August 18th, 2010
05:22 PM ET
10 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. Sam

    As long as they offer the families of the dead an option (cross, buddha, crescent moon, plain, etc) I don't see an issue. If they use a cross regardless of the troopers' religious affiliation, I do see a problem.

    August 18, 2010 06:31 pm at 6:31 pm |
  2. DIANA

    Though the crosses are a religious symbol, they also symbolize something a death occurred there.

    I have no objection to crosses on the road but if they want to make everyone happy, why not something more neutral?

    August 18, 2010 06:34 pm at 6:34 pm |
  3. Bob in PA

    If they are not erected by the state then the state has nothing to do with them. I guess the next stretch of the imagination will say that all the crosses or religious symbols at Arlington National Cemetary are actually endorsements by the state and need to be removed.

    To the Judges of the 10th Circuit I say politely: "Up your nose with a rubber hose!"

    August 18, 2010 06:37 pm at 6:37 pm |
  4. William Martin

    The grave markers at Arlington National cemetary bear the individual symbol of the religion of the person buried in each plot. Having a symbol of an idividuals religion on their grave marker or no symbol if that is their choice does not promote one religion over another. Most of them have crosses, not all of them.

    August 18, 2010 06:43 pm at 6:43 pm |
  5. Diego

    Fine....switch out the crosses for neutral monuments.

    The bottomline is that the officers should and must be memorialized for their sacrifices.

    August 18, 2010 06:44 pm at 6:44 pm |
  6. Johnny C (from Los Angeles)

    Beyond rediculous ... thankfully, the "Christ the Redeemer" statue is in Rio ... we would have to tear it down if it were in the United States.

    I know that these justices are trying to make it right for everyone ... sonmetimes it just cannot be done or should never be done.

    August 18, 2010 06:56 pm at 6:56 pm |
  7. Steve

    Would they erect a star for a fallen jewish officer? A crescent for a fallen muslim officer? I don't know understand what the problem is. its just a memory to the fallen officer's faith. That's what I would want.
    The reporter should have mentioned if any of the fallen officers were not christian. If that is the case they have the right to be upset.

    August 18, 2010 06:59 pm at 6:59 pm |
  8. Kevin Collins

    Well, if GOPers want to mix religion and the state, then churches can start paying state taxes.

    August 18, 2010 07:00 pm at 7:00 pm |
  9. Dean

    Tolerance and political correctness have ruined this county.

    August 18, 2010 07:02 pm at 7:02 pm |
  10. JHeron

    The cross is a symbol of a religion. And no USA, if it was the star of David or some symbol of Islam, it would have to go.
    I am not sure where Arlington Cemetery fits. I think it is a cemetery first and foremost. Worth looking into, but that does not negate the Judges proper decision.
    If you don't agree with it, then you do not understand the law or appreciate one of the core values America was built on...So Jes, perhaps you should be the one to go.
    The courts have to safeguard the integrity of the constitution. People may consider them out of touch, but they are there to protect the law from the whim of the people.

    August 18, 2010 07:11 pm at 7:11 pm |
  11. Keith in Austin

    Classic example of Liberal Activist Judges and political correctness beyond belief!

    Similarly, I trust that all the Women out there spewing their misguided liberal viewpoints re: support for the WTC Mosque, fully realize that it's IMAM wants compliance of Sharia Law within the US. To all you Feminists, that means Women are viewed as second-class citizens! How's that political correctness grab ya?

    Wake up and smell the coffee ladies!

    August 18, 2010 07:13 pm at 7:13 pm |
  12. Sally

    Wait until Sister Sarah weighs in on this.

    August 18, 2010 07:14 pm at 7:14 pm |
  13. Grote

    Don't see the problem with this. So long the troopers life/beliefs are represented if they are of other religons and their family don't object.

    August 18, 2010 07:19 pm at 7:19 pm |
  14. Midwest

    – A year or two from now –
    The "politically correct" courts will demand

    Repainting/removing the red and white crosses from all the US military Med Evac vehicles/choopers/equipment

    Pulling up all the crosses at Arlington and all other military cemetaries

    August 18, 2010 07:20 pm at 7:20 pm |
  15. MikeH

    The cross symbolizes a violent religion that has slaughtered millions.

    Do what has been suggested by 'Oregon Calling', put up a heart, or do what they do in California, dedicate a stretch if highway as a memorial and erect a sign with the name of the fallen officer being memorialized.

    August 18, 2010 07:20 pm at 7:20 pm |
  16. ciny cummings

    It was decided by 3 republican judgesbut will be twisted into the liberals fault by the uninformed

    August 18, 2010 07:24 pm at 7:24 pm |
  17. emma

    There is the possibility of using other symbols to honor them. Maybe candles, solar lights, stars, or something else.

    August 18, 2010 07:27 pm at 7:27 pm |
  18. Marihnat

    These are not put up by the government but a private group. They have their right to put it up. People pass by crosses at churches, jewish symbols, muslim symbols every day. How does that create a hardship to these people. They can be seen from the roadways. Do not the courts have better things to do with their time. Maybe these justices should be doing immigration hearings to get all the illegals out of our country faster.

    August 18, 2010 07:28 pm at 7:28 pm |
  19. Dare2Dream

    Come on people. Why can't we learn from our past. The USA was founded on freedom of religion, all religions! If we allow State sponsored promotion of a particular religion, we not living like our forefathers had envisioned. As soon as the courts start allowing this state sponsored religion, the sooner we will become a religious state. Then we will be no better then Iran, just a different religion. Our forefathers dreamed of a country where citizens could live and choose how they worshiped. They fled England to get away from religious tyranny. Now it seems like the Conservative Movement would like us to return to the 1700's. Lets institute the witch trials and the crusades again while we are at it.

    August 18, 2010 07:31 pm at 7:31 pm |
  20. jim

    Judges making law from the bench instead of interpretating the laws as written .

    August 18, 2010 07:47 pm at 7:47 pm |
  21. Toughlove

    So when the liberal religion shoves homosexuality and violence down our tv throats, we're told to avert our eyes in our own homes...but a cross is too intrusive on the side of a highway??? Maybe the cross really is too big.

    August 18, 2010 07:48 pm at 7:48 pm |
  22. galileo

    I am against organized religion. It divides and causes ignorance. Yet this is absurd to push it to this degree. I am for public displays such as this. They serve a greater good. This is as bad a decision as supporting the religious idiots that were picketing the soldiers funeral. When do those of us in the middle of the road get supported by the constitution.

    August 18, 2010 08:17 pm at 8:17 pm |
  23. Enough

    How ridiculous, can't they waste their time and our money on something a little more important? A cross is a memorial symbol, not always religious...........since I am NOT religious and I don't really care if they put up crosses. Get over it, and we are supposed to let Muslims build a mosque near ground zero..............Enough, America first

    August 18, 2010 08:22 pm at 8:22 pm |
  24. Steve in North Carolina

    Good God (or can I even say that anymore). This county is becoming rediculous. People are screaming about freedom of religion in the case of the proposed mosque next to ground zero, but against anything Christian. How about the Greek Orthodox Church that was actually destroyed by one of the twin towers during 9/11. The government is stalling them in their efforts to rebuild, but defending the mosque proposal. How does that make sense?

    August 18, 2010 08:23 pm at 8:23 pm |
  25. Cindy

    Crosses are used all the time... just not 12' tall ones. Can you imagine if everyone started putting up 12' tall crosses, or Star of Davids, or Amida Buddha statues along the highways everywhere?

    August 18, 2010 08:31 pm at 8:31 pm |
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