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.