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.

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.

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.

“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,” Judge Ebel said. “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 judge added: “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.”

In urging the high court to review the 10th Circuit’s decision, lawyers for Utah said the appeals court applied the wrong legal test to determine the constitutionality of the roadside crosses. Supreme Court precedent requires lower courts to consider how the display would be viewed by a “reasonable observer.”

“Contrary to [the US Supreme Court’s] reasonable observer, the Tenth Circuit’s observer is biased, selectively ignorant, and manifestly hostile to religious imagery,” wrote R. Ted Cruz in a brief on behalf of Utah public officials.

Mr. Cruz suggested the time had arrived for the Supreme Court to jettison the so-called endorsement test conceived by former Justice Sandra Day O’Connor. Under the endorsement test, judges examine whether a “reasonable observer” would conclude that the state was endorsing religion.

Instead, Cruz said, the court should rely on a coercion test as suggested by Justice Anthony Kennedy. The basic principle is that government may not coerce anyone to support or participate in religion but government may not also give a direct benefit to religion. The coercion test would be more permissive of religious symbols on public property.

It appears a majority of justices are not prepared to take that step.

In a decision handed down in April 2010, Justice Kennedy expressed his view of a less restrictive endorsement test.

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Kennedy wrote in a plurality decision involving a memorial cross on federal land in the Mojave Desert.

He added: “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”

“The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society,” Kennedy said. “Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.”

Lawyers for American Atheists disagreed with this approach. “A reasonable observer viewing the Utah memorial crosses would see a Latin cross – an obvious and widely recognized symbol of Christianity – with the conspicuous UHP "beehive" logo, but no context or history that conveys anything but a message of government endorsement of the Christian religion,” said Brian Barnard of the Utah Civil Rights & Liberties Foundation in his brief urging the high court not to take up the case.

“Far from conveying a predominantly secular message the principal message that the crosses convey is that the State memorializes fallen UHP troopers with a Christian symbol.”

The cases were Davenport v. American Atheists (10-1297) and Utah Highway Patrol Association v. American Atheists (10-1276).