2010 WL 3239486 - American Atheists vs. Utah Highway Patrol

8/7/2019 2010 WL 3239486 - American Atheists vs. Utah Highway Patrol

1/20

Only the Westlaw citation is currentlyavailable.

United States Court of Appeals,Tenth Circuit.

AMERICAN ATHEISTS, INC., a Texasnon-profit corporation; R. Andrews; S.Clark; and M. Rivers, Plaintiffs-Appel-

lants,v.

Scott T. DUNCAN, Colonel, Superintend-ent of Utah Highway Patrol; Lance Daven-

port, Superintendent, Utah Highway Patrol,in his official capacity; John Njord, Exec-utive Director, Utah Department of Trans-

portation; and F. Keith Stepan, DirectorDivision of Facilities Construction and

Management Department of AdministrativeServices, Defendants-Appellees,

andUtah Highway Patrol Association, Defend-

ant-Intervenor-Appellee.The Unitarian Universalist Association; theUnion for Reform Judaism; the Society for

Humanistic Judaism; the Interfaith Alli-ance; the Hindu American Foundation; the

Anti-Defamation League; Eugene J. Fisher;Americans United for Separation of

Church and State; American Humanist As-sociation; Foundation for Moral Law;

Robert E. Mackey; the American Legion;State of Colorado; State of Kansas; State of

New Mexico; State of Oklahoma; theBecket Fund for Religious Liberty;

Gregory Bell; Curtis Bramble; AllenChristensen; David Clark; Margaret

Dayton; Brad Dee; Dan Eastman; JohnGreiner; Wayne Harper; John Hickman;Lyle Hillyard; Sheldon Killpack; Peter

Knudson; Michael Morley; Wayne Nieder-hauser; Howard Stephenson; Dennis Stow-

ell; Aaron Tilton; John Valentine; Kevin

Vantassell; Carlene Walker; City of SantaFe; Utah Sheriffs' Association, Amici Curi-

ae.No. 08-4061.

Aug. 18, 2010.

Appeal from the United States DistrictCourt for the District of Utah (D.C. No.2:05-CV-00994-DS).Brian M. Barnard of Utah Civil Rights &Liberties Foundation, Inc ., Salt Lake City,UT, for Plaintiffs-Appellants.

Thom D. Roberts, Assistant Utah AttorneyGeneral (Mark L. Shurtleff, Attorney Gen-eral, with him on brief), Salt Lake City,UT, for Defendants-Appellees.

Byron J. Babione of Alliance DefenseFund (Benjamin W. Bull and David R.Sheasby of Alliance Defense Fund, Scotts-dale, AZ, Frank D. Mylar of Mylar LawP.C., Cottonwood Heights, UT, and StevenFitschen of the National Legal Foundation,Virginia Beach, VA, with him on brief),

Scottsdale, AZ, for Defendant-Interven-or-Appellee.

Luke W. Goodrich of the Becket Fund forReligious Liberty, Washington, D.C. (EricC. Rassbach of the Becket Fund for Reli-gious Liberty, Washington, D.C., SteveSix, Attorney General, Topeka, KS, GaryK. King, Attorney General, Santa Fe, NM,W.A. Drew Edmondson, Attorney General,Oklahoma City, OK, John W. Suthers, At-torney General, Denver, CO, Daniel D.Domenico, Solicitor General, Denver, CO,and Geoffrey N. Blue, Deputy AttorneyGeneral, Denver, CO, with him on thebrief) for Amici Curiae, the States of Col-orado, Kansas, New Mexico, and Ok-lahoma, and the Becket Fund for Religious

Page 1--- F.3d ----, 2010 WL 3239486 (C.A.10 (Utah))(Cite as: 2010 WL 3239486 (C.A.10 (Utah)))

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


2/20

Liberty, in support of Defendants-Ap-pellees.

Robert Ritter of Appignani Humanist Legal

Center, American Humanist Association,Washington, D.C., filed an amici curiaebrief for American Humanist Association,Society for Humanistic Judaism, and Unit-arian Universalist Association, in supportof Plaintiffs-Appellants.

