U.S. Supreme Court declines to hear Utah highway crosses case

Published: Monday, Oct. 31 2011 5:42 p.m. MDT

While a Utah State Flag blowing in the wind UHP troopers lift a memorial cross into place near the Utah Highway Patrol building in Murray for fallen Trooper Joseph S. "Joey" Brumett who was killed in 1992.

Stuart Johnson, Deseret News archives

SALT LAKE CITY — Clint Pierson remembers vividly the day his state trooper father died in the line of duty.

Lynn Pierson made a routine traffic stop on state Route 20 in Garfield County on Nov. 7, 1978. He did not know the car was stolen and the driver had just taken gas from a service station. As the Utah Highway Patrol trooper approached the car, the driver shot him in the chest with a .357-caliber handgun. Lynn Pierson was 29.

In June 2000, the Utah Highway Patrol Association erected a 12-foot high white cross at the intersection of state Route 20 and U.S. 89 to honor the fallen trooper.

"To me it says that he has not been forgotten, his sacrifice wasn't for nothing. He's still remembered. He's still part of what's going on," said Clint Pierson, a Garfield County sheriff's deputy.

"Now, somebody wants that taken away from us, wants him forgotten because they're offended by what we put up to memorialize him."

Large white crosses honoring fallen UHP troopers are no longer allowed on public land.

The U.S. Supreme Court on Monday declined to hear Utah's appeal of a lower court decision banning the roadside memorials. Utah Attorney General Mark Shurtleff and the Utah Highway Patrol Association had requested a discretionary review of a 10th Circuit Court of Appeals decision that held that crosses on state property violate the separation of church and state.

"It goes back to the 10th Circuit decision. They would have to be removed," said Shurtleff who described himself as "disappointed" at the decision.

Trooper Chad McWilliams, UHP association president, said his group will meet with relatives of the deceased troopers to determine their next move. But, he said, the crosses aren't going away. They will look for ways to move them to private property, though according to the appeals court ruling the UHP beehive logo would have to be removed because it belongs to a government agency.

"We're not going to let these guys dictate to us what we do," he said, adding the association, not the state, pays for and maintains the markers.

American Atheists Inc. sued the UHP and the UHP association in 2005, claiming that 14 large white crosses, all but four of which sit on state land, are an unconstitutional government endorsement of religion. A panel of three appeals courts judges reversed the federal court in Utah and ruled in favor of New Jersey-based American Atheists in August 2010, requiring the state to remove the crosses.

Utah obtained a reprieve while it appealed to the Supreme Court, arguing a split existed among lower courts on which legal test applies to the passive display of religious imagery.

Because the high court declined to consider the case, the appeals court ruling remains in effect.

Brian Barnard, the Salt Lake attorney for American Atheists, called it the correct decision. The special permission granted to put up the crosses and use of the UHP logo improperly gave the appearance that Utah was endorsing Christianity, he said.

"There is no question that the UHP troopers should be honored. They gave their lives in the line of duty and in service to Utah,"  Barnard said.

"However, troopers can be and should be honored with a symbol that is inclusive of all Utahns. A state approved memorial should represent those who are not religious as well as those who are."

McWilliams says the Supreme Court decision is a "slap in the face" for the families.

"It was like a death notification all over again. Some of them took it pretty rough. They were sad. They were disappointed," he said.

A third generation law officer, Pierson took the news personally. "I take it a little more to heart because I'm out there every day doing the same thing" as his father did.

The Supreme Court gave no reason for denying the state's petition. But Justice Clarence Thomas wrote a 19-page opinion on why the court should have granted the review. No other justices joined in his opinion. Only four votes from the nine justices are required to grant the review.

Past high court rulings on the issue have "confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess," he wrote.

Thomas suggested the case would have been a good vehicle for a major review and revision of Establishment Clause jurisprudence. "It is hard to imagine an area of the law more in need of clarity," he wrote. The court "should not now abdicate our responsibility to clean up our mess."

Shurtleff agrees.

"I'm upset at our Supreme Court for not taking the case," he said. "They clearly need to resolve a question that differs depending on where you live in the country."

The appeals court decision, he said, applies to the six states in the 10th circuit — Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah — making crosses illegal in those states, but permissible in every other state. 

But Barnard said the case is limited to Utah.

"There are no similar government approved displays or memorial programs for law enforcement officers in other states," he said. No other states allow similar large crosses with state emblems in front of the state offices."

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

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