Today the Tenth Circuit federal appeals court in Denver heard arguments in American Atheists v. Duncan, a challenge by American Atheists against roadside cross memorials for fallen Utah Highway Troopers. Luke Goodrich, legal counsel for the Becket Fund for Religious Liberty, argued that in this instance, crosses were private speech and the American Atheists were attempting to use government power to silence the grieving families. "This case is not about religion; it is about expression," said Goodrich
During the argument, the judges expressed concern about whether Utah’s policy would prevent troopers’ families from displaying the symbols of other religions such as Stars of David. "If that is Utah’s policy-and it’s unclear that it is-the Court can easily fix the problem," said Goodrich later. "Instead of taking down the crosses, the Court can order Utah to allow families to choose other religious or non-religious symbols."
The court also expressed interest in how this case tests the boundaries of the Supreme Court’s recent decision in Pleasant Grove City v. Summum. Summum set the standard for deciding when permanent monuments are government speech, and when they are private speech. Two of the three judges in the original Summum panel are hearing this appeal, and the lawyer for Summum is also the lawyer for American Atheists.
The Utah Highway Patrol Association-a private, secular organization representing state troopers and their families-initiated, funded, and constructed memorial crosses for fallen Utah state troopers. The crosses stand on public highway roadsides near where each of the troopers died in the line of duty. These privately-owned memorials are being challenged by the group American Atheists, who wanted to censor the Patrol Association’s memorials and force the Patrol Association to use only secular symbols. The circuit court ruled in Utah’s favor but the American Atheists appealed to the Tenth Circuit. The Becket Fund filed an amicus brief on behalf of Colorado, New Mexico, Kansas and Oklahoma. Goodrich argued as a designated Special Assistant Attorney General for Colorado.
If American Atheists prevail it would have a direct impact on the six states within the Tenth Circuit: Utah, Colorado, New Mexico, Oklahoma, Kansas, and Wyoming. Any privately-erected, religious memorials on government property in those states could be vulnerable to a court challenge. This includes historical descansos in New Mexico. Other states could be affected the same way because the Tenth Circuit’s ruling would be persuasive, but not binding, authority for courts in those states.