August 18th, 2010
05:22 PM ET
12 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. Jon from Madison

    So Muslims can build a mosque and worship where ever they choose, as protected by the constitution, but Christians can not honor a fallen trooper in public. I can't believe my wonderful country has turned its backs on those who serve it.

    August 18, 2010 08:40 pm at 8:40 pm |
  2. Hendrik

    Even this is politicized as a left and right issue. Give me a break.

    I do find it interesting that those who don't get their way in court cases blame activist judges blah blah blah but when they get the decision they want they fully agree with the court. I guess it is a matter of perspective.

    I do understand the position of the court but find it extremely stupid.

    August 18, 2010 08:41 pm at 8:41 pm |
  3. George of the jungle

    Where is the orange man or ol Mitt why aren't they making a stink about this. Gosh doesn't have anything to do with the president so why waste time and energy acting outraged. USA you are a bigot .Who mentioned Muslims anyway. All you wingnuts have Islamaphobia. Seperation of church and stae ever heard of it. Some of us don't want to see any religious crap out side of a church. If it is ok for one it is ok for all.

    August 18, 2010 08:45 pm at 8:45 pm |
  4. DOG1

    The crosses are symbols of the religion of that particular trooper. If that person was a Muslim or a Jew I assume the markers would represent their religion. So what's the problem? As addressed above these judges need to get exposed to reality!

    August 18, 2010 09:33 pm at 9:33 pm |
  5. Denny

    It's a tradition in this country to honor our dead with crosses. It's a tradition to erect manger scenes and sing caroles at Christmas time. A tradition to dress as ghosts and goblins at Halloween, etc. If a few people don't like it they can look away or go live somewhere else. Traditions bind people together on sad or joyous occasions. It is so tiring, so discouraging to know a certain few people will try to ruin the ties that bind. The irony is that they are free to make their own traditions but they are not satisfied with that.

    August 18, 2010 09:35 pm at 9:35 pm |
  6. Ancient Texan

    Another legislating judge that believes the 8% of the nation (athiest) should be able to control and irritate the other 92%. Crosses have been used as grave markers for hundreds of years. How, exactly, has this been a problem for a non-believer?

    August 18, 2010 09:50 pm at 9:50 pm |
  7. T'SAH from Virginia

    Here in this state people always place crosses or flowers at a place where a family member has been killed in a accident. Lately, however, I have seen 'official' signs placed there that states "Drive Safely – In memory of ...." I've seen more than one on the road and they are cemented down.

    So, it may be the way this state wants to rid the roadways with crosses and/or flowers by putting up neutral signs warning of safety and at the same time, memorializing someone who got killed at that site. I really think that would work.

    August 18, 2010 10:03 pm at 10:03 pm |
  8. Bl Crews

    This country is at a crossroads, what the hell happened to us.. There is no such thing as separation of church and state. Please find it for me.. The gov said that it could not create a single religion for citizens to follow, that’s it. You can interpret that anyway you want, but there is no paragraph anywhere that mentions separation of church and state.
    We are coming apart at the seams just the way every communist country did at the beginning. Make the people depended on Government, make the people happy by taking from those who earn and last destroying religion.

    August 18, 2010 10:06 pm at 10:06 pm |
  9. Dennis

    Are all the grave markers in National Cemetaries going to have to be changed now too?

    August 18, 2010 10:15 pm at 10:15 pm |
  10. Seraphim0

    "USA" get a grip and grow up. Additionally, muslims forbid depictions of Mohammed. 'Muslim in chief'... come up with that your clever self?

    On topic, as an Aetheist, I find this ridiculous that someone would even bring this to court. I don't believe in the Christian God or any 'God,' for that matter, but this is hardly an issue that offends me when I see roadside vigils or memorials. This is just a group of Aetheists feeling entitled and sue-happy and giving the rest of us a bad name.

    August 18, 2010 10:28 pm at 10:28 pm |
  11. Noah

    I live in New Mexico which,as you would be correct in surmising, has a large mostly Catholic Hispanic population.

    As you drive along almost any road in this state you will see a great many crosses of various sizes and elaboratness erected by people in memoriam to family members or friends who died in a car crash.

    I'm an Orthodox Jew, so do I find these religious symbols offensive? Absolutely not! They were not erected to promote an ideology. Rather, they were erected by caring hands to honor their dead.

    Let's get a grip, people, and stop the knee jerk reactions and responses. .

    August 18, 2010 10:29 pm at 10:29 pm |
  12. jules sand-perkins

    Crosses are best seen in churches.

    August 19, 2010 05:13 am at 5:13 am |
  13. Danny

    Since the supposed "Seperation of Church and State" has been used as an argument against such things, the US is in the process of falling apart. This is a non-argument in regards to the ghost of "seperation of church and state" it is being interrupted wrongly being implemented wrongly! This country WAS founded on Judeo/Christian principals, and there's no such thing!

    August 19, 2010 08:37 am at 8:37 am |
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