August 18th, 2010
05:22 PM ET
4 years ago

Federal appeals court says highways crosses are unconstitutional

Washington (CNN) – Memorial crosses erected along Utah public roads to honor fallen state highway troopers have been found unconstitutional by a federal appeals court.

A three-judge panel of the 10th Circuit U.S. Court of Appeals ruled Wednesday that the 14 large crosses would be viewed by most passing motorists as "government's endorsement of Christianity."

"We hold that these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion," concluded the Denver, Colorado-based court. The state of Utah and a private trooper association have the option of appealing to the U.S. Supreme Court.


A Texas-based group, American Atheists, successfully sued five years ago to have the non-profit memorial project scrapped, and the crosses removed from public property.

At issue was whether the crosses violated the Establishment Clause of the Constitution, by having the government endorsing the Christian symbols, even if indirectly.

Although the suit went against the memorial project, the crosses were allowed to remain pending appeals in the case. They are still in place.

The Utah Highway Patrol Association in 1998 began erecting the monuments, which contain the fallen trooper's name, rank, and badge number. A picture of the officer and some biographical information is included on a separate plaque placed where the two bars of the cross meet. The state insignia is also included, which the judges in particular raised with constitutional concerns.

The service group said their main message was not religious in nature, but among other things, to serve as "a lasting reminder to UHPA members and Utah highway patrol troopers that a fellow trooper gave his life in service to this state" and to "encourage safe conduct on the highways."

While placed on public land and with the state's permission, the crosses themselves are privately owned and maintained. The state expressly noted it "neither approves or disapproves of the memorial marker."

In rejecting the crosses, the appeals court made several arguments, such as the large size and location of the crosses - on busy public highways where motorists cannot help but notice. Other similar memorial crosses have been erected on public land such as Arlington National Cemetery to honor fallen war dead. But the judges noted those markers are generally accessible or visible only to those who expressly choose to visit them, unlike roads where citizens cannot help but see them.

The Supreme Court has in recent years taken a case-by-case approach to Establishment Clause cases. The justices in 1947 said the government needed to be "neutral" but "not an adversary" toward religion. The court has upheld legislative chaplaincies, tax exemptions for churches, and the mention of "God" on U.S. currency and in oaths of office.

At the same time, government-sponsored school prayer is banned, and limits imposed on aid to parochial schools.

The court's record on religious displays on public land is more mixed, with "context" a key criteria. The justices last year decided on free-speech grounds a small religious group could not erect a granite monument in a Utah park next to an existing Ten Commandments display, which for the time being was allowed to stay.

And this past June, the conservative majority of the court concluded a cross designed as war memorial in lonely stretch of national parkland in the California desert did not violate the constitutional separation of church and state.

In 2005, a Ten Commandments monument on the Texas statehouse grounds was allowed to stand, since it was surrounded by historical markers. But the same day Ten Commandment parchments in two Kentucky county courthouses were ruled unconstitutional, with the high court majority calling them "a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document."

And some nativity scenes and menorahs placed in public parks during December have been allowed to stand, while some were ordered removed.

The 10th Circuit rejected arguments from the UHPA that many roads contain crosses or other religious symbols placed by private individuals honoring a dead relative killed in car accidents.

"The mere fact that the cross is a common symbol used in roadside memorials does not mean it is a secular symbol," said the panel. "The massive size of the crosses displayed on Utah's rights-of-way and public property unmistakably conveys a message of endorsement, proselytization, and aggrandizement of religion that is far different from the more humble spirit of small roadside crosses."

The judges also disregarded suggestions that since most of the deceased troopers were Mormon, where the Utah-based Church of Jesus Christ of Latter-Day Saints does not uses the cross as a religious symbol, the highway memorials were merely symbols of death and did not promote a a particular faith.

There was no immediate reaction to the opinion from American Atheists or the UHPA.

The case is American Atheists v. Duncan (08-4061).


Filed under: Religion • U.S. Court of Appeals
soundoff (63 Responses)
  1. Son of CSM.Wiggins

    Ok this is dumb as a democrat I understand everyones rights to worship or not but as Christian if you don't like the crosses don't look at them. Your eyes should ne focussed on the road anyway

    August 18, 2010 05:31 pm at 5:31 pm |
  2. JES

    Get a gri why do we continue to let minorities’contral the majortiy.

    If that's the case why do we still have crosses on all the graves in Arlington. I think that's on fedral land too.

    We have gone to far with all this crap.

    I think all the people that feel this way you have two choices go to H___ or get out of our Country including the Judge.

    August 18, 2010 05:33 pm at 5:33 pm |
  3. Marcus

    It's kinda complex, true.
    But to be honest, to use the size of said crosses as one of thereasons as to why they have to go is streching at best, silly at most.

    August 18, 2010 05:34 pm at 5:34 pm |
  4. Marcus

    USA – Did you read the story?
    Religiosity is a complex issue when it comes to separation of state and church, and they did not ruled that it is illegal/unconstitutional to put a cross (or any other religious symbol of any other religion) on public property like they did, HOW they chose to honor their did it seems to be the issue.

    August 18, 2010 05:39 pm at 5:39 pm |
  5. Sniffit

    Ask yourself: why was a religion-neutral plaque not sufficient?

    If you can't answer that question without getting upset at the idea that the memorial symbol should be religion neutral, you only prove even further that the judge was correct.

    August 18, 2010 05:42 pm at 5:42 pm |
  6. Hammerer

    Does this tell you anything?
    Where is obama now?

    August 18, 2010 05:43 pm at 5:43 pm |
  7. Oregon Calling

    Why not a symbol of a heart instead? Not promoting any religion just love.