Evan M. Tager and David M. Gossett ofMayer Brown LLP, Washington, D.C., andBrian M. Willen of Mayer Brown LLP,New York, NY, Steven M. Freeman,Steven C. Sheinberg, and Michelle N.Deutchman of Anti-Defamation League,New York, NY, Mark J. Pelavin of Unionfor Reform Judaism, Washington, D.C.,Ayesha N. Khan and Richard B. Katskee ofAmericans United for Separation ofChurch and State, Washington, D.C., andSuhag A. Shukla of Hindu AmericanFoundation, Kensington, MD, filed anamici curiae brief for Americans United forSeparation of Church and State, the Anti-Defamation League, the Hindu American

Foundation, the Interfaith Alliance, theUnion for Reform Judaism, and Dr. EugeneFisher, in support of Plaintiffs-Appellants.

Roy S. Moore, John A. Eidsmoe, and Ben-jamin D. DuPr for Foundation for MoralLaw, Montgomery, AL, filed an amicuscuriae brief for Foundation for Moral Law,in support of Defendants-Appellees.

Michael A. Sink of Perkins Coie LLP,Denver, CO, filed an amicus curiae brief

for Robert E. Mackey, in support of De-fendants-Appellees.

John Ansbro of Orrick, Herrington, &Sutcliffe LLP, New York, NY, filed anamicus curiae brief for the American Le-gion, in support of Defendants-Appellees.

Chad N. Boudreaux and Adam J. White ofBaker Botts, LLP, Washington, D.C., filedan amici curiae brief on behalf of GregoryBell, Curtis Bramble, Allen Christensen,David Clark, Margaret Dayton, Brad Dee,Dan Eastman, John Greiner, Wayne Harp-er, John Hickman, Lyle Hillyard, SheldonKillpack, Peter Knudson, Michael Morley,Wayne Niederhauser, Howard Stephenson,Dennis Stowell, Aaron Tilton, JohnValentine, Kevin VanTassell and CarleneWalker (collectively Utah Legislators)and City of Santa Fe, in support of Defend-ants-Appellees.

Kevin T. Snider of Pacific Justice Institute,Sacramento, CA, filed an amicus curiaebrief for Utah Sheriffs' Association, in sup-port of Defendants-Appellees.

Before TACHA, EBEL, and HARTZ, Cir-cuit Judges.

EBEL, Circuit Judge.

*1 The Utah Highway Patrol Association

(UHPA), with the permission of Utahstate authorities, erected a number oftwelve-foot high crosses on public land tomemorialize fallen Utah Highway Patrol(UHP) troopers. Plaintiffs-Appellants,American Atheists, Inc., a Texas non-profitorganization, and three individual membersof American Atheists who reside in Utah,challenge the legality of these memorialsunder the Establishment Clause of the fed-eral constitution and Article I of Utah'sconstitution. We hold that these memorials

have the impermissible effect of conveyingto the reasonable observer the message thatthe State prefers or otherwise endorses acertain religion. They therefore violate theEstablishment Clause of the federal consti-tution. In light of this conclusion, we need




3/20

not reach the separate question of whetherthese displays also violate Utah's constitu-tion.

I. Background

UHPA, a non-profit organization that sup-ports UHP officers and their families, initi-ated the memorial project in 1998. The me-morials are twelve-foot high crosses withsix-foot horizontal cross-bars. The fallentrooper's name, rank, and badge numberare printed in large letters on the horizontalcross-bar. Immediately underneath theplace where the two bars meet hangs a

large (approximately 12" high and 16"wide) depiction of the UHP's officialbeehive symbol. Beneath that are printedthe year the trooper died and a smallplaque containing a picture of the trooperand some biographical information.FN1

FN1. Photos of some of these dis-plays are attached to this opinion.

UHPA member and officer Lee Perry andhis friend Robert Kirby came up with the

idea for these memorials and designed thecrosses, which UHPA approved. UHPA as-serts that

[t]he purpose of these memorials isfourfold: (1) the memorials stand as alasting reminder to UHPA members andUtah highway patrol troopers that a fel-low trooper gave his life in service to thisstate; (2) the memorials remind highwaydrivers that a trooper died in order tomake the state safe for all citizens; (3) the

memorials honor the trooper and the sac-rifice he and his family made for theState of Utah; and (4) encourage safeconduct on the highways.

