Utah Files Petitions to U.S. Supreme Court in Roadside Crosses Case

20 April 2011 – Washington, D.C.

The Alliance Defense Fund (ADF) has filed a petition for a writ of certiorari to the United States Supreme Court in the case now titled Utah Highway Patrol Association v. American Atheists et al. This Establishment Clause case defends the presence of roadside crosses along Utah highways memorializing fallen State Troopers against a challenge by American Atheists and others. ADF will represent the Utah Highway Patrol, while former Texas Solicitor General R. (Ted) Edward Cruz of Morgan Lewis & Bockius LLP will represent the Utah Attorney General’s office. The Family Research Council (FRC) has announced that it is coordinating nationwide support for Utah in the case. Salt Lake City attorney Brian Barnard, who represents American Atheists, believes there is no reason for the Supreme Court to hear the appeal and predicts it will not.*

Summary judgment in favor of the original defendants in the case (originally titled American Atheists v. Davenport and appealed as American Atheists et al. v. Duncan et al.) was granted by the U.S. District Court for the District of Utah. This judgment was reversed in an 18 August 2010 ruling of a 10th Circuit Court of Appeals panel. Re-hearing en banc was denied in December 2010. According to the 10th Circuit, the “factors that Defendants point to as secularizing the memorials do not sufficiently diminish the crosses’s message of government’s endorsement of Christianity that would be conveyed to a reasonable observer. Therefore, the memorials violate the Establishment Clause.”

In response, Ken Klukowski, Director of the FRC Center for Religious Liberty, asserts that “Utah correctly argues that roadside crosses commemorating police officers are not an endorsement of religion. … The Establishment Clause does not forbid government actions that appear to be a religious endorsement. Instead, the Establishment Clause forbids government from coercing citizens to support religion. If there is no coercion, there is no constitutional violation.”

The petition filed by attorney Cruz seeks to resolve the issue of the appropriate legal test for the display of religious imagery, asking 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.*

FRC President Tony Perkins summarized concerns about the outcome of the appeal: “As a veteran of the Marine Corps, I am profoundly disappointed that a federal appeals court would issue a decision that if upheld would require the U.S. government to uproot every headstone in Arlington National Cemetery bearing a cross. This decision must be reversed.”

*(See Deseret News report.)

27 April 2011.  Supreme Court should overturn ruling on highway cross memorials. (Deseret News editorial)