The State of Utah has permitted the Utah Highway Patrol Association to erect twelve-foot-tall Latin crosses on state-owned land to memorialize and honor state troopers who have died in the line of duty. The crosses, which bear the UHPA logo and a plaque with the fallen trooper’s photo and biography, have been placed along state highways, near where the troopers died. In December 2005, American Atheists sued in federal district court, claiming that the State violated the Establishment Clause of the federal and state constitutions by allowing UHPA to erect the crosses. UHPA intervened as a defendant in the case. In November 2007, the court granted summary judgment in favor of the State, concluding that there was no Establishment Clause violation because the State’s conduct had neither the purpose nor the effect of conveying a message that it preferred religion or a particular religious belief. Underlying the court’s conclusion were its determinations that the State’s allowing the UHPA to erect the crosses could have had an exclusively secular purpose — honoring the fallen troopers — and that to a reasonable observer the crosses were merely a “secular symbol of death,” not a religious symbol. American Atheists appealed the court’s ruling to the U.S. Court of Appeals for the Tenth Circuit.
On August 6, 2008, Americans United and coalition partners representing majority and minority faiths filed an amicus brief with the Tenth Circuit. The brief argued that the Latin cross has long been, and remains today, the preeminent symbol of Christianity, and that using the cross as a burial marker does not transform it into a secular symbol. The brief further argued that for a court to allow cross displays by labeling the cross as a secular symbol is offensive to Christians and non-Christians alike, and is corrosive to the values underlying the Establishment Clause.
On August 18, 2010, the Tenth Circuit held that while the State had a secular purpose for allowing UHPA to erect the memorial crosses, the crosses conveyed the impression that the State was endorsing Christianity in violation of Establishment Clause. The State and UHPA submitted petitions for rehearing en banc, which the Ten Circuit denied in all respects (with the exception of a minor technical change). The State is expected to seek review by the U.S. Supreme Court.