(Aple. Supp.App. at 3112.) Perry andKirby determined that only a cross could

effectively convey these weighty messagesinstantaneously to motorists driving by amemorial. (Id. at 3165.) According toPerry, they chose a white Roman or Latincross because

only a white cross could effectively con-vey the simultaneous messages of death,honor, remembrance, gratitude, sacrifice,and safety. I determined this because across is widely recognized as a memorialfor a person's death and especially re-spect to those who have given their livesto insure the safety and protection of oth-ers.

(Aplt.App. at 420.) Moreover, a cross,near the highway, with the inscriptions,symbols and plaques mentioned above,conveys the unmistakable message that aUtah Highway Patrolman died near thisspot while serving the people of Utah. (Id.at 423.)

*2 Because generally drivers would bepassing a memorial at 55-plus miles perhour, the UHPA determined that the crossmemorials needed to prominently commu-

nicate all of this instantaneously. (Aple.Supp.App. at 3165.) Further, toeffectively communicate these messages,the UHPA sought to place each cross in alocation that was: (1) visible to the public;(2) safe to stop and view; and (3) as closeto the actual spot of the trooper's death aspossible. (Id.)

Before erecting any memorial, the UHPAobtained the consent of the fallen trooper'sfamily. None of these families have ever

objected to the use of the cross as a me-morial or requested that the UHPA me-morialize their loved one using a differentsymbol. However, [b]ecause [the UHPA]exist[s] to serve family members of high-way patrolmen, the UHPA would provideanother memorial symbol if requested by




4/20

the family. FN2 (Aplt.App. at 1869.)

FN2. Notwithstanding the UHPA'sposition, the State Defendants, in

oral argument before the districtcourt and in their briefs and argu-ment before us, asserted that theywould not allow any change in thememorial, whether to accommodateother faiths or otherwise.

UHPA erected its first memorial cross in1998 on private property located approxim-ately fifty feet from a state highway. Later,UHPA obtained permission from the Stateof Utah to erect additional memorialcrosses on public property, including therights-of-way adjacent to the State's roads,roadside rest areas, and the lawn outside aUHP office in Salt Lake County.FN3 Inpermitting the memorials, however, theState has, on at least one occasion, ex-pressly noted that it neither approves ordisapproves the memorial marker. (Id. at2303.)

FN3. A photo depicting the lawn

outside this UHP office, where allof one and part of the other of thesetwo memorial crosses are visible, isattached to this opinion.

Between 1998 and 2003, the UHPA erecteda total of thirteen memorials. The memori-als are all privately funded; UHPA retainsownership of the memorials and maintainsthem, while the State continues to own andcontrol the state land on which some of thememorials are located. Local businesses

and Boy Scout troops have aided theUHPA in funding, building and maintain-ing the memorial crosses.

II. This litigation

Plaintiffs brought this suit under 42 U.S.C.

1983 and Article I of the Utah Constitu-tion against several state employees whowere responsible for authorizing the UHPAto incorporate the UHP logo on the me-morial crosses and to place of some ofthese crosses on state land.FN4 AlthoughPlaintiffs initially alleged violations ofboth the establishment and free expres-sion clauses of these constitutions,Plaintiffs later dismissed their free expres-sion claims. Based upon the alleged estab-lishment clause violations, Plaintiffs seek,as relief, $1 in nominal damages, an in-junction ordering the removal of these me-morial crosses from state property, an in-

junction ordering that the UHP insignia beremoved from all UHPA memorial crosses,a declaration that these memorial crosses'presence on state property violatesPlaintiffs' constitutional rights, a declara-tion that it is a constitutional violation toallow the UHP insignia to be placed onthese memorial crosses, and attorneys' fees.The district court allowed UHPA to inter-vene as a party-defendant.

FN4. UHPA asserts that federal

courts do not have subject matterjurisdiction to consider Establish-ment Clause claims asserted under42 U.S.C. 1983. This court,however, has previously rejectedthat argument. See Green v. HaskellCounty Bd. of Comm'rs, 568 F.3d784, 788 n. 1 (10th Cir.2009), cert.denied, 130 S.Ct. 1687 (2010).

