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Civil rights attorney scoffs at new highway crosses challenge

by Eric S. Peterson
- Posted // 2011-04-21 -

The Utah Attorney General’s Office has asked the U.S. Supreme Court to hear arguments in favor of allowing highway crosses as memorials to fallen state troopers. Brian Barnard who argued in favor of the crosses ban says the new argument won’t go far.

Fourteen white crosses adorned with the emblem of the Utah Highway Patrol, many on public lands, have reminded Utah drivers of the sacrifice of fallen Utah Highway Patrolmen, but in a 2005 lawsuit Utah members of American Atheists sued the state, arguing the crosses on state land represented more than troopers sacrifice—but also the official endorsement by the state of a religious belief.

“Before now no other court has ever held that memorial crosses establish a religion,” Attorney General Mark Shurtleff said in a recent press release. “The crosses only establish a trooper died in the line of duty.”

That position was not one held by the 10th Circuit Court of Appeals which ruled in August 2010 the display of such crosses was unconstitutional since it violated the establishment clause of the First Amendment which states that “Congress shall make no laws respecting an establishment of religion.”

In the new petition Shurtleff has enlisted the help of former Texas Solicitor General Ted Cruz to represent Utah if the case is agreed to be heard in the Supreme Court. Cruz, an establishment clause expert who has argued before the high court nine times in the past, is expected to shift the debate to argue that the crosses are “passive” memorials that do not coerce individuals into any belief or action and that the crosses themselves were donated from a private organization, the Utah Highway Patrol Association.

Brian Barnard, a local civil rights attorney who represented American Atheists in the fight says mincing the issue with terms of “coercive” and “passive” adds little to the argument.

“'Coercive’ is not the test under the establishment clause, and neither is ‘passive,’ whatever that means,” Barnard writes via e-mail.

He argues that the state cannot endorse a particular religion. And that endorsing it in a casual or passive way, is just as prohibited by the First Amendment as it would be if the endorsement was brought through coercive arm-twisting.

“A 12-foot privately owned portrait of Jesus permanently displayed in the State Capitol in a frame with a title ‘Utah: Life Elevated’ is not ‘coercive’ and is ‘passive’ and yet is clearly in violation of the Establishment Clause,” Barnard writes. “It violates the Establishment Clause even though a person can look the other way.”

But Barnard still could be in for a fight if the case is heard at the high court. In 2009 Barnard and associated attorneys lost a legal battle in the Supreme Court in the Pleasant Grove vs. Summumm case. His clients included the church of Summumm which had fought to get a monument depicting its “Seven Aphorisms” to be displayed in the Pleasant Grove park alongside a monument that included the Ten Commandments. The Supreme Court decision in that case did not examine the establishment clause argument in depth about separations of church and state in weighing if the city could choose which privately donated monuments they could erect in the city’s public park. They ultimately ruled in favor of  the city of Pleasant Grove.

“Pleasant Grove v. SUMMUM held that even a privately owned monument permanently on government property sufficiently ‘becomes’ government speech to violate the First Amendment,” Barnard writes.

But Justices Antonin Scalia and Clarence Thomas, intimated  however,that a permanent monument, on public land, like the Ten Commandments monument in Pleasant Grove’s Pioneer Park did not violate the Establishment Clause. An argument that could play out again with privately donated crosses on state land.

“The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, it’s historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion,” the justices concurred in the 2009 decision.

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