Judges rule against Utah highway crosses for fallen troopers

DENVER — The white, roadside crosses that currently memorialize the deaths of 14 Utah Highway Patrol troopers are unconstitutional, government endorsements of religion on public lands, the 10th Circuit Court of Appeals ruled Wednesday.

"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," the court wrote in siding with the Texas-based American Atheists, Inc.

In 2005, the atheist group sued the Utah Highway Patrol and the Utah Highway Patrol Association, a private entity aimed at supporting troopers and their families, to get the crosses taken off state lands.

On Wednesday, 10th Circuit judges David M. Ebel, Harris L. Hartz and Deanell Reece Tacha ruled the white crosses violate the Establishment Clause of the Constitution.

"The cross is such a poignant religious symbol that calling it a memorial and putting the troopers' names on it doesn't change the significant poignant nature of the cross," said Brian Barnard, an attorney for American Atheists. "And when you put it on government property, it becomes government endorsement."

Utah Attorney General Mark Shurtleff, however, told the Deseret News he "couldn't disagree more."

"It is the judicial responsibility to interpret, but I'm just glad it's not the final say," he said.

Particularly in the western United States, Shurtleff said, there is a long, secular history of roadside crosses, or descansos, being used to memorialize the dead.

"People know when they see a white cross on the side of the road, they know somebody died there," he said. "The poor atheist who sees that knows it. He's not forced to think about Christ or Christianity or to change his religion."

Barnard said his clients were not "anti-Highway-Patrol" but rather are concerned about the mixing of church and state.

"Our underlying position is that these Highway Patrol troopers should be honored," Barnard said. "The memorials, however, should be such that they don't emphasize religion and they don't emphasize one religion to the exclusion of others."

Luke Goodrich, an attorney for the Becket Fund for Religious Liberty, filed a friend of the court brief in the case on behalf of Colorado, Kansas, New Mexico and Oklahoma. Since the crosses were chosen by the private Utah Highway Patrol Association, Goodrich said, the court's decision could negatively impact memorial cross programs in states outside Utah, and even the right to private, religious speech.

"If I want to hold up a sign on the lawn of the U.S. Capitol, could people mistake me for government speech?" Goodrich asked.