09/16/2010

Utah troopers want rehearing of highway cross case

An August ruling found that the giant crosses, which bear the shield of the patrol, leave the "reasonable observer" with the impression that the state and the police endorse Christianity and that Christians would receive preferential treatment from UHP troopers

By Jennifer Dobner
Associated Press

SALT LAKE CITY — The Utah Highway Patrol on Wednesday asked the federal appeals court in Denver to rehear a case involving 14 memorial crosses on Utah highways that had been ruled unconstitutional by an appellate panel.

Attorneys for the UHP, the state Department of Transportation and two other state agencies filed a petition for the rehearing, arguing that the full 10th U.S. Circuit Court of Appeals must decide whether the ruling "erroneously" holds that "private monuments erected on public land with the permission of the government" is government speech.

The patrol wants to leave in place the 12-foot-high white crosses, which were erected by the Utah Highway Patrol Association to memorialize fallen troopers.

In August, a panel of three judges from the 10th Circuit said the crosses were an unconstitutional endorsement of religion. They found that the giant crosses, which bear the shield of the patrol, leave the "reasonable observer" with the impression that the state and the police endorse Christianity and that Christians would receive preferential treatment from UHP troopers.

But the state agencies contend the crosses only serve to remind travelers that troopers have died in the line of duty and to encourage safe driving.

It wasn't immediately clear Wednesday when the court would decide whether to rehear the case.

First erected in 1998, the cross monuments were paid for with private funds raised by the association and erected with the permission of the troopers' families. Nearly all the 14 crosses are on public land.

The Texas-based American Atheists Inc., and three of its Utah members, sued the state of Utah in 2005 over the use of the highway patrol's logo and said the crosses should be removed. The group said the memorials infer that the troopers who died at each location were in fact Christians.

Brian Barnard, who represents the American Atheists, said the petition doesn't raise any new arguments.

"They didn't like the answer they got," Barnard said. "They're hoping that if all of the other judges on the 10th Circuit hear those same arguments, that maybe the result will be different."

Barnard said he anticipates attorneys for the UHP Association will submit a similar rehearing request. The filing deadline is Thursday, he said.

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