ADF takes Utah roadside crosses case to U.S. Supreme Court

Divided 10th Circuit ruled crosses for fallen troopers unconstitutional despite high court comments indicating otherwise
Wednesday, April 20, 2011

ADF attorney sound bites (4/20/11):  Byron Babione #1  |  Byron Babione #2

WASHINGTON — The Alliance Defense Fund has filed a petition with the U.S. Supreme Court that asks the court to uphold as constitutional roadside memorial crosses honoring fallen Utah state troopers. A federal district court upheld the constitutionality of the crosses, but the U.S. Court of Appeals for the 10th Circuit struck them down despite recent comments from the Supreme Court itself indicating that the crosses likely pass constitutional muster.

“One atheist group’s agenda shouldn’t diminish the sacrifice made by Utah highway patrol officers and their families. We are asking the Supreme Court to allow the families of the fallen to honor their loved ones through these constitutionally permissible memorials,” said ADF Senior Counsel Byron Babione. “The Supreme Court recently signaled that individualized memorial crosses honoring fallen troopers simply do not amount to a government establishment of religion. That guidance applies directly to this case.”

Four of the 10th Circuit’s nine justices strongly dissented when that court barely agreed to uphold a three-judge panel’s decision to strike down the memorial crosses in American Atheists v. Davenport, now titled Utah Highway Patrol Association v. American Atheists. ADF attorneys appealed the panel’s decision to the full 10th Circuit in September of last year and Friday asked the Supreme Court to hear the case. The memorials will remain in place until all appeals are exhausted in the suit.

In April 2010, the Supreme Court specifically addressed the subject of roadside crosses honoring fallen state troopers as part of its Salazar v. Buono decision, which concluded that a cross-shaped veterans’ memorial in California’s Mojave Desert did not have to be removed.

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” the high court wrote. “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.”

If the Utah crosses are ultimately struck down, it could jeopardize similar memorials honoring other fallen heroes across the nation, including 14 crosses on Colorado’s Storm King Mountain where firefighters lost their lives in a 1994 wildfire.

American Atheists sued officials of the Utah Highway Patrol and the Utah Transportation Department in 2005. The group claimed that the roadside memorials are a state establishment of religion, even though the memorials are fully funded and maintained by a private organization, the Utah Highway Patrol Association. The UHPA, which supports highway patrol officers and their families, was allowed to intervene in the lawsuit to defend the memorial crosses in 2006. ADF attorneys--along with Frank D. Mylar, one of nearly 1,900 attorneys in the ADF alliance, and the National Legal Foundation--represent the UHPA in this case.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.