DENVER (CN) – The 10th Circuit ruled in a 5-4 decision that it would not reconsider its decision to ban crosses that the Utah Highway Patrol Association erected as roadside memorials for fallen officers.
The majority of the court’s full panel did not issue an opinion behind the order, but the dissenting judges released two opinions.
Utah Highway Patrol Association had hoped to overturn an August decision that ruled the 12-foot-high white crosses – which included the name, rank and badge number of troopers killed in the line of duty, as well as the group’s beehive symbol – were unconstitutional.
The 13 crosses sit alongside state highways and side-streets, including two in front of the Utah Highway Patrol (UHP) field office.
American Atheists, a Texas-based nonprofit, sued Utah in 2005 for allowing the highway patrol to incorporate its logo on the memorials, first unveiled in 1998.
A federal judge upheld the crosses, but the federal appeals court in Denver reversed the lower court’s ruling on appeal. The three-judge panel found that the memorials violated the Establishment Clause.
“We conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity,” Judge David Ebel wrote for the court in August. “The memorials use the preeminent symbol of Christianity, and they do so standing alone. That cross conspicuously bears the imprimatur of a state entity, the UHP, and is found primarily on public land.”
Ebel continued: “Moreover, the fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity. This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP.”
One of the judges who dissented from Monday’s order, Paul Kelly, wrote that the court should have reversed of the ban.
“The court’s analysis begins by effectively presuming that religious symbols on public property are unconstitutional,” Kelly wrote. “Such a presumption has no basis in our precedent and is unwarranted.”
In an opinion joined by Terrence O’Brien, Timothy Tymkovich and Neil Gorsuch, Kelly wrote that the majority’s “reasonable observer” is unreasonably hostile toward religious symbols.
“The crosses are erected near the location of the officer’s death, the crosses were erected by a private organization for the purpose of memorializing the fallen trooper, the crosses were chosen by the trooper’s family, and that Utah expressly declined to endorse the memorials,” Kelly wrote. “Why would a reasonable observer conjure up fears of religious discrimination given the far more plausible conclusion supported by the facts on the record-that the crosses memorialize fallen troopers?”
Gorsuch also slammed the court’s interpretation of the “reasonable observer,” writing that the Justice Sandra Day O’Connor could not have anticipated the application in her Supreme Court opinion.
“All the same, our observer plows by, some combination of too blind and too fast to read signs adequate for interstate highway traffic,” Gorsuch wrote in an opinion joined by Kelly. “Biased, selective, vision impaired, and a bit of a hot-rodder our observer may be, but the reasonable observer of Justice O’Connor’s description he is not.”
The UHP had argued that it chose the white cross because it was the only symbol that could simultaneously convey death, honor, remembrance, gratitude, sacrifice and safety, Kelly wrote.
UHP officer Lee Perry and Robert Kirby, a former officer and current reporter at the Salt Lake Tribune, designed the memorials.