Salt Lake City, USA - Utah has asked the U.S. Supreme Court to decide whether fallen state troopers may be honored with roadside crosses placed on public land.
“With two simple lines, the highway crosses remind us of the ultimate sacrifice made by troopers while trying to protect us,” Utah Attorney General Mark Shurtleff said Wednesday in seeking the review. “Before now, no other court has ever held that memorial crosses establish a religion. The crosses only establish a trooper died in the line of duty.”
A three-way split currently exists between circuit courts on which legal test applies to the passive display of religious imagery.
American Atheists Inc. sued the Utah Highway Patrol and the Utah Highway Patrol Association in 2005, claiming the 14 large white crosses, most of which sit on state land, are an unconstitutional government endorsement of religion. A panel of three 10th Circuit Court of Appeals judges ruled in favor of Texas-based American Atheists last August and required the state to remove the crosses.
In January, the appeals court agreed to delay the removal order for 90 days, giving the state time to seek a U.S. Supreme Court review of that decision.
Former Texas solicitor general Ted Cruz has agreed to represent Utah in the case free of charge, the attorney general's office said. He is considered one of the nation’s foremost experts on religion establishment cases and has argued nine times before the U.S. Supreme Court.
A petition filed with the U.S. Supreme Court seeks to resolve the circuit court split over the appropriate legal test for the display of religious imagery. It asks the high court to set aside the "endorsement test" in favor of the "coercion test." It also asks the court to decide whether crosses placed on public land by a private organization, the UHPA in this case, is an endorsement of religion.
Cruz, in the petition, argues the crosses do not establish a religion because “the passive memorials coerce no one to do anything.”
Salt Lake attorney Brian Barnard, who represents American Atheists, said there's no reason for the Supreme Court to get involved in the case nor does he think it will.
"The decision by the 10th Circuit was well reasoned and supported by substantial legal authority," he said. "The 12 tall Latin crosses on government property are clearly the unconstitutional endorsement of religion by the state of Utah."
The petition notes the 10th Circuit decision could ban crosses on highways in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, while they would be permissible in every other state. Those six states reside in the 10th Circuit.
“Thus, a driver traveling an interstate through several circuits might observe roadside memorials containing crosses in one state, but a mile down the road, the very same memorials would be deemed unconstitutional.”