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.