    Peace :-)

    August 18, 2010 05:44 pm at 5:44 pm |
  8. Jack

    Courts are like politicians – so far out of touch with Americans and reality that they might as well be on Mars. And who is the idiot that filed the case in the first place? Obviously someone without anything else in their life...probably an ACLU lawyer. This is a waste of our tax dollars.

    August 18, 2010 05:44 pm at 5:44 pm |
  9. Simple Words

    Could there not be 'spiritually neutral' way to honor these police officers? We Americans are so easily distracted by silliness; it's no wonder we keep voting against our best interests.

    August 18, 2010 05:49 pm at 5:49 pm |
  10. LacrosseMom(the real one)

    PS.

    IT IS AMERICAN LAW that NO government can promote NOR establish a religion. Having the state of Utah (what irony!) install crosses for the fallen Law Enforcement officers IS promoting a SPECIFIC religious view.

    Get it?

    August 18, 2010 05:51 pm at 5:51 pm |
  11. Sniffit

    And since CNN failed to report just how big they are: 12 feet tall....

    ...with a state insignia on them.

    If you can't wrap your brain around the nexus created there, then, well, go back to listening to your Limbaugh bootlegs.

    August 18, 2010 05:53 pm at 5:53 pm |
  12. Claudia, Houston, Tx

    If these troopers are buried on the side of the road then move them where most people are buried.

    August 18, 2010 05:55 pm at 5:55 pm |
  13. Robin in Tampa, FL

    Personally I have no problems with crosses, stars, and crescents memorializing people who have died along the highway, it certainly makes me a more cautious driver. However, the atheists have a point that these religious symbols are on publicly owned land. The only way around this is to have government sell the small plot of land so people can privately setup their memorials along the highway.

    August 18, 2010 05:55 pm at 5:55 pm |
  14. Naqib

    Why not put the symbol that the family wants? If they are going to do it out of respect for tha officer... then the state isn't doing it.

    A cross, or a star, or a heart, whatever... end of problem.
    Why these issues have to cost tax payers serious bucks is beyond me.

    August 18, 2010 05:55 pm at 5:55 pm |
  15. realworld

    Son of CSM.Wiggins, by your logic we should go ahead and have bible classes in schools, as some groups want. If you don't like them, don't take them.

    August 18, 2010 05:56 pm at 5:56 pm |
  16. obama victim

    well...what a relief....we are all safe from those crosses...thank God....oooops

    August 18, 2010 05:58 pm at 5:58 pm |
  17. BradR

    I reject the argument that the National Cemetary is only viewable by those who choose to view them. They are on the news all the time. And if your loved one is in the military and chooses to be buried there, you will see them all over the place.

    Courts are out of control !

    August 18, 2010 06:00 pm at 6:00 pm |
  18. gt

    drip...drip... drip... just another in a long line of how low this country is heading ... drip ...drip... drip...

    August 18, 2010 06:02 pm at 6:02 pm |
  19. Derrick

    Not surprised by these insane federal courts! I'm sick of these unelected, appointed for life jacks making all the decisions. If they could actually make decisions based on law and not their personal preferences or whim of the day, this set-up might have worked. But these idiots do whatever they want regardless of what the people want with no accountability. Term limits for all!

    August 18, 2010 06:04 pm at 6:04 pm |
  20. DJ in TX

    Unfotunate decision, but if the story has all the facts, it probably was the right decision. I understand that the state is not "intentionally" trying to push Christianity, but allowing the group to put crosses (in particular the size) does give the appearance of promoting a religion.

    I'm a Christian and I like, no love the cross:-). But my religion is mine. If this was private property, then I'd have a real problem, but it is public property, therefor making it subject to the separation rule.

    Very unfortunate as the group is just trying to honor these fallen troopers.

    August 18, 2010 06:08 pm at 6:08 pm |
  21. James

    These kinds of memorials should be arranged and placed by family members and mourners. I am not a religious person, but I don't see any problem with memorials that contain religious symbols, so long as they are not government issued. Religion is important to some people, and I won't begrudge their expression of that fact. We are not exercising tolerance as a society, nor are we embracing diversity, by suppressing the varied expressions of faith.

    August 18, 2010 06:11 pm at 6:11 pm |
  22. frag

    Have you ever noticed that just before every election the American public gets involved in discussions over issues that, irregardless of how they are decided, will eventually have absolutely no effect on their lives.....flag burning and the like. Gee, I wonder if someone is trying to distract your attention from a problem for which they have no solution. Sucker.

    August 18, 2010 06:15 pm at 6:15 pm |
  23. Jacq

    Most of the problem of the world are cause by the religious right

    August 18, 2010 06:17 pm at 6:17 pm |
  24. Gregg2

    """ IN GOD WE TRUST """ You see it every time you pay for something.. Our money our own printed money. Our country was founded on the principles of god. Christian belief in god has always been a part of this country from it's inception and even before it's creation.

    Yet here we are imploding what this country's principles were founded on. I hope and pray every day that people can gather the wisdom they need to change this behavior.. To change this direction we are going. If we do not change we will suffer for it.. We will loose everything we have...

    Our grandfathers conquered the great depression and fought in world war 2 by the grace of GOD.. We enjoy the life we have today for what they did with the help of prayer and GOD.

    How we have changed.. How many people feel embarassed, awkward, scared, just for saying "I pray every day for God's guidance and wisdom to help me through times good and bad". How many people would get made fun of for saying that?? If there is such a STRONG REACTION to something as simple as this, do you not think there are higher power's involved????

    August 18, 2010 06:23 pm at 6:23 pm |
  25. Jake

    How about the huge menorahs that have been lit in front of the White House? Those are impossible to miss, hence an unconstitutional infringement on the rights of passersby.

    August 18, 2010 06:24 pm at 6:24 pm |
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