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Attorney: Supreme Court shouldn't waste time on roadside crosses case

Published July 26, 2011 3:57 pm

Federal court • Brian Barnard says the nation's high court need not take up Utah case.
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Attorneys for an organization opposed to the placement of 12-foot-high crosses on public property in Utah to memorialize state troopers killed in the line of duty have asked the U.S. Supreme Court to nix hearing the case.

In a brief filed this week on behalf of client American Atheists Inc., Salt Lake City civil rights attorney Brian Barnard said the nation's high court should spend its time on cases that have implications outside of Utah, saying the debate over whether roadside crosses on state land is appropriate doesn't apply outside of the Beehive State.

"There are no similar [publicly funded] memorial cross programs in other states. This decision is not going to have ramifications beyond Utah," Barnard said of his request. "While of concern to the Utah Highway Patrol Association, the case is not the kind of case nor of such national interest, that the U.S. Supreme Court would normally get involved in."

Barnard's filing follows an April request from the Utah Attorney General's Office for the Supreme Court to hear arguments on whether state troopers can be memorialized with roadside crosses on state land.

Utah Attorney General Mark Shurtleff is pushing the high court to take on the case, arguing that the highway crosses should be displayed.

"With two simple lines the highway crosses remind us of the ultimate sacrifice made by troopers while trying to protect us," Shurtleff has said. "Before now, no other court has ever held that memorial crosses establish a religion. The crosses only establish a trooper died in the line of duty."

The recent filings by Barnard and Shurtleff are the latest arguments in what has been a lengthy court battle over the alleged display of religious imagery on public land between the Utah Highway Patrol Association (UHPA) and New Jersey-based American Atheists Inc.

In January, a federal appeals court in Denver stayed an order demanding the UHP remove crosses placed along the state's highways to commemorate troopers killed in the line of duty. The 90-day stay, approved recently by the 10th Circuit Court of Appeals, allowed attorneys for the association and UHP to try to appeal their case to the nation's highest court.

Former Texas Solicitor General Ted Cruz will represent the A.G.'s Office and attorney Byron Babione of the Alliance Defense Fund in Arizona will represent UHPA if the high court takes up the case. Babione will try to persuade the Supreme Court that the crosses don't establish a religion because "the passive memorials coerce no one to do anything."

The Supreme Court hears roughly 50 cases each year out of about 10,000 that apply, Barnard has said.

The case began when American Atheists and three of its Utah members sued the state in 2005 for allowing the association to incorporate the UHP logo on the 12-foot-high crosses and place some of them on public property.

Fourteen crosses sit alongside state highways or on the lawn outside a UHP office.

The trooper's name, rank and badge number are printed on a six-foot crossbar, and a large depiction of the UHP's beehive symbol hangs below where the two bars meet. The first cross was erected in 1998 on private property and 13 others were added later, most of them on public property. The memorials are privately funded and owned by the UHPA, while the state owns the public land on which some of them sit.

"My clients believe that the Highway Patrol troopers should be honored for their sacrifice," Barnard has said. "They can be and should be honored with memorials that do not emphasize religion and do not emphasize one religion to the exclusion of all others."

The 10th Circuit Court of Appeals ruling in January to allow the stay followed a 5-4 December decision by the same court to deny a request to hear the case from the UHPA.

The UHPA had wanted the court to reverse an earlier ruling that the crosses are unconstitutional.

Dissenting judges argued that not hearing the case may send a message that federal courts are "increasingly hostile to religious symbols in the public sphere."

In the petition filed by the A.G.'s Office in April, attorneys wrote that the 10th Circuit's decision could ban crosses on highways and cemeteries in Oklahoma, Kansas, New Mexico, Colorado and Wyoming, in addition to Utah. The crosses are allowed in other states, attorneys argued.

"Thus a driver travelling an interstate through several circuits might observe roadside memorials containing crosses in one state, but a mile down the road, the very same memorials will be deemed unconstitutional," the petition states.

It asks the high court to clarify tests for endorsing a religion and whether the crosses on Utah's roads establish a religion.

But Barnard's response to the A.G.'s petition, filed Monday, offers a different argument. He said that the A.G.'s petition, which references crosses in other states, is referring to homemade crosses constructed by family members.

"If you've ever driven through Arizona or New Mexico, where there is a large Hispanic community, you see homemade little crosses where there have been fatal accidents. Those are crosses that family put up. You'll see those and it is largely a Hispanic and Latin American tradition," Barnard said. "You don't see those in Utah and there is a reason for that."

In Utah, such crosses are prohibited, and Utah Department of Transportation workers take them down when they come across them, Barnard said. He said his research shows no other states in which public money is used to fund roadside crosses to honor law enforcement.

"These large white crosses, especially the two on the front lawn of the UHP office in Murray, are so religious in nature, that the 10th Circuit Court of Appeals held that their display with the official UHP logo constituted the establishment of religion in violation of the First Amendment," Barnard wrote.

The Supreme Court will announce whether it has decided to hear the case at a later date. The court is currently in recess, so a decision on whether the case will be heard will likely not come until October, Barnard said.

mrogers@sltrib.com

Twitter: @mrogers_trib