August 18, 2010, the Tenth Circuit Court of Appeals ruled that the twelve-foot high crosses erected in memory of fallen state troopers by the Utah Highway Patrol Association were unconstitutional. According to the Court, “the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity.”
“The Constitution does not require stripping government property of all religious symbols—especially when those symbols are privately owned, privately funded, and privately maintained,” said Luke Goodrich, Deputy National Litigation Director for the Becket Fund for Religious Liberty. “When the government allows private speech on public property, it cannot discriminate between secular and religious speech and muzzle only the religious.”
In 1998, the Utah Highway Patrol Association—a private, secular, non-profit organization representing state troopers and their families—initiated, funded, and constructed memorial crosses for fallen Utah state troopers. Some of the crosses stand on public highway roadsides, near where each of the troopers died in the line of duty, in honor of the sacrifice they each made for their families and the State of Utah. American Atheists, an organization dedicated to promoting absolute separation of church and state, challenged the privately-owned memorials claiming that they violated the constitution because some of the crosses appeared on government land.
The Becket Fund filed a brief and argued the case in the Tenth Circuit on behalf of itself and the states of Colorado, Kansas, New Mexico, and Oklahoma. In the wake of this decision, 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.
“The private use of religious symbols is not the same as government establishment of religion,” added Goodrich. The case is likely to be appealed to the full Tenth Circuit court and then the Supreme Court.
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