Atheists Win Roadside Memorial Case – American Atheists v. Duncan

One of the roadside memorials erected by the UHPA

By Marc J. Randazza

The Utah Highway Patrol Association (“UHPA”) put up twelve foot high crosses to honor fallen Utah Highway Patrol troopers. The crosses bore the Utah Highway Patrol (“UHP”) symbol and they were on public land. Funny enough, since Mormons don’t use the cross as a religious symbol, the UHPA actually seems to have had an innocent (if slightly ignorant) intent. They did not intend to send a religious message, but rather used the crucifix as what they thought was a “universal” symbol of a memorial to the fallen.

The American Atheists sued to block the displays as violations of the Establishment Clause. The district court found in the UHPA’s favor, but the 10th Circuit reversed yesterday – finding that while there was no intent to promote religion, the crosses still had that effect. (Opinion).

The 10th Circuit analyzed the case under Justice O’Connor’s “endorsement test.” Under that test, “[t]he purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).

The Purpose Prong

The 10th Circuit rejected the argument that any time the government uses a Latin cross, it is a per se establishment clause violation. (Example)

Here, we can discern a plausible secular purpose. Considering first the evidence of the UHPA’s motivation, that organization has, throughout the course of this project, consistently asserted that its intent in erecting these memorials is only secular: to honor fallen troopers and to promote safety on the State’s highways. The secular nature of the UHPA motive is bolstered by the fact that the memorials were designed by two individuals who are members of the Mormon faith, the Church of Jesus Christ of Latter Saints (“LDS Church”), a religion that does not use the cross as a religious symbol. These men explained that they were inspired to use the Latin cross for the fallen trooper memorials because of the presence of such crosses in military cemeteries, which honor fallen service members for their sacrifice, and roadside memorials found where traffic fatalities have occurred. Plaintiffs are unable to point to any evidence suggesting that the UHPA’s motive is other than secular. (Op. at 20-21)

The 10th also looked at the facts to make sure that the secular explanations were not a mere sham. (Op. at 22). They determined that the UHPA was sincere in its secular intent.

The Effect Prong

Despite the good intent, the 10th found (logically) that the effect of the crosses would be to communicate a message of governmental endorsement or approval of christianity. They looked at the display through the eyes of an objective observer, and determined that a reasonable objective observer would conclude that the crosses were an endorsement of religion. The crucifix is a christian symbol, and the addition of the UHP logo on the crosses capped the well.

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 record indicates that at least one, and perhaps several, of these memorials are located on private land near a state highway. That fact does not change our analysis, however, because those crosses, even though on private land, still bear the UHP insignia, which UHPA was authorized by UHP to use.

The connection between the UHP and Christianity is perhaps even more strongly conveyed by the two memorial crosses located immediately outside the UHP office. We are deeply concerned about the message these crosses would convey to a non-Christian walking by the UHP office or, even more troubling, to a non-Christian walking in against his will.

The fact that the cross includes biographical information about the fallen trooper does not diminish the governmental message endorsing Christianity. This is especially true because a motorist driving by one of the memorial crosses at 55-plus miles per hour may not notice, and certainly would not focus on, the
biographical information. The motorist, however, is bound to notice the preeminent symbol of Christianity and the UHP insignia, linking the State to that religious sign.

Moreover, 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. 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 reasonable observer’s fear of unequal treatment would likely be compounded by the fact that these memorials carry the same symbol that appears on UHP patrol vehicles. See Friedman v. Bd. of County Comm’rs of Bernalillo County, 781 F.2d 777, 778, 782 (10th Cir. 1985) (holding that a city’s seal “bearing, among other things, a latin cross and the Spanish motto, ‘CON ESTA VENCEMOS’ [‘With This We Conquer’],” violated the Establishment Clause in part because “[a] person approached by officers leaving a patrol car emblazoned with this seal could reasonably assume that the officers were Christian police. . . . A follower of any non-Christian religion might well question the officers’ ability to provide even-handed treatment. A citizen with no strong religious conviction might conclude that secular benefit could be obtained by becoming a Christian.”). And the significant size of the cross would only heighten this concern. (Op. at 26-28).

Interestingly enough, Justice Scalia, in Salazar v. Buono (a case concerning the constitutionality of a war memorial cross on federal land in the Mojave National Preserve) said that the cross is a universal symbol, not a Christian symbol. Naturally, Scalia is a liar, but it is nice to see the somewhat conservative 10th Circuit remain intellectually honest, even though they could have hung their hat on Nino’s bullshit.


As much as I agree with the reasoning in this case, and as much as I recognize that it is important to bring Establishment Clause cases, so that we can hold back the religious nut jobs from their attempts to turn the United States into a theocracy, I would have been uncomfortable bringing this case. The families of every fallen trooper approved of the memorials. The UHPA acknowledged that they would have raised a different memorial to any trooper at the request of their family.

I’m not saying that I don’t appreciate the case being out there, as this case will protect that wall of separation between church and state. I just think that I’d rather see my atheist brethren pick and choose their battles a little more tactfully.

20 Responses to Atheists Win Roadside Memorial Case – American Atheists v. Duncan

  1. Rogier says:

    I’ll put my atheist bona fides up against anyone’s.

    But this petty, provincial poppycock on the part of the plaintiff is both irrelevant and counterproductive. It makes all atheists seem like the thin-skinned, joyless gotcha-men and moralists that I thought we were supposed to be AGAINST.

