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Justices turn aside appeal over highway crosses

By Bill Mears, CNN Supreme Court Producer
updated 2:12 PM EDT, Mon October 31, 2011
STORY HIGHLIGHTS
  • Supreme Court doesn't get involved in Utah case involving 14 large crosses
  • Panel had said crosses could be seen as "government's endorsement of Christianity"
  • Justice Clarence Thomas rebukes high court's inaction
  • He says court should take a stand on Constitution's Establishment Clause

Washington (CNN) -- The Supreme Court has passed up a chance to get involved in a dispute over memorial crosses erected along Utah public roads to honor fallen state highway troopers, and one justice is not pleased that his colleagues are staying out of the church-state fight.

The high court's decision Monday upholds a lower court ruling finding the displays unconstitutional. A three-judge panel of the 10th Circuit U.S. Court of Appeals ruled this summer that the 14 large crosses would be viewed by most passing motorists as "government's endorsement of Christianity."

"We hold that these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion," concluded the Denver-based court. A private trooper association then appealed to the U.S. Supreme Court.

A Texas-based group, American Atheists, successfully sued five years ago to have the nonprofit memorial project scrapped and the crosses removed from public property.

At issue was whether the crosses violated the Establishment Clause of the Constitution, by having the government "endorsing" the Christian symbols, even if indirectly.

The crosses have been allowed to remain pending appeal in the case, but the court's refusal to hear the case now means removal may soon happen.

The Utah Highway Patrol Association (UHPA) in 1998 began erecting the 12-by-6-foot monuments, which contain the fallen trooper's name, rank and badge number. A picture of the officer and some biographical information are included on a separate plaque placed where the two bars of the cross meet. The state insignia is also included, which the judges in particular said raised constitutional concerns.

The service group said its main message was not religious in nature but, among other things, was to be "a lasting reminder to UHPA members and Utah highway patrol troopers that a fellow trooper gave his life in service to this state" and to "encourage safe conduct on the highways."

While placed on public land and with the state's permission, the white crosses are privately owned and maintained. The state expressly noted that it "neither approves nor disapproves of the memorial marker."

In rejecting the crosses, the appeals court made several arguments, such as the large size and location of the crosses -- on busy public highways where motorists cannot help but notice. Other similar memorial crosses have been erected on public land such as Arlington National Cemetery to honor fallen war dead. But those judges said those markers are generally accessible or visible only to those who expressly choose to visit them, unlike roads where citizens cannot help but see them.

The Supreme Court has in recent years taken a case-by-case approach to Establishment Clause cases. The justices in 1947 said the government needed to be "neutral" but "not an adversary" toward religion. The court has upheld legislative chaplaincies, tax exemptions for churches, and the mention of "God" on U.S. currency and in oaths of office.

At the same time, government-sponsored school prayer is banned, and limits are imposed on aid to parochial schools.

The court's record on religious displays on public land is more mixed, with "context" a key criterion. The justices two years ago decided that a small religious group could not erect a granite monument in a Utah park next to an existing Ten Commandments display, which for the time being has been allowed to stay.

And last year, the conservative majority of the court concluded that a cross designed as a war memorial in a lonely stretch of national parkland in the California desert did not violate the constitutional separation of church and state.

In 2005, a Ten Commandments monument on the Texas statehouse grounds was allowed to stand, since it was surrounded by historical markers. But the same day, Ten Commandments parchments in two Kentucky county courthouses were ruled unconstitutional, with the high court majority calling them "a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document."

And some nativity scenes and menorahs placed in public parks in December have been allowed to stand, while some were ordered removed.

All that left Justice Clarence Thomas very concerned, as he issued a tough 19-page rebuke of the court for not accepting the Utah crosses case. He said that current Establishment Clause jurisprudence is "in shambles" and that a case-specific strategy has led "to this court's repeated failure to apply the correct standard -- or at least a clear, workable standard."

"Government officials, not to mention everyday people who wish to celebrate or commemorate an occasion with a public display that contains religious elements, cannot afford to guess whether a federal court, applying our 'jurisprudence of minutiae' will conclude that a given display is sufficiently secular."

The 10th Circuit had rejected arguments from the UHPA that many roads contain crosses or other religious symbols placed by private individuals honoring a dead relative killed in car accidents.

"The mere fact that the cross is a common symbol used in roadside memorials does not mean it is a secular symbol," the panel said. "The massive size of the crosses displayed on Utah's rights-of-way and public property unmistakably conveys a message of endorsement, proselytization, and aggrandizement of religion that is far different from the more humble spirit of small roadside crosses."

The judges also disregarded suggestions that since most of the deceased troopers were Mormon, and the Utah-based Church of Jesus Christ of Latter-day Saints does not use the cross as a religious symbol, the highway memorials were merely symbols of death and did not promote a particular faith.

There was no immediate reaction to the high court's decision not to accept the appeals.

The cases are Utah Highway Patrol Assn. v. American Atheists, Inc. (10-1276); Davenport v. American Atheists, Inc. (10-1297).

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