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American Atheists oppose U.S. Supreme Court review of Utah highway crosses case

Published: Tuesday, July 26 2011 12:08 p.m. MDT

SALT LAKE CITY — American Atheists Inc., has asked the U.S. Supreme Court to deny Utah's request to decide whether fallen state troopers may be honored with roadside crosses on public land.

The group's attorney, Brian M. Barnard, said there's no reason for the nation's highest court to hear the case because the 10th Circuit Court of Appeals has already ruled the crosses violate the doctrine of separation of church and state. That court also declined to reconsider the decision in December 2010 and this past April.

"My clients believe the deceased troopers should be honored for their sacrifice," he said.  "They should be and can be honored with appropriate memorials that do not emphasize religion and do not promote one faith to the exclusion of all other religions."

Utah Attorney General Mark Shurtleff and the Utah Highway Patrol Association this spring asked the Supreme Court to review the case, arguing a three-way split exists between circuit courts on which legal test applies to the passive display of religious imagery.

The state asked the high court to set aside the "endorsement test" in favor of the "coercion test," arguing passive memorials don't coerce anyone to do anything. Utah also argues that no court has held the memorial crosses unconstitutional or that they establish a religion.

Barnard contends in his 68-page brief that the issue has not come up before.

"Indeed, we are aware of no other federal appellate rulings even addressing whether roadside cross displays like the ones here violate the Establishment Clause, much less holding that such displays are constitutional," he wrote.

American Atheists Inc. sued the Utah Highway Patrol and the Utah Highway Patrol Association in 2005, claiming that 14 large white crosses, all but three of which sit on state land, are an unconstitutional government endorsement of religion. A panel of three 10th Circuit Court of Appeals judges reversed the federal court in Utah and ruled in favor of New Jersey-based American Atheists last August, requiring the state to remove the crosses.

In January, the appeals court agreed to delay the removal order for 90 days, giving the state time to petition the U.S. Supreme Court.

Barnard said the high court usually only reviews cases where there are disagreements between federal courts of appeal.

"That is not the case here. No similar case has been decided differently," he said. "There are no similar memorial cross programs in other states. This decision is not going to have ramifications beyond Utah."

The state's petition notes the 10th Circuit decision could ban crosses on highways in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, while they would be permissible in every other state. Those six states reside in the 10th Circuit.

E-mail: romboy@desnews.com Twitter: dennisromboy

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