— Alliance Defense Fund attorneys are asking a full panel of the U.S. Court of Appeals for the 10th Circuit to rehear a ruling
issued last month by a three-judge panel that struck down roadside memorials to fallen Utah state troopers as unconstitutional.
The petition for rehearing en banc filed Thursday asks the court to reverse the panel’s decision against the cross-shaped memorials, which were originally upheld by a district court ruling in American Atheists v. Davenport. ADF attorneys contend that the three-judge panel’s decision is highly problematic, especially in light of a recent U.S. Supreme Court ruling in a separate case that indicates such memorials are likely constitutional.
“One atheist group’s agenda shouldn’t diminish the sacrifice made by Utah highway patrol officers and their families. We are asking the full 10th Circuit to allow the families of the fallen to honor their loved ones as they wish,” said ADF Senior Legal Counsel Byron Babione. “We trust the full 10th Circuit will determine, as the U.S. Supreme Court recently signaled, that individualized memorial crosses honoring fallen troopers simply do not amount to a government establishment of religion.”
In April, the U.S. Supreme Court issued an opinion in the lawsuit Salazar v. Buono which concluded that a cross-shaped veterans’ memorial in California’s Mojave Desert did not have to be removed. The opinion addressed the subject of roadside crosses honoring fallen police officers:
“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. 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,” the high court wrote.
If the Utah crosses are ultimately struck down, it could jeopardize similar memorials across the nation, including 14 crosses displayed on Colorado’s Storm King Mountain where firefighters lost their lives in a 1994 wildfire.
American Atheists sued 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 supports highway patrol officers and their families.
The atheist group demanded that the roadside memorials, which clearly identify the fallen troopers, be removed from public land and that Utah’s beehive logo--used as a highway patrol symbol on officers’ shoulder patches--be removed from any memorial on private land. The memorials will remain until all appeals are exhausted in the suit.
Frank D. Mylar, one of more than 1,800 attorneys in the ADF alliance, and the National Legal Foundation also represent the UHPA in the lawsuit.