- The Washington Times - Thursday, December 23, 2010

A federal appeals court said it will not reconsider its previous decision to order the removal of roadside memorial crosses for fallen Utah Highway Patrol officers.

The 10th Circuit Court of Appeals in Denver said Monday it will let stand an August ruling by a panel of three of its judges that the crosses violate the Constitution’s prohibition against government establishment of religion.

The Utah Highway Patrol and the Utah Highway Patrol Association had asked the full court to reconsider the case in light of the August ruling, a typical step as part of the appellate process.

It is unclear whether the patrol association or the Utah Attorney General’s office, which represented the highway patrol, will appeal the 10th Circuit’s ruling to the Supreme Court, as neither returned e-mail messages seeking comment.

Lee Perry, a lieutenant in the highway patrol who along with another trooper came up with the idea for the cross memorials, told The Washington Times he would like to see an appeal.

“Hopefully our Supreme Court will take a look at this case,” Lt. Perry said, adding that he hopes it “turns out favorable there.”

American Atheists, a Texas-based organization, had asked the court to order the removal of the crosses on the grounds they violated the Constitution. The three-judge panel agreed, concluding that “the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity.

“Moreover, the fact that all of the fallen (Utah Highway Patrol) troopers are memorialized with a Christian symbol conveys the message that there is some connection between the [Utah Highway Patrol] and Christianity,” the judges wrote in a 38-page ruling. “This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the [Utah Highway Patrol] -both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah’s highways.”

The three-judge panel said 14 crosses, which are 12 feet tall, were erected mainly on public land - on areas not meant as religious symbols, but as secular memorials.

The deceased officer’s name and badge number are painted on the 6-foot crossbar in large black lettering. According to court records, the crosses bear the Utah Highway Patrol’s symbol, the deceased trooper’s picture and a plaque with biographical information.

The judges noted that the troopers who designed the crosses are members of the Church of Jesus Christ of Latter-day Saints, a religion that does not use the cross as part of its worship. The troopers said they chose the cross because it evokes the image of military cemeteries.

“Although we agree that some of these contextual elements may help reduce the message of religious endorsement conveyed by these displays,” the judges wrote, “we think that these displays nonetheless have the impermissible effect of conveying to the reasonable observer that the state prefers or otherwise endorses Christianity.”

Monday’s order did not indicate exactly how many of the court’s 10 full-time judges voted against rehearing the case, but it did say that four judges voted in favor of doing so. The order also indicated that Chief Judge Mary Beck Briscoe took no part in the case but did not indicate why she recused herself.

Judge Paul J. Kelly wrote in a dissenting opinion that the court should rehear the case and that the three-judge panel incorrectly focused on the religious symbol of the crosses instead of the message they meant to convey. He wrote that the panel reached the “odd conclusion that the [Utah Highway Patrol] is a sort of ‘Christian police’ that favors Christians over non-Christians - a conclusion that has no support in the facts.”

“Without consulting all relevant factors, we simply cannot determine whether the challenged displays violate the establishment clause” Judge Kelly wrote. “To presume otherwise is to evince hostility towards religion, which the First Amendment unquestionably prohibits.”

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