Upon the parties' cross-motions for sum-mary judgment, the district court denied

Plaintiffs' motions and granted summaryjudgment for all Defendants, holding thatthese memorial crosses did not violate thefederal or state constitution. See AmericanAtheists, Inc. v. Duncan, 528 F.Supp.2d1245 (D.Utah 2007). Plaintiffs timely ap-




5/20

pealed that decision. We have jurisdictionto consider this appeal pursuant to 28U.S.C. 1291.FN5 See Green, 568 F.3d at788.

FN5. This court delayed issuing thisopinion, awaiting the SupremeCourt's decision in Salazar v.Buono, 130 S.Ct. 1803 (2010).Buono initially involved an Estab-lishment Clause challenge to privatecitizens' erecting a white cross onfederal land as a war memorial. Seeid. at 1811-12. The Ninth Circuitheld that violated the Establishment

Clause, a decision the defendantsdid not appeal. See id. at 1812-13.The Supreme Court, thus, did notaddress the merits of the Establish-ment Clause claim, but instead ad-dressed a later procedural develop-ment, considering, instead, theplaintiff's attempt to enforce thejudgment he obtained against thedisplay of the cross on public land,in light of the government's sub-sequent transfer of the land at issue

to private concerns. See id. at1811-13, 1815-16 (Kennedy, J.,joined by Roberts, C.J., and Alito,J); id. at 1824-25 (Scalia, J, joinedby Thomas, J., concurring in thejudgment); id. at 1828 (Stevens, J,joined by Ginsburg and Sotomayor,J., dissenting); id. at 1842-43(Breyer, J., dissenting). The Courtupheld the land transfer against theplaintiff's challenge. See id. at 1811(Kennedy, J., joined by Roberts,C.J., and Alito, J); id. at 1824-25(Scalia, J, joined by Thomas, J.,concurring in the judgment).

III. Analysis

A. Standing

*3 As a threshold matter, we must determ-ine whether Plaintiffs have Article III

standing to bring this case. See O'Connorv. Washburn Univ., 416 F.3d 1216, 1222(10th Cir.2005). The district court held thatPlaintiffs had standing because they haveexperienced direct and unwelcome contactwith the memorial crosses at issue in thiscase .... [and] would have to alter theircommutes in order to avoid contact withthe memorials. American Atheists, 528F.Supp.2d at 1251. We review the ques-tion of whether a plaintiff has constitution-

al standing de novo. Green, 568 F.3d at792.

To demonstrate standing, a plaintiff mustallege actual or threatened personal injury,fairly traceable to the defendant's unlawfulconduct and likely to be redressed by a fa-vorable decision of the court. Foremasterv. City of St. George, 882 F.2d 1485, 1487(10th Cir.1989). In Establishment Clausecases, [a]llegations of personal contactwith a state-sponsored image suffice to

demonstrate this kind of direct injury.O'Connor, 416 F.3d at 1223.

Here, the individual named plaintiffs allegeto have had direct personal and unwel-come contact with the crosses. (Aplt.App.at 587, 596, and 682.) Under O'Connor,416 F.3d at 1223, these allegations estab-lish standing. See also Weinbaum v. City ofLas Cruces, 541 F.3d 1017, 1028-29 (10thCir.2008). Mr. Andrews, one of the namedplaintiffs, also stated that he has

occasionally altered [his] travel route or[has] not stopped at a particular rest stop toavoid contact with the crosses. (Aplt.App.at 596.) Mr. Andrews's allegation that hewas forced to alter [his] behavior to avoidcontact with the display, although not ne-cessary for standing, further support[s] this




6/20


7/20

1125 (2009).

In Pleasant Grove City, the Supreme Courtheld that [j]ust as government-commis-

sioned and government-financed monu-ments speak for the government, so doprivately financed and donated monumentsthat the government accepts and displays tothe public on government land. Id. at1133. Thus, the Court concluded, as ageneral matter, [the Free Speech Clause's]forum analysis simply does not apply to theinstallation of permanent monuments onpublic property. Id. at 1138.

As permanent monuments erected on pub-lic land,FN7 the cross memorials at issuein this case fall squarely within the rulepronounced by the Court in Pleasant GroveCity and, therefore, must be analyzed notas private speech, but as governmentspeech-the scope and content of which isrestrained, inter alia, by the EstablishmentClause. See id. at 1131-32; see also Green,568 F.3d at 797 n. 8.

