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ADF will appeal decision to strike down roadside memorials to fallen Utah troopers

10th Circuit panel says crosses unconstitutional despite U.S. Supreme Court ruling that says such crosses should stand
cross and sunset

DENVER — Alliance Defense Fund attorneys are reviewing all options for appeal of a ruling issued Wednesday by the U.S. Court of Appeals for the 10th Circuit that struck down roadside memorials to fallen Utah state troopers as unconstitutional. The 10th Circuit reversed a district court ruling in American Atheists v. Davenport that upheld the memorial crosses. ADF attorneys say the reversal is regrettable in light of a recent U.S. Supreme Court ruling in a separate case that indicates such memorials might be constitutional.

“One atheist group’s agenda shouldn’t diminish the sacrifice made by Utah highway patrol officers and their families. The families of the fallen should be allowed to honor their loved ones as they wish,” said ADF Senior Legal Counsel Byron Babione, who argued before the U.S. Court of Appeals for the 10th Circuit in March 2009. “Individualized memorial crosses honoring fallen troopers simply do not amount to a government establishment of religion. And the mention of the validity of roadside crosses by the Supreme Court in a recent decision is certainly an encouraging sign for our case on appeal.”

The U.S. Supreme Court opinion issued April 28 in Salazar v. Buono, which concluded that a cross-shaped veterans’ memorial in California’s Mojave Desert did not have to be removed, 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.

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 be removed from public land and that Utah’s beehive logo be removed from any memorial on private land.

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. 

  • Pronunciation guide: Babione (Babb-ee-own); Buono (Bwo-no); Mojave (Mow-ha-vee)

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.