only has superficial religious overtones. The costs of going after merely cosmetic things like this don’t even come close to outweighing the benefits. The benefits are negligible if they exist at all, and the costs are tangible ones that I’ll really feel – which is something I can’t say about the preservation or removal of heroes’ memorials. It just strikes me as pissing in someone’s pool – don’t be surprised if they don’t invite you back.

  • Emma

    @Cdahumanist: I tend to agree with you, but (I think) a large part of Non-Litigious Atheist’s argument was about public perception. It’s not hard to see why a lot of people would think that suing someone just for putting up memorials to fallen state troopers is a really douchey thing to do. Particularly because a lot of people might reasonably think “The crosses aren’t hurting you, what’s the big deal?!”

    Again, there may be good reasons to think the cross is a big deal. But not everyone sees it that way, so they’ll still think atheists are jerks for raising a stink over this.

    Personally I tend to sympathize with the “crosses aren’t hurting anyone” argument. That said, is it really so hard for the defendants to just find a more secular way to memorialize the troopers?

  • http://www.facebook.com/profile.php?id=100000586562927 Donna Hamel (muggle)

    You want honor the person? Then do it in private, at the gravesite in the cemetary, or with the urn on the mantle. Quit cluttering up the highways, streets, roads, intersection corners and other such areas with seemingly selfish “look-at-me-the-emo” roadside memorials. If you must have a separate memorial, put it on private property.

    Hear! Hear! I second that! Enough with the maudlin displays and the crocodile tears while blatantly ignoring the ills in our society that causes these tragedies in the first place.

    I can’t for the life me see how anyone describes a cross as anything other than a religious symbol. As for all those saying it doesn’t hurt you to have the cross universally used as a memorial symbol on public land, I say bullshit! At best, it gives the impression that all heroes are Christian! How’s that for your Atheist (or anything else other than Christian) image?

    It is yet again an injection of Christianity into every fucking facet of our society like it or not and if you don’t eat shit and die.

    My grandson wants to be a policeman when he grows up. If he does become one when he grows up and dies in the line of duty, don’t freaking “honor” him in this way. At most, put up a memorial marker — you know one of those little plaques they put here and there where something historic happens.

    I’d be at his grave anyway. Last place I’d want to hang around is somewhere somebody put a bullet in him.

  • Reginald Selkirk

    Jake: This is a rather hypocritical argument. How many signs have atheist groups been putting up with the purpose of pissing off believers?

    Hey Jake, it is not hypocritical to think that it is OK for a private individual to be offensive on private land, and yet to think that the government should not be offensive on the topic of religion on public land.

    How many of those atheist signs have been government funded and placed on government land by the government?

  • Reginald Selkirk

    Suing to remove heroes’ memorials will get you almost universally negative media attention

    OK, here’s a different tactic: An atheist group decides to honor the public servant heroes with a monument consisting of a large red A for each, funded by the atheist group, and ask that it be placed on public land beside the crosses.

    This will presumably not be acceptable, but then it is up to the government to decline the gift, which will trigger a lawsuit about equal treatment.

  • http://www.banalleakage.com martymankins

    Being a Utah resident and reading this back and forth in the local paper has left me wondering why are they fighting this so hard? First off, the LDS religion doesn’t use the cross as a point of worship, which it seems prominent members of that church are fighting to keep the crosses. Seems a bit of a dichotomy.

    Secondly, why not some sort of headstone. That’s a pretty universal symbol of death. While it’s mostly associated with cemeteries, I see nothing wrong with using something like that on a public roadside where a trooper lost their life.

    Any signs or memorials that automatically assume the deceased person was religious (and of a religion that believes in such symbols) is wrong.

  • casual reader

    Just FYI, the Duncan panel DID use the whole Lemon test. It just held that the first two prongs of Lemon (excessive entanglement & religious purpose) were met, but the third (endorsement) was not.

    Lemon & the endorsement test are not two separate legal standards. Rather, the endorsement test is the third prong of Lemon.

    So, the courts used the same test (Lemon) in Salazar and Duncan. The question is whether the Supreme Court will reject Lemon and the endorsement test completely…as they seem to want to do.

    Hope that helps!

  • Richard Wade

    It’s obvious how this will go down if it reaches SCOTUS, otherwise known as The Most Exclusive Branch of the Knights of Columbus. They’ll use Justice Antonin “Da Bishop” Scalia’s inane rationalization in Salazar (the Mojave cross case), that the cross is not specifically a symbol of Christianity, it’s a symbol of the dead.

    Ohhh, it’s only a symbol of the dead. So all those tall, fancy buildings with crosses at the top that I see around town are morgues, funeral homes and tombs?