FN7. Although it appears that at

least one memorial is located onprivate land, the UHPA does notbase its argument on that fact.

Both at oral argument and in a letter sub-mitted pursuant to Fed. R.App. P. 28(j), thestate amici and the Becket Fund for Reli-gious Liberty attempt to distinguish thiscase from Pleasant Grove City, arguingthat even in light of the Court's opinion inPleasant Grove City, the displays at issuein this case should be treated as private

speech. They argue that Pleasant GroveCity can be distinguished from our case inthree ways: (1) in Pleasant Grove City, thecity took ownership of the displays at is-sue, while in this case, the UHPA has re-tained ownership of the memorial crosses;(2) Utah has distanced itself from the mes-

sage conveyed in these displays by issuinga statement that the Utah Department ofTransportation neither approves or disap-proves the memorial marker (Aplt.App. at2303); and (3) unlike the displays at issuein Pleasant Grove City, these displays arenot really permanent because both Utahand the UHPA retain the right to removethe display at any time. These distinctionsare unpersuasive.

The fact that the UHPA retains ownershipover these displays does not materially af-fect our analysis of whether the displays atissue in this case constitute government

speech. In Pleasant Grove City, the Su-preme Court noted that the city had takenownership of most of the monuments inthe Park. 129 S.Ct. at 1134 (emphasis ad-ded). However, the Court gave no indica-tion that only those monuments which thecity actually owned constituted governmentspeech. To the contrary, the Court stronglyimplied that all the monuments in that parkwere government speech, and further indic-ated that, in the vast majority of cases, apermanent monument on public land will

be considered government speech. Id. at1138. The fact that the Court thought all ofthe monuments in that park were govern-ment speech is perhaps best illustrated bythe Court's choice of an example of a per-manent monument on public land thatwould not be government speech: amonument on which all the residents ...could place the name of a person to behonored or some other private message.Id. The Court's choice to use a hypotheticalexample, and not just to point to some ofthe memorials in the park at issue thatmight be privately owned in that case in-dicates that the Court considered all themonuments in that park to be governmentspeech. Thus, the fact that the UHPA, notUtah, owns the memorial crosses does not




8/20

affect our determination of whether theyare government speech.

*5 Similarly, Utah's attempt to distance it-

self from the message conveyed by thesememorial crosses, by stating that it neitherapproves or disapproves them, falls flatin light of the Supreme Court's discussionin Pleasant Grove City. In Pleasant GroveCity, the Court explicitly rejected the re-spondent's argument that, in order for amonument to constitute governmentspeech, the state must formally adopt themessage conveyed by the display. TheCourt noted that the City's decision to dis-

play that permanent monument on its prop-erty provided a more dramatic form of ad-option than the sort of formal endorsementthat respondent would demand.... Id. at1134. Conversely, the government's actionsin this case-allowing these memorialcrosses to be displayed with the officialUHP insignia primarily on public land-cannot be overshadowed by its attempts todistance itself from the message conveyedby these displays.

Finally, we reject the state amici's conten-tion that, because the UHPA and Utah eachretained the right to remove these displays,they are not permanent and, therefore,the Court's decision in Pleasant Grove Citydoes not cover this case. This project beganmore than ten years ago, and there is noevidence that any of the memorial crosseserected since that time have been removed.We think that is permanent enough to con-stitute government speech. See id. at 1138(contrasting the permanent displays at is-

sue in that case with the temporary six-teen-day display at issue in Capitol SquareReview and Advisory Board v. Pinette, 515U.S. 753 (1995)).FN8

FN8. At oral argument, the stateamici also argued that this case is

distinguishable from PleasantGrove City because the memorialsin this case were erected in placeslike the sides of the road, wherespace is less scarce than in publicparks. We also find this distinctionunpersuasive. Surely, the memorialsplaced in front of the UHP officeare on land that is no less scarcethan the land in most parks. Further,as the record in this case demon-strates, the State tightly controls thedisplays placed on the rights-of-waynear its roads and, although thoserights-of-way may cover a larger

geographic area than the state'sparks (an allegation we are unwill-ing to accept on the amici's say so),safety concerns and statutes like thefederal Highway Beautification Act,23 U.S.C. 131, severely limit thearea where memorials or othermonuments could be displayed.

