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Crosses on public land: Did Supreme Court leave legal issue in 'shambles'?

The Supreme Court agrees not to take a case on whether memorial crosses on public land in Utah violate the First Amendment. But one justice says the court has left the topic in legal limbo.

By Staff writer / October 31, 2011


The US Supreme Court on Monday rejected a request to take up two cases examining whether officials in Utah violated the separation of church and state when they authorized the placement of 13 white crosses on public roadsides and other property as memorials to fallen state troopers.

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The court's rejection of the case leaves in place a circuit court ruling that would require the removal or dismantling of the crosses.

The cases raised an issue that has sharply divided the high court in recent years: When does the display of a religious symbol on public land violate the First Amendment’s ban on government establishment of religion.

Utah officials had urged the justices to use the case to identify a new legal framework to decide disputes involving displays on public property featuring crosses, the Ten Commandments, holiday crèches, menorahs, and signs with religious or quasi-religious messages.

Apparently, the only justice willing to take up that project was Clarence Thomas, who issued a 19-page dissent to the high court’s refusal to hear the Utah cross cases.

“Today, the court rejects an opportunity to provide clarity to an establishment clause jurisprudence in shambles,” Justice Thomas wrote.

He said the Supreme Court’s approach to such cases “has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”

In the Utah cases, each cross was erected close to the place where a trooper was killed. The 12-foot-tall cross memorial includes the name, rank, and badge number of the deceased officer, the year the trooper died, and the highway patrol’s official logo. The memorials also include a plaque with a photo and biographical text.

Officials said the memorial crosses were intended to communicate a combined message of “death, honor, remembrance, gratitude, sacrifice, and safety.”

The crosses were donated by the Utah Highway Patrol Association, a private organization. No state funding was used to design or erect the memorials, and state officials expressed no position on which symbol should be used for the memorials.

In each case, a cross had been selected by the fallen trooper’s family as an appropriate symbol for that trooper’s memorial.

A Texas-based group, American Atheists, filed suit challenging the placement of the crosses on public land. The group said the crosses demonstrated a state preference for the Christian religion and amounted to an official endorsement of Christianity.

State officials and the Utah Highway Patrol Association defended the use of the cross for the memorials, saying the cross is a recognized symbol of death, not an endorsement of a particular faith.

A federal judge agreed and dismissed the suit. The Denver-based 10th US Circuit Court of Appeals reversed.

“We conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of Christianity,” wrote Senior Circuit Judge David Ebel for the unanimous three-judge panel.


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