10th Circuit denies petition to re-hear UHP cross case

DENVER — The 10th Circuit Court of Appeals has denied a request to have an entire panel of judges to re-hear whether the 14 large, white crosses that currently commemorate fallen Utah Highway Patrol troopers are unconstitutional. 

A three-judge panel ruled in August that the 12-foot crosses — which bear the UHP insignia — are unconstitutional, government endorsements of religion on public lands. The decision favored the Texas-based group American Atheists, Inc. who sued the Utah Highway Patrol and Utah Highway Patrol Association in 2005 in an effort to get the crosses removed from state lands.

The Utah Highway Patrol and Utah Highway Patrol Association then asked for a re-hearing on the issue in front of the entire panel of active judges on the 10th Circuit — a total of 10, plus one senior judge. On Monday, that request was denied. 

Four judges, though, issued two dissenting opinions explaining why they would have re-heard the case, including their belief that the August decision presumed that a religious symbol on public land is inherently unconstitutional, "which has no basis in our precedent and is unwarranted."

They also argued that a "reasonable observer" would see the cross as a memorial before it would see it as a religious symbol.  

Attorneys for the UHP have consistently stated that they use the cross not as a religious symbol, but to "convey the message of death, honor, sacrifice and safety."

Brian Barnard, who represents the American Atheists, said that there is no question that the troopers should be remembered, but that there needs to be a different symbol.

"These Highway Patrol Troopers should be honored," he said. "They gave the ultimate sacrifice. They can be and should be memorialized in such a way that does not emphasize religion and does not emphasize one religion to the exclusion of others."

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