D. Federal Establishment Clause claim

1. Standard of ReviewThis court reviews de novo a districtcourt's decision in a First Amendment case,O'Connor, 416 F.3d at 1223; Snyder v.Murray City Corp., 159 F.3d 1227, 1230 n.7 (10th Cir.1998) (en banc), and under-takes an independent examination of thewhole record. O'Connor, 416 F.3d at1223; see also Weinbaum, 541 F.3d at1029 (We review de novo a district court'sfindings of constitutional fact and its ulti-

mate conclusions regarding a First Amend-ment challenge.) (internal citations andquotations omitted). More specifically, inEstablishment Clause cases, we consider adistrict court's findings on each part of theLemon[ v. Kurtzman, 403 U.S. 602 (1971)] test to be constitutional facts' that we




9/20

review de novo. Green, 568 F.3d at 795-96(quoting Robinson v. City of Edmond, 68F.3d 1226, 1230 n. 7 (10th Cir.1995)).Where, as here, the district court grantedsummary judgment for Defendants, wemust ensure that there is no genuine issueas to any material fact and that[Defendants are] entitled to judgment as amatter of law. Weinbaum, 541 F.3d at1029 (quoting Fed.R.Civ.P. 56(c)). In sodoing, this court view[s] the evidence anddraw[s] reasonable inferences therefrom inthe light most favorable to the nonmovingparty. Grace United Methodist Church v.City of Cheyenne, 451 F.3d 643, 649 (10th

Cir.2006) (quoting Keys Youth Servs., Inc.v. City of Olathe, 248 F.3d 1267, 1270(10th Cir.2001)).

2. The Lemon/Endorsement Test

*6 The first clause of the First Amend-ment provides, Congress shall make nolaw respecting an establishment of reli-gion.... U .S. Const. amend. I. This sub-stantive limitation applies also to the

legislative power of the States and theirpolitical subdivisions' as a result of theFourteenth Amendment. Weinbaum, 541F.3d at 1029 (quoting Santa Fe Indep. Sch.Dist. v. Doe, 530 U.S. 290, 301 (2000)).The Establishment Clause enshrines theprinciple that government may not act inways that aid one religion, aid all reli-gions, or prefer one religion over another. Id. (quoting Snyder, 159 F.3d at 1230);see also County of Allegheny v. Am. CivilLiberties Union, 492 U.S. 573, 590 (1989)

(stating that the Establishment Clause guar-antees religious liberty and equality tothe infidel, the atheist, or the adherent of anon-Christian faith such as Islam or Juda-ism ) (quoting Wallace v. Jaffree, 472U.S. 38, 52 (1985)). This concept is not,however, as simple as it may sound, and

courts have struggled mightily to articulatewhen government action has crossed theconstitutional line. See Bauchman ex. rel.Bauchman v. W. High Sch., 132 F.3d 542,551 (10th Cir.1997) (noting the SupremeCourt's failure to prescribe a general ana-lytic framework within which to evaluateEstablishment Clause claims, and thatmany believe the Court's modern Estab-lishment Clause jurisprudence is in hope-less disarray) (citation and quotation omit-ted).

Although the Supreme Court is sharply di-vided on the standard governing Establish-

ment Clause cases, see Green, 568 F.3d at797 n. 8 (discussing the confusion gener-ated by the Supreme Court's decision inVan Orden v. Perry, 545 U.S. 677 (2005)),this court has recently affirmed that thetouchstone for Establishment Clause ana-lysis remains the tripartite test set out inLemon. Green, 568 F.3d at 796 (quotingWeinbaum, 541 F.3d at 1030); see alsoGonzales v. N. Tp. of Lake County, 4 F.3d1412, 1417-18 (7th Cir.1993) (Althoughthe test is much maligned, the Supreme

Court recently reminded us that Lemon iscontrolling precedent and should be theframework used by courts when reviewingEstablishment Clause challenges.).

