A panel of the 10th Circuit U.S. Court of Appeals has ruled unconstitutional a Utah Highway Patrol Association program of placing roadside crosses on public land – with the approval of the state's Utah Highway Patrol (UHP) – to commemorate fallen troopers. Today's ruling overturns a trial court's 2007 decision featuring the disturbing argument that crosses have "evolved" into a secular symbol.
In the unanimous opinion written by Senior Judge David Abel, the court finds that while the UHPA and the State had a clearly secular purpose in erecting the crosses – "to honor fallen troopers and to promote safety on the State’s highways" – its effect is nonetheless to give the impression of state endorsement of the Christian faith. The decision takes head on the lower court's belief that the cross has somehow become a "secular" symbol.
See the extended entry for highlights from the ruling, including strong defenses of the cross as a Christian – not secular, or generic – symbol.
A panel of the 10th Circuit U.S. Court of Appeals has ruled unconstitutional a Utah Highway Patrol Association program of placing roadside crosses on public land – with the approval of the state's Utah Highway Patrol (UHP) – to commemorate fallen troopers. Today's ruling overturns a trial court's 2007 decision featuring the disturbing argument that crosses have "evolved" into a secular symbol.
In the unanimous opinion (pdf) written by Senior Judge David Abel, the court finds that while the UHPA and the State had a clearly secular purpose in erecting the crosses – "to honor fallen troopers and to promote safety on the State’s highways" – its effect is nonetheless to give the impression of state endorsement of the Christian faith. The decision takes head on the lower court's belief that the cross has somehow become a "secular" symbol. (my emphasis)
Here, 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, and they do so standing alone (as opposed to it being part of some sort of display involving other symbols). That cross conspicuously bears the imprimatur of a state entity, the UHP, and is found primarily on public land.
The reasonable observer driving by, the opinion continues, "is bound to notice the reeminent symbol of Christianity and the UHP insignia, linking the State to that religious sign."
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.
On whether the cross is merely a symbol of death (emphasis in the original):
We agree that a reasonable observer would recognize these memorial crosses as symbols of death. However, we do not agree that this nullifies their religious sectarian content because a memorial cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian. The parties agree that a cross was traditionally a Christian symbol of death and, despite Defendants’ assertions to the contrary, there is no evidence in the record that the cross has been universally embraced as a marker for the burial sites of non-Christians or as a memorial for a non-Christian’s death.
On whether crosses being a common roadside symbol of death lessens the religious impact:
Defendants provided a statement from a representative of the Montana American Legion White Cross Highway Fatality Marker Program in support of their claim that roadside crosses are common, recognizable symbols of highway fatalities. The cross memorials at issue here are ten times as large as those crosses, which are only between twelve and sixteen inches in height. The massive size of the crosses displayed on Utah’s rights-of-way and public property unmistakably conveys a message of endorsement, proselytization, and aggrandizement of religion that is far different from the more humble spirit of small roadside crosses.
Amplifying that point in a footnote:
Amplifying that point in a footnote:
In fact, the massive size of these displays is such a deviation from the normal memorials of death seen on the sides of roads that they may convey to the reasonable observer a Christian religious symbol. Defendants assert the crosses must be as large as they are so motorists passing by at 55-plus miles per hour can see them. But the size far exceeds the size necessary to be seen from the highway. And, not all of the memorials are located near a highway. For example, several are located near a UHP office. The size of those crosses is particularly troubling.
