Attorneys argue Utah Highway Patrol cross case

Attorneys for the state and the Utah Highway Patrol Association got a little help from the 1960s medical drama "Ben Casey" to illustrate that the symbol of the cross has been used as a non-religious symbol.

In the opening sequence of the black-and-white TV series, a hand draws five symbols on a chalk board representing male, female, birth, a cross for death and the symbol for infinity.

A video clip of that opening sequence was shown on Tuesday to U.S. District Judge David Sam to show how the symbol of the cross can mean more than just Christianity.

It is the latest episode in the suit filed by the group American Atheists Inc. against the state and the Utah Highway Patrol Association over 13, 12-foot-tall crosses erected across the state along highways to honor UHP troopers who fell in the line of duty. The group claims the use of the cross on government property violates the Establishment Clause of the First Amendment that prohibits the state's endorsement of one religious belief over another.

During a summary judgement hearing Tuesday, Assistant Utah Attorney General Thomas Roberts said a cross does not always have to symbolize Christianity, but it can also represent "death and remembrance."

Roberts argued that telephone poles and road markers also can form the shape of a cross, but they are permitted on government property.

American Atheists attorney Brian Barnard argued that any "reasonable observer" knows that the Roman cross is the "preeminent symbol of Christianity." He pointed to circuit and U.S. Supreme Court decisions that ruled crosses on government property were an endorsement of a religious belief.

If all crosses should be banned from government property, Sam questioned, how about the 125 cemeteries maintained by the U.S. government that have grave makers with crosses for fallen soldiers?

Barnard countered that one would expect religious symbols used in cemeteries, and that other symbols, including the Star of David, are used for fallen Jewish soldiers.

Sam said he wondered if a fallen UHP trooper were Jewish, if his family could request a special UHP monument.

UHP Association attorney Byron Babione said no one ever has asked the association to erect a Star of David memorial, but added they and the state would allow another religious symbol to be used.

Barnard immediately pointed out that, in saying that, the association acknowledged that the cross was a religious symbol and not a secular one.

After hearing arguments, Sam struck down one of the three claims made by American Atheists, finding that the government is not "entangled" with a religious issue, because the UHP Association is not considered a religious organization.

However, Sam said he needed more time to consider two other legal issues and planned to release a written opinion at a later date.

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E-mail: gfattah@desnews.com