    This is a Pyrrhic victory at best. I’ll refrain from doing a victory dance, as it would feel like I’m dancing on the graves of the fallen officers. A sad headshake over so much silly intolerance will have to do, along with a heartfelt R.I.P. and a thank you to the UHP men who laid down their lives.

  2. Rogier,

    I agree with you philosophically — as my commentary states. However, I will at least give the American Atheists this much credit – the case does establish some very nice principles that will be quite useful when the day comes that there is a case that actually matters.

    That said, yeah, it is sorta douchey.

  3. Bruce Williams says:

    Suppose the UHP had stated their reasons for using crosses (they did NOT use crucifixes, BTW) as other than symbolic – perhaps structural, cost-effectiveness, visibility, etc. Would that have made a difference?

    • Not in the outcome.

      The court found that the intent was pure of heart. The problem here was the effect.

      That said, I think that if anyone argued that they used crosses for “cost effectiveness” or “visibility” it would have been so clearly a crock of shit that the court would have found that it was a sham justification.

  4. Charles Platt says:

    No religious symbols of any kind for any purpose, on any publicly owned land, ever–would be my preference.

    What bothers me most in this case is the underlying assumption that the death of a Highway Patrol officer is somehow more important than the death of a “civilian” and thus merits a 12-foot eyesore. This stinks of privilege and entitlement. Also, the average highway patrol robot, spending his days giving out speeding tickets and hoping for DUIs and drug busts, is not my idea of a hero. He is more what I would term a social parasite.

    • Fair enough, and a valid position. I’m just sayin’ — there seem to be bigger fish to fry. I’m as atheist as they come, and I am as hostile to religion as anyone else (I’d support amending the constitution to ban the bullshit altogether). But, come on… a guy dies at work, and that job is at least ostensibly as a public servant, the least we can do is let the kid have a memorial that his family approves of.

      • Charles Platt says:

        “the least we can do is let the kid have a memorial that his family approves of.”

        Sure. On their own land, or a piece that they rent. Not on land belonging to all the people in that locality.

        • I know, I know… its not that I don’t agree. Its that I think that we’d have a lot easier time getting people to rally around our way of thinking if we remembered to be right and cool.

    • smurfy says:

      Charles, if you think the memorials stink of privilege and entitlement, you should see their pension plan.

  5. Agreed on all counts, Marco. Good law, but bad politics.

    The real action here is the 10th Circuit’s heavy reliance on the O’Connor endorsement test. The continued vitality of that test was somewhat murky after Salazar.

  6. ChadKnowslaw says:

    Holy Crap I never thought I would be lecturing atheist lawyers on separation issues!
    Listen to what you are saying — you think this case maybe shouldn’t have been brought because the defendants had good intent in their hearts??? In YOUR opinion! If you have to weigh the goodness or badness of the intent of the defendant you destroy the principal of separation, and judge some entanglement as OK because those were just darned nice people, but judge other entanglements as unworthy based on YOUR opinion of intent?
    NO NO NO — this decision is completely correct. I think every cross on public land should be the subject of a lawsuit.

    • Chad,

      Your position is worthy of respect — and certainly there is some advantage to having a clean philosophy like yours. It removes any question of what is allowed and what is not allowed. Much more efficient.

      But, what I am saying is exactly what you suggest. Had I been the one in charge, I would have told the plaintiffs to look for a better target. This one makes me uncomfortable. The decision is completely correct – – you are right. I am not arguing a legal principle here. I am talking about what I would have done.

  7. ChadKnowslaw says:

    Memorials belong in cemeteries. A 12 foot giant cross does not belong on the grounds of public offices. Would your opinion be different if someone wanted to erect a giant cross on the courthouse lawn if it was to honor the county recorder who was shot in her office by a rampaging maniac? She died in office, in the line of duty — but putting up a giant cross on the courthouse lawn, or any other public space, is an endorsement of religion and intimidation of non-christians. No, no no. A thousand times no. This case was worth fighting because of the crap it can (hopefully) prevent in the future.

  8. Sean F. says:

    Marc, you should convert to Apatheism. It’s so much lower stress than Atheism.

  9. Simon says:

    Agree 100% with the concept that religious symbols have no place in public life other than on a pointless edifice dedicated to that particular waste of time & effort, but I wonder if Charles would feel the same way concerning the Utah Highway Patrol Officers if his immediate family were under threat or he was involved in an emergency & they responded.
    A cross was not the best idea but the devil is always in the detail despite the best intentions of those concerned.

  10. chris says:

    I know I am coming late to this discussion, but I am in Australia so we are a bit behind . . .

    Every town (and I mean every town) in Australia has a memorial to soldiers who died during the world wars (and some for Vietnam). They are simple stone/marble columns, with some standard wording around the base (‘lest we forget’) and, in the smaller towns, the names of the residents who died.

    Nothing remotely religious about them. They are regarded as sacrosanct by pretty much everyone and form the centre of our annual Memorial Day equivalent ceremonies (Anzac Day down here).

    I guess my point is that both sides of the debate can be satisfied – have a memorial that has no religious connotations, links, relevance, allusions etc whatsoever. Its not like it hasnt been done before – your (USA) Vietnam memorial being a prime example. And, as that memorial shows, its not the religion that makes you remember.

    How someone can think a cross doesnt have a religious implication is a bit beyond me.

    • Chris, you’re missing a key point of understanding the religious right in America. EVERYTHING is about Jesus, and they will not relent until they turn this place into a theocracy.

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