Today the Tenth Circuit told the state of Utah that it could no longer erect crosses by the side of the highway memorializing state troopers who have died. The WSJ Law Blog excerpts this part of the opinion in American Atheists, Inc. v. Duncan (PDF):

“This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the [Utah Highway Patrol],” the judges wrote, adding elsewhere in the opinion that “unlike Christmas, which has been widely embraced as a secular holiday. . . . there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death.”

I’m sorry, are there Hindus driving through Utah who are unaware that “Christians are likely to receive preferential treatment” in Utah? If so, I’d call that person a most unreasonable observer.

All joking aside, are we really living in a world where a simple cross to mark the death of a government worker violates the Establishment Clause?

Maybe it really is Opposite Day here at ATL. Don’t get me wrong, I’m not going as far as Justice Scalia — who, based on his remarks during oral argument in the Mojave cross case, contemplates a sect of Jewish war dead who would be more than happy to be buried under a Christian cross.

I’m just saying that if a religious symbol can be “secularized” at all, isn’t the cross pretty much already there when it comes to memorializing dead people? The Tenth Circuit distinguishes between a cross and a Christmas tree. That seems a little arbitrary.

Maybe the distinction holds up in the houses of Tenth Circuit judges, but in my house, the Christmas tree is most definitely a religious symbol. I believe that Jesus Christ transubstantiates into a fine Douglas fir sometime after Thanksgiving. Being Catholic, I have to eat my Lord — and so the God-infused tree conveniently sprouts candy canes. It’s a deeply spiritual process. (Sarcasm off.)

You take my point. Whether or not a symbol’s possible religious overtones are endorsed by the government seems like a matter of taste instead of a matter of law. There are all sorts of views religious groups might place on one symbol or another; the government doesn’t necessarily appropriate every wacky idea just because a symbol is used.

And that’s why the Tenth Circuit might be in for a SCOTUS smackdown, according to Eugene Volokh of the Volokh Conspiracy:

[F]ive of the U.S. Supreme Court’s nine members seem likely to disapprove of the endorsement test — Justices Scalia, Kennedy, and Thomas are on the record as opposing the test, and Chief Justice Roberts and Justice Alito seem likely to take the same view. So that might be a reason for the Justices to take the case, which doesn’t have the procedural complexities of this year’s Mojave cross case (Salazar v. Buono). [UPDATE: Note that Justice Kennedy, who has long been on the record as opposing the endorsement test, wrote in Salazar that “The goal of avoiding governmental endorsementdoes not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.” Chief Justice Roberts and Justice Alito joined that opinion.]

For you, the cross could be a deeply religious symbol of God’s dominion over death. For my mother, the cross could be the thing that she climbs up on of every time I haven’t called her for a week. For the government — well, sometimes a cross is just a cross.

What do you guys think of roadside crosses in Utah and Tenth Circuit rebukes thereof? I can’t look at this issue anymore; finding a small sliver of life where I might agree with the right wing of the Court makes me itch.

Tenth Circuit: Utah Highway Crosses Violate Establishment Clause [WSJ Law Blog]
A Possible Endorsement Test Case for the U.S. Supreme Court? [The Volokh Conspiracy]


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