Utah Attorney General Mark Shurtleff asked the U.S. Supreme Court on Wednesday to intervene in a case deciding the constitutionality of memorial crosses placed on various state properties to honor fallen state troopers.
Shurtleff requested that the high court issue an opinion on the case after the 10th Circuit Court of Appeals ruled that the 14 crosses bearing the name of a fallen state trooper violated the U. S. Constitution. Prior to the 10th Circuit Court’s ruling, the high court had upheld the cross as a non-religious display for fallen employees.
“With two simple lines the highway crosses remind us of the ultimate sacrifice made by troopers while trying to protect us,” said Shurtleff in a statement. “The crosses only establish a trooper died in the line of duty.”
The lawsuit against the 12-foot crosses was initially launched by American Atheists, Inc. in 2005. The group sued the Utah Highway Patrol Association, arguing that the cross is a universal symbol of Christianity and that the crosses’ placement on government property violated the First Amendment's "establishment of religion" clause.
Lt. Lee Perry, who helped spearhead the project, told Newsweek in 2007, "It was never our intent to do anything religious. It was strictly to honor their memory."
State Assistant Attorney General Thom Roberts also argued in 2007 that 11 of the 14 honored troopers were Mormons. Roberts argued that they do not use the cross as a symbol of their beliefs.
A federal court ruled in 2007 that the crosses were constitutional as it did in 2006. The 10th Circuit Court of Appeals ruled against the crosses in 2010.
AA’s attorney, Brian Barnard, objected to Shurtleff’s request. Barnard told local television station ABC 4 on Wednesday, "We think the 10th Circuit Court of Appeals was right. We do not think the United States Supreme Court needs to review it at this time."
Former Texas Solicitor General Ted Cruz supports Shurtleff’s decision and has agreed to represent Utah in the case pro bono. Cruz, who became a state Solicitor General at age 31, is considered one of the nation’s foremost experts on religion establishment cases. He has argued nine times before the U.S. Supreme Court and authored over 80 U.S. Supreme Court briefs.
In the brief authored on Utah’s behalf, Cruz argued that the crosses do not establish a religion because “the passive memorials coerce no one to do anything.”
He also noted in the brief that courts had found cross memorials to be permissible in every other state. Cruz highlighted this inequity, writing, “Thus a driver traveling an interstate through several circuits might observe roadside memorials containing crosses in one State, but a mile down the road, the very same memorials would be deemed unconstitutional.”
Conservative legal firm Alliance Defense Fund praised Shurtleff’s action. “One atheist group’s agenda shouldn’t diminish the sacrifice made by Utah highway patrol officers and their families. We are asking the Supreme Court to allow the families of the fallen to honor their loved ones through these constitutionally permissible memorials,” said ADF Senior Counsel Byron Babione in a statement.
Babione expressed confidence that the U.S. Supreme Court would rule to restore the crosses to their previous placement, citing the guidance issued for a similar memorial in California’s Mojave Desert. While ruling that the memorial cross honoring war veterans can stay, the high court directly mentioned the validity of roadside crosses to honor troopers.
“The Supreme Court recently signaled that individualized memorial crosses honoring fallen troopers simply do not amount to a government establishment of religion,” said Babione. “That guidance applies directly to this case.”
ADF also filed a petition with the Supreme Court, asking it to uphold the constitutionality of the crosses.
The 2011 brief by Shurtleff asks the U.S. Supreme Court to clarify the appropriate tests for establishing or endorsing a religion and whether the memorial crosses in Utah establish a religion.