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Supreme Court avoids dispute over highway crosses

SALT LAKE CITY — The Supreme Court ruled Monday that it would not hear an appeal of a ruling that 12-foot-high crosses along Utah highways in honor of dead state troopers violate the Constitution.

The justices’ 8-1 vote rejected an appeal from Utah and a state troopers’ group that wanted the court to throw out the ruling and take a more permissive view of religious symbols on public land. Since 1998, the private Utah Highway Patrol Association has paid for and erected 14 memorial crosses designed to honor state troopers who had died in the line of duty.

Eleven are on state lands and three are on private property. The Texas-based American Atheists Inc. and three of its Utah members sued the state in 2005, alleging an improper mixing of government and religion because the white crosses bear brown and gold beehive-shaped shield of the Utah Highway Patrol.

In 2010, the federal appeals court in Denver said the crosses were an unconstitutional endorsement of Christianity by the state government and ordered the crosses removed from public land. A three judge panel said the crosses would leave any “reasonable observer” with the impression or fear that “Christians are likely to receive preferential treatment” from the Utah Highway Patrol.

Justice Clarence Thomas dissented in a 19-page opinion, saying that the case offered the court the opportunity to clear up confusion over its approach to disputes over the First Amendment’s Establishment Clause, the prohibition against governmental endorsement of religion.

“Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles,” Thomas said.

Previous high court cases have made it difficult for lower courts to figure out what to do in this area and “rendered the constitutionality of displays of religious imagery on government property anyone’s guess,” he said.

Thomas referred specifically to a pair of cases in 2005 about the Ten Commandments. On the same day, the court upheld a Ten Commandments monument on the grounds of the Texas state capitol in Austin, yet declared unconstitutional a display in the McCreary County courthouse in Kentucky.

Thomas’ dissent appeared in line with arguments made on Utah’s behalf by former Texas Solicitor General Ted Cruz. In court papers, Cruz said the Denver Circuit Court was the only appeals court to ever rule that roadside crosses memorializing the dead are unconstitutional — placing it in conflict with rulings from other appeals courts and the U.S. Supreme Court, which have found that symbols such as crosses must be considered in context.

“On a number of occasions, this court has explained how the context of a display can give drastically different meanings to the cross — many of which are entirely secular,” wrote Cruz, who represented Utah for free. “Memorials that are legal in one state are now illegal in other states.”

The failure of the high court to take up the issue will leave state and local governments confused about what to do, Utah’s Attorney General Mark Shurtleff said.

“I’m a little upset with the decision,” Shurtleff said. “Clearly there’s going to be more litigation on this and other religious symbols until the Supreme Courts takes this thing up and sets a standard.”

Two Utah men behind the cross project have said they selected crosses for the memorials because the image of a cross can simultaneously convey a message of death, remembrance, honor, gratitude and sacrifice.

In 2006, the Utah Legislature passed a joint resolution declaring the cross a nonreligious secular symbol of death.

Utah’s case will now go back to a federal judge in Salt Lake City for an order directing the state to take down the crosses. Brian Barnard, the Salt Lake City attorney representing the atheists, said that isn’t necessarily the only option. The crosses could be replaced with other monuments or moved to private land.

“We’ve said all along that these troopers should be honored, but let’s just do it in way that doesn’t violate the Constitution,” Barnard said. “If they want to put up a flag, an obelisk, a badge or some other symbol that is not religious in nature, they can do it and can leave them on public land. That would be fine, and it would comport with the 10th Circuit’s ruling and with the First Amendment.”

Shurtleff disagreed, calling the proposal for alternate memorials on the current cross sites “silly.”

“When someone sees that white cross, they know what it means … it means someone died there,” he said. “If you put up an obelisk, people will stare at it and wonder what it’s doing there.”

Associated Press reporter Mark Sherman contributed to this story.