The Establishment Clause And Utah Crosses

-Submitted by David Drumm (Nal), Guest Blogger

The Establishment Clause is that portion of the FIrst Amendment that states: “Congress shall make no law respecting an establishment of religion.” The meaning of the phrase “an establishment of religion” is the subject of much debate. If the phrase is changed slightly to read: “the establishment of religion”, the meaning would refer to the act of establishing a religion. However, the use of the word “an” changes the meaning. With “an”, the meaning now refers to a religious establishment. Congress can make no law respecting a religious establishment.

A religious establishment would be those things a religion establishes such as a church, temple, synagogue, or mosque. A religious establishment would be the organization which operates the religion. A religious establishment would be the religious community. A religious establishment would be the form or formulary of the religious services.

The Latin cross has been established by Christianity as a symbol of the crucifixion of Jesus. When government places, or allows the placement, of the Latin cross on public land, it is approving the display of an item of religious establishment.

When the Supreme Court recently denied cert in the case of Utah Highway Patrol Ass’n v. American Atheists, the ruling of the United States Court of Appeals for the Tenth Circuit was allowed to stand. In 1998 the Utah Highway Patrol Association (UHPA), a private organization, decided to honor fallen troopers by placing large (twelve feet tall), privately funded, white crosses near the locations of their deaths.

The Tenth Circuit noted the cross memorials at issue in this case fall squarely within the rule pronounced in the Supreme Court decision in the case of Pleasant Grove City, Utah, et al. v. Summum (2009), which stated:

Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land.

The Tenth Circuit found that the Utah crosses fell into the category of government speech as defined in Pleasant Grove.

The Tenth Circuit opined:

Here, we conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of Christianity, and they do so standing alone (as opposed to it being part of some sort of display involving other symbols). That cross conspicuously bears the imprimatur of a state entity, the UHP, and is found primarily on public land.

While the Latin cross may evoke some concepts that transcend Christianity, it primarily evokes a concept that is strictly Christian.

The Plaintiffs, American Atheists, Inc., sought $1 in nominal damages, an injunction ordering the removal of these memorial crosses from state property, and an injunction ordering that the UHP insignia be removed from all UHPA memorial crosses. The District Court granted summary judgement against the Plaintiffs, and the Tenth Circuit Court of Appeals reversed and remanded.

H/T: ScotusBlog, William W. Van Alstyne.

30 thoughts on “The Establishment Clause And Utah Crosses”

  1. And Barney, take it a step further what if it was a muslim, or a jew, would they be forcing their views on others? Is it only christians who should be allowed to force their views (their symbols) on others? And heck lets not even consider the taoists or Wiccans or buddhists, etc. BS is only BS when it is the other guys point of view or Beliefs?

  2. Pete: We’re talking Utah, here. The gummint doesn’t have to put rocks everywhere; God did it, Herself.

  3. Barney, nice strawman you have there. No one is trying to banish religion. Not gonna happen. What the courts are trying to is keep government out of the religion business, where it has no business.

    Keep it off government property and out of government policy papers. Camel getting his nose in the tent and stuff like that.

    If you want to set up a roadside cross, I suggest you buy a small parcel of land near the road and set up the biggest damn cross you want as long as it does not interfere with air traffic.

  4. “And really, what harm does this do to an Atheist?”

    “Atheists are citizens entitled to the full expression of rights granted to all Americans. It’s hardly for you to decide what harm is or isn’t done. Forcing one’s Christianty on others, whether they are atheists, Jews, Muslims, Hindus or American Indians is as repugnant and Taliban-esque as it is un-Constitutional.”

    So its up to atheists to abuse the court system and strip every reference of religion everywhere? Sounds like atheists are forcing its backward, secular humanist view on others.

    The court system should throw out all this pointless frivilous BS and charge the costs to these atheist groups.

  5. i’m torn between the tackiness of “look who died here” memorials and the safety issue of putting these monuments in the roads right-of-way where someone may have to swerve to avoid hazards.

    if the romans had killed jesus by stoning instead of crucifixion would they be putting rocks everywhere.

  6. So long as the crosses don’t offend mecca whats the difference…I am sure if a fallen Jewish officer or such happens in Utah there’ be no back lash…right?

  7. Not Utah, but Tennessee a few years ago. Not Atheists, but UU’s… which happens to be my religion. A self-proclaimed “Christian” nut-job entered a UU church carrying some sort of automatic weapon and shot a bunch of people he believed to be evil, killing some of them. No, it’s not an exact analogy, but it makes one very important point…

    Those who do not experience religious discrimination personally tend to think there is none. In America, that usually means Christians… Bron, for instance.

    Do Utah roadsides contain any Stars of David? Muslim Crescents? UU Flaming Chalices? No? You want to know why we make a fuss about these crosses… there’s your answer. Minority religions have a hard enough time without active discrimination from their government, something America’s founders understood all too well.

  8. “As long as the state of Utah does not establish a state religion”

    There are many, including myself, who think they have, albeit unofficially.

  9. @mahtso: Utah did not place the crosses, a private group did.

    True enough, but Utah allowed public land to be used and allowed the symbol of the Utah Highway Patrol to be used on crosses, either implicitly by inaction or explicitly, and that counts as an endorsement of a religious act.

    @Bron: there is nothing wrong with a Christian cross placed on the side of the road to memorialize a fallen Christian trooper.

    Yes there is, and it doesn’t matter if the majority thinks there is nothing wrong with it, I find it an offensive use of public land, private citizens should not be allowed to modify or permanently install anything on public land. If I just unilaterally went and decided to dig up some land and install a basketball court in a public park, should that be allowed? How about a memorial statue of myself?

    I do not think those should be allowed, because it would be an individual preempting the usage of the public space and preventing any other usage. Why should a private citizen be allowed to construct any permanent fixture on public land? If somebody crashes into a cross some night, who is responsible for the damage or injury?

    The Utah Highway Patrol does not own the road or the shoulder, they don’t get to decide what to do with it. If the group did it without permission of the State, the state should remove them as trash immediately and fine the group for the cost of restoring the land to its original condition. If the State endorsed the act and gave them permission, it endorsed an expression of a religious sentiment that violates the Constitution.

  10. gene H:

    re- Penn State thread.

    I am not C. Everet Kook.

    Secondly I wrote one sentence and was not trying to jack the thread. thirdly the cover up by Penn State and the Mann data fabrication and subsequent white washing of that speak to the general mindset of most organizations circling the wagons and protecting the institution and its stars.

    Principles Gene, but then you seem to have a hard time with those.

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