Appeals court stays order requiring Utah to remove roadside crosses

DENVER — The 10th Circuit Court of Appeals has agreed to stay an order that would have required Utah to remove 14 large roadside crosses that commemorate fallen Utah Highway Patrol troopers.

The stay, which is in effect for 90 days, is intended to allow attorneys for the UHP and the Utah Highway Patrol Association time to seek a U.S. Supreme Court review of a 10th Circuit Court ruling in a lawsuit filed by American Atheists Inc.

The Texas-based group sued the UHP and UHPA in 2005, claiming that the crosses, which stand on state land, are an unconstitutional government endorsement of religion. In August, a panel of three 10th Circuit judges ruled in favor of American Atheists.

The UHP and UHPA sought a rehearing on the issue in front of all 11 judges on the 10th Circuit Court. That request was denied on Dec. 20.

"The request for the stay was not unexpected," said Brian M. Barnard, attorney for American Atheists.

"That the state will seek such a review was also not unexpected," he said. "If the discretionary review is granted, the stay remains until the Supreme Court review is completed."

American Atheists did not oppose the stay and the state agreed not to erect any additional crosses while it is in effect, Barnard said.

Byron Babione, an attorney with the Alliance Defense Fund, which is representing the UHPA in the lawsuit, said the organization supported the request for a stay filed by the Utah Attorney General's Office.

"We are certainly appealing, especially since we got two strong dissents on the rehearing denial," Babione said. "The dissents may attract the Supreme Court to grant our appeal."

Four 10th Circuit judges wrote in two dissenting opinions that a rehearing was appropriate, citing their belief that the August decision presumed that a religious symbol on public land is patently unconstitutional, "which has no basis in our precedent and is unwarranted."

They also argued that a "reasonable observer" would see the crosses not as a religious icon but as a memorial.

In court papers, the attorney general's office has maintained that the cross is not used by the UHP as a religious symbol, but to "convey the message of death, honor, sacrifice and safety."

Barnard said his clients support the idea of honoring troopers for their sacrifices, but believe it should be done "with memorials that do not emphasize religion and do not emphasize one religion to the exclusion of all others."

"The state and the UHPA have made, and apparently will continue to make, the unusual argument that the Roman cross is no longer a poignant religious symbol, especially if just referred to as a memorial," Barnard said. "That is something that I do not believe the U.S. Supreme Court or most people will understand nor believe."

As for whether the nation's highest court will even agree to review the 10th Circuit Court's ruling, Barnard said, the odds are long.

"Such discretionary reviews by the U.S. Supreme Court are rare," he said. "Annually more than 10,000-plus are requested and perhaps 50 are granted."

e-mail: geoff@ubstandard.com

Twitter: GeoffLiesik