- The Washington Times - Monday, October 31, 2011

The Supreme Court handed a victory to atheist groups Monday, declining to hear a case on roadside crosses honoring fallen Utah state troopers in a move likely to intensify the debate about the constitutionality of religious symbols on public property.

The high court’s refusal on an 8-1 vote to take the case means that a lower-court ruling against the crosses will stand. The 10th Circuit Court of Appeals based in Denver ruled in December that the 14 towering crosses, erected on public property, constitute a government endorsement of Christianity.

Brian Barnard, the Salt Lake City attorney who filed the challenge on behalf of American Atheists, said he was “not surprised” by the outcome, saying the 10th Circuit’s ruling was “correct and appropriately applied Supreme Court precedent.”

“There is no question that the [Utah Highway Patrol] troopers should be honored: They gave their lives in the line of duty and in service to Utah,” Mr. Barnard said in a statement. “However, troopers can be and should be honored with a symbol that is inclusive of all Utahns.”

But conservative groups lambasted the court, saying the move would not only result in the removal of religious symbols in the six states under the 10th Circuit’s jurisdiction, but could threaten national memorials such as the tombstones at Arlington National Cemetery.

“The U.S. Supreme Court decided today to let stand one of the worst court decisions on religious liberty in American history,” Ken Klukowski, director of the Center for Religious Liberty at the Family Research Council, said in a statement, adding that the refusal to take the case aids the effort to “sterilize the public square of references to faith.”

The other five states affected by the decision are Colorado, Kansas, New Mexico, Oklahoma and Wyoming.

Critics also said the court has sowed confusion by failing to set a uniform legal standard on the issue of religious imagery on public lands. A series of lower-court decisions now apply different legal tests in different jurisdictions.

“I’m shocked, frankly, that the court didn’t take up this case because there’s such a split among the circuits on this,” Utah Attorney General Mark Shurtleff said. “Really, the Supreme Court has created this problem because they’ve said it’s OK to have a religious symbol on public property, depending on where you live.”

Just last year, the Supreme Court ruled in favor of allowing an 8-foot metal cross, erected as a veterans’ memorial, to remain in the Mojave National Preserve in California. In the April 2010 decision, the court ruled 5-4 that the display of public religious symbols “need not be taken as a statement of governmental support for sectarian beliefs.”

Justice Clarence Thomas was the only justice to voted to take the case, saying in a 19-page dissent that the court should have heard the argument to clarify an issue that has “confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”

Four justices must agree to hear arguments before the high court will take a case.

David Silverman, president of American Atheists, said the Utah case would not have been the ideal vehicle for clarifying the court’s position because the state had argued that the purpose of the memorials was secular, not religious.

“I agree that the court could give us a little more guidance on what’s legal and what’s not legal,” Mr. Silverman said. “I don’t think this was the case to do it.”

After the lawsuit was filed in 2005, the Utah Legislature passed a resolution stating that the white cross “has become widely accepted as a symbol of death, and not a religious symbol, when placed along a highway.”

Even so, the 10th Circuit ruled against the state, finding that the cross memorials gave the impression that “the state of Utah is endorsing Christianity.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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