Last month, the Supreme Court declined to review the Tenth Circuit Court of Appeals’ Utah highway cross decision. As the Tenth Circuit previously held that cross memorials honoring fallen troopers on Utah highways were unconstitutional under the Establishment Clause, the crosses were set to be removed.
In a last-ditch effort to save the crosses last month, the Utah Highway Patrol (UHP) removed its logo from each of the 14 crosses, and added signs stating that the crosses are private memorials and do not endorse religion.
But is it enough?
The Tenth Circuit Court of Appeals originally evaluated the crosses under the Lemon/endorsement test. Under the Lemon test, a challenged display must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster an excessive government entanglement with religion.
Brian Barnard, the attorney representing the American Atheists in the Utah highway cross challenge, maintains that the logo removal, while an improvement, is not enough to overcome the constitutional hurdle.
"It's a step in the right direction. But the cross still remains a poignant religious symbol and it's in a prominent place on government property where no other organization or individual is given permission to have a similar display," Barnard told the Associated Press.
The atheists have suggested a non-religious symbol, like an obelisk, to replace the crosses. (Sidebar: even obelisks have religious meaning. Might another symbol, if one can be found, better satisfy plaintiffs?)
Barnard has asked a federal judge for a final order to remove the crosses, but the UHP spokesperson is hopeful that the logo removal and disclaimer will be enough to persuade the court to allow the Utah highway crosses to stay in place.
- Is Justice Clarence Thomas Right About the Establishment Clause? (FindLaw's Supreme Court blog)
- Supreme Court won't hear Utah highway crosses dispute (USA Today)
- Establishment Clause Case Involving Cross On Federal Lands (FindLaw's Supreme Court blog)