DENVER—A federal appeals court in Denver is weighing a lawsuit over Utah’s use of crosses for roadside memorials honoring fallen highway patrol troopers, with some judges questioning Utah’s declaration that the crosses are nonreligious, secular symbols of death.
A three-judge panel of the 10th U.S. Circuit Court of Appeals heard arguments Monday in the case involving what the group American Atheists called “heroic-size” 12-foot-high crosses placed along state highways. A federal judge in Utah ruled in 2007 that the crosses communicate a secular message about the deaths of the troopers and are not an illegal public endorsement of religion. U.S. District Judge David Sam cited the use of religious symbols in military cemeteries.
Utah Assistant Attorney General Thom Roberts defended the use of the privately funded crosses as a way to quickly convey a message to passing motorists that a trooper died there, and said the crosses are not an endorsement of religion.
“The cross can be and often is used as a secular symbol of death,” Roberts argued. “If (motorists) understand the history and purpose of the memorial program they’ll learn it was designed by Mormon individuals who do not use the cross as a religious symbol.”
Texas-based American Atheists argued that the crosses are symbols that convey a government endorsement of religion and shouldn’t be on public land. Atheists’ attorney Brian Barnard argued that without any context, the crosses could indicate that the trooper who died was a Christian.
“Here these crosses stand alone,” Barnard told the judges. “There isn’t anything else nearby that says they’re not religious in nature.”
A joint resolution by the Utah Legislature in 2006 declared the cross a nonreligious, secular symbol of death, Roberts said.
Appeals Court Judge David M. Ebel told Roberts that Utah’s declaration doesn’t necessarily make it so.
“Declaring something a purse doesn’t make it a purse,” Ebel said.
The courtroom gallery erupted in laughter when Ebel added: “If we just let the state say this is secular, we wouldn’t have any problems.”
Judge Harris Hartz later told Roberts: “Give me an example that it’s a secular symbol of death. Show me a non-Christian that uses a cross to symbolize death.”
The judges also expressed concern that Utah officials would not allow a similarly sized religious symbol, a Star of David symbolizing the Jewish faith, for example, if a trooper’s family requested one.
“If it was a Jewish or a Muslim trooper, that person wouldn’t get it. That’s where I have a problem,” Ebel said.
Utah’s 14 memorial crosses, paid for by the private Utah Highway Patrol Association, contain the highway patrol’s logo and a small plaque with a photo and short biography of the fallen trooper, as well as the trooper’s name, rank, badge number and year of death.
Luke Goodrich, an attorney with The Becket Fund for Religious Liberty, argued on behalf of Colorado, New Mexico, Oklahoma and Kansas, which asked to argue because the case could affect memorials in their states. Goodrich asked the judges to decide the case not on the religiousness of crosses, but on whether the state provides a neutral forum for expression.
The judges did not say when they would rule.
Courts have found that crosses don’t always convey a religious message. The same court last year found the three crosses used by Las Cruces, N.M., in a city seal was a pictograph of the city’s name, which in Spanish means “The Crosses.”
