[JURIST] Utah Attorney General Mark Shurtleff [official website] on Wednesday asked [cert. petition, PDF] the US Supreme Court [official website] to decide whether crosses placed beside highways as memorials to deceased Utah Highway Patrol (UHP) [official website] troopers is an unconstitutional government endorsement of religion. The petition seeks review of an August ruling [JURIST report] by the US Court of Appeals for the Tenth Circuit [official website], which found that "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity." The memorials in question, erected in 1998 by the Utah Highway Patrol Association (UHPA) [official website], consist of 14 12-foot-high cross memorials displaying the fallen troopers' name, rank, badge number and the official UPH symbol. The memorials were paid for with private funds, but most were placed on public land. Former Texas solicitor general Ted Cruz, representing Utah [press release] pro bono, argues that the lower court improperly applied the Establishment Clause [Cornell LII backgrounder] to "passive public displays" and erroneously deemed the memorials "government speech." Discussing inconsistent precedent, the brief states:
This confusion has generated a three-way circuit split and lower-court disarray regarding the proper test for evaluating Establishment Clause challenges to passive displays on government property. ... In short, the Tenth Circuit's approach, if allowed to stand, will prohibit the government from accommodating public displays of religious symbols, forbid a widely embraced means of commemorating fallen heroes on public property, and manifest an unconstitutional hostility toward religion.Representatives for American Atheists [advocacy website], the organization that brought the original suit, expressed doubt [AP report] that the petition will be granted.
Last week, the US Court of Appeals for the Seventh Circuit [official website] dismissed [JURIST report] a constitutional challenge to the National Day of Prayer (NDP) [official website], overturning an earlier lower court decision [JURIST report] that found the event in violation of the Establishment Clause by representing government-backed encouragement that Americans engage in non-secular activity. The Supreme Court ruled [JURIST report] last April in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. The dispute concerned a Latin cross on a rock outcropping in the Mojave National Preserve. The display of the cross on public property had already been found in violation of the Establishment Clause, so the government sought to transfer the portion of land on which the cross was located to a private entity. Last March, the US Court of Appeals for the Ninth Circuit [official website] ruled that a teacher-led recitation of the Pledge of Allegiance [JURIST report] in public schools does not violate the Constitution's Establishment Clause. The court also upheld the use of the phrase "In God We Trust" on currency. In November 2009, the US Court of Appeals for the Third Circuit [official website] ruled that a school district's policy prohibiting the performance of religious holiday songs [JURIST report] does not violate the Establishment Clause.