Ravell Call, Deseret News
Highway Patrol crosses in honor of Lt. Thomas S. Rettberg and Trooper George Dee Rees are seen along I-15 between the Farmington and Kaysville.

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.

In its opinion, the court said drivers traveling 55-plus mph would not be able to notice the biographical information about the fallen troopers, but would likely link the symbol of Christianity with the Utah Highway Patrol insignia.

"The fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity," the court wrote. "This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP — both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways."

The court also pointed to the "massive" size of the 12-foot crosses in determining there was indeed a difference between Utah's program and the smaller white crosses alongside Montana's highways.

"To me, that's giving very short shrift to a very valid factual argument," Shurtleff said.

The 10th Circuit did not send the case back to the trial court as it might in most reversals. Instead, the court ordered U.S. District Judge David Sam to enter an order in favor of American Atheists.

A spokesman for the Utah Highway Patrol Association deferred comments to Shurtleff, who said it would be up to the association to decide to appeal the ruling. But the attorney general said he would encourage the group to do so.

The state could ask for a re-hearing before the three-judge panel or before a panel of all the 10th Circuit Court's active judges. The case could also be appealed to the U.S. Supreme Court.

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