  • Parse

    To quote what Brian Westley wrote (emphasis mine),

    From the decision:
    Before erecting any memorial, the UHPA obtained the consent of the fallen trooper’s family. None of these families have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, “[b]ecause [the UHPA] exist[s] to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family.”[2]

    2. Notwithstanding the UHPA’s position, the State Defendants, in oral argument before the district court and in their briefs and argument before us, asserted that they would not allow any change in the memorial, whether to accommodate other faiths or otherwise.

    The UHPA say yes, but that’s a private organization, not the state. State officials said they would not allow any changes. It looks like any changes would result in the state refusing such a proposed memorial to be used on state land.

    It’s that entry two that’s why I support the case. What Utah is saying is that you either have the choice of a huge, garish cross, or no memorial at all. So while technically it’s true that all of the families chose to have the memorials, a better question is how many would have preferred something else. You want something a little more tasteful? You want something to reflect your actual faith (or lack thereof)? Sorry, but Utah wouldn’t allow it.

    I’d prefer that Utah changes this so that you can use a roadside marker of your choosing; the proper response to bad speech is more speech, not banning it. But what’s probably going to happen is, as Richard wrote, Justice ‘Crosses-aren’t-Christian’ Scalia will not see a problem with it when it crosses his plate.

    As for the crosses themselves, their advocates claim they have a ‘secular purpose,’ to encourage safe driving (as a morbid reminder of what happens otherwise. The only time I’ve actually seen them have this effect is driving through the narrows on 22/322, heading up to State College in Pennsylvania. A cross by itself is a memorial for a person; a near carpeting of crosses says ‘Be careful or this could be you.’

  • Non-Litigious Atheist

    I’m glad to see that Emma understood my point perfectly! I’m not arguing points of legal scholarship, I’m arguing about pragmatic effects in the real world.

    My argument is not that creches and so on are not church-state violations. They are. My argument that is they are among the least important issues one might need to rectify, not to mention the least likely to be successful in rectifying. (Given what Richard Wade just said about what SCOTUS will do, why bother?) Combine those two things with the fact that being litigious bolsters the ostracization of atheists, and atheist organizations have good reason to commit their resources elsewhere.

    One thing is certain – these lawsuits aren’t going to go away any time soon. My points are going to fall on deaf ears, because I certainly can’t be the only one to have ever raised them before. The powers that be in atheist organizations don’t want to hear these points because lawsuits are often a huge chunk of their reason for existence. If all the church-state violations were removed overnight they’d have to pack up and close shop.

    That’s a shame IMO because there are so many other more important things they could be doing with their time, like making sure that Discovery Channel programming about the life of Jesus actually take historical Jesus studies into account, and make clear that scholars universally treat the star of Bethlehem and other stories as straight-out myths, instead of trying to uncover ‘the history’ of the star of Bethlehem, or Noah’s Ark, or whatever pseudohistory you are likely to find on the Discovery Channel or the History Channel because it happens to line up with discredited dogma.

    From my perspective the bottom line is this. Suing over trivial religious symbols on public grounds does much more harm than good to atheists. But I can’t change the status quo, so the best I can do is point this out to people, and if I’m lucky maybe someone who hears will actually listen. So the atheist organizations that sue can continue to sue – I can’t stop atheists from hurting their own interests any more than I can stop poor Southerners from voting Republican.

    But please, please, please! stop saying things like ‘the atheists have won the case.’ The litigious atheists have won, and they don’t represent me or other atheists. They might represent as many as 50% of atheists, or as little as 10% of atheists, but one thing’s for sure – they don’t represent all of us. So please do not dishonestly claim all atheists! Their actions should not reflect poorly on me and other atheists like me, because not all atheists are itching to sue people, and I doubt that even half of atheists are so litigious as to worry about this sort of trivial stuff. We have more important things to worry about and have no dog in this fight, so please do not claim us. Believe it or not, not everyone defines themselves by the number of lawsuits under their belt.

    BTW, it’s interesting that these things only seem to be initiated by atheist organizations these days. The way I see it, if you are an atheist, a cross is just another meaningless religious symbol, meaningful only to a religious person. If anyone should be offended by it, I would think it would be members of other religions (Jews, Hindus, Buddhists), not atheists, because religious symbols are important to them, so displays of different religious symbols could be seen as an affront. So I would think minority religious groups would be more offended – and yet you never seem to hear a peep about Buddhist lawsuits to remove creches or anything like that. I can’t say for sure, but maybe that’s because Buddhist temples actually have more important positive things to contribute to their communities. It would be nice if atheist groups would take their example, but it probably won’t happen in my lifetime :(


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