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?
My friend and UCLA Law colleague Eugene Volokh comments:
The practice, the panel held, violated the Establishment Clause because it had the effect of endorsing Christianity. (For pictures of the crosses, which included the names of the troopers, as well as the date of death and the Utah Highway Patrol beehive symbol, see the last three pages of the opinion.)
The circuit has 7 Republican appointees and 3 Democratic appointees among its active judges, but the panel consisted of three Republican appointees, including two in active service. It thus seems quite unlikely that the case will be reheard en banc. But five 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.]
Eugene then launches into an extended "on the other hand," focusing on Scalia, which made my head hurt.
<TONGUE IN CHEEK>I'm waiting for the day somebody tells me to take down the painting of St Thomas More that hangs in my UCLA office (adorned with a rough cross made from a palm leaf I got on Palm Sunday). I assume some atheist will argue that it "may lead the reasonable observer to fear that Christians are likely to receive preferential treatment" from yours truly.</TONGUE IN CHEEK>