The Court in Lemon established three gen-eral tests to determine whether a state hasviolated the principles protected by the Es-tablishment Clause: First, the statute musthave a secular legislative purpose; second,its principal or primary effect must be onethat neither advances nor inhibits religion;

finally, the statute must not foster an ex-cessive government entanglement with reli-gion. Lemon, 403 U.S. at 612-13(citations and quotations omitted). If any ofthese tests are violated, the state practicewill be deemed unconstitutional. See




10/20

Green, 568 F.3d at 797-98 (A govern-mental action violates the EstablishmentClause if it fails to satisfy any of threeprongs of the Lemon test.) (emphasis inoriginal). On appeal, Plaintiffs argue thatDefendants have violated the first andsecond Lemon tests.

*7 Addressing the first and second Lemontests, [t]his court interpret [s] the purposeand effect prongs of Lemon in light ofJustice O'Connor's endorsement test. Weinbaum, 541 F.3d at 1030 (quotingO'Connor, 416 F.3d at 1224); see alsoBauchman, 132 F.3d at 552 (Justice

O'Connor's endorsement test is nowwidely accepted as the controlling analytic-al framework for evaluating EstablishmentClause claims.). Under that test, [t]hepurpose prong of the Lemon test askswhether government's actual purpose is toendorse or disapprove of religion. The ef-fect prong asks whether, irrespective ofgovernment's actual purpose, the practiceunder review in fact conveys a message ofendorsement or disapproval. Lynch v.Donnelly, 465 U.S. 668, 690 (1984)

(O'Connor, J., concurring). JusticeO'Connor's modification of the Lemon testmakes our inquiry very case-specific, as itasks this court to examine carefully theparticular context and history of these dis-plays before concluding what effect theywould likely have on the reasonable ob-server.FN9 See County of Allegheny, 492U.S. at 605-08 (defending the fact-specificnature of the Court's Establishment Clausejurisprudence which requires that courtsexamine[ ] the particular contexts inwhich the government employs religioussymbols).

FN9. We reject Plaintiffs' argumentthat any time government conductinvolves the use of a Latin cross,

there is an Establishment Clause vi-olation.

3. Plaintiffs Have Failed to Establish a Vi-olation of the Purpose Prong of the LemonTest

The question presented by the first prongof the Lemon test, then, is whether thegovernment conduct was motivated by anintent to endorse religion. Weinbaum, 541F.3d at 1030. In deciding whether thegovernment's purpose was improper, acourt must view the conduct through theeyes of an objective observer, one who

takes account of the traditional externalsigns that show up in the text, legislativehistory, and implementation of the statute,or comparable official act. Id. at 1031(quotations omitted). We will not lightlyattribute unconstitutional motives to thegovernment, particularly where we can dis-cern a plausible secular purpose. Id.(quotation, alteration omitted).

Here, we can discern a plausible secularpurpose. Considering first the evidence ofthe UHPA's motivation, that organizationhas, throughout the course of this project,consistently asserted that its intent in erect-ing these memorials is only secular: to hon-or fallen troopers and to promote safety onthe State's highways. The secular nature ofthe UHPA motive is bolstered by the factthat the memorials were designed by twoindividuals who are members of the Mor-mon faith, the Church of Jesus Christ ofLatter Saints (LDS Church), a religion

that does not use the cross as a religioussymbol. These men explained that theywere inspired to use the Latin cross for thefallen trooper memorials because of thepresence of such crosses in militarycemeteries, which honor fallen servicemembers for their sacrifice, and roadside




11/20

memorials found where traffic fatalitieshave occurred. Plaintiffs are unable topoint to any evidence suggesting that theUHPA's motive is other than secular.

*8 Nevertheless, the focus of this firstLemon test is on the government's purpose,and not that of a private actor. See Green,568 F.3d at 800 n. 10. But in this case theevidence supports our attributing theUHPA's motivation to the State Defend-ants. In allowing the UHPA to use the UHPinsignia on the memorial crosses and ingiving UHPA permission to place some ofthose crosses on public land, state officials

accepted the UHPA's assertion of itsmotives and further acknowledged supportfor the UHPA's intent. Plaintiffs havefailed to present any evidence that, to thecontrary, suggested that the State Defend-ants' motivation was different than that ex-pressed by UHPA. FN10

FN10. Plaintiffs argue that the StateDefendants failed to present anyevidence of their actual motive inpermitting UHPA to use the UHP

insignia and to place some of thememorials on public land. ButPlaintiffs bear the burden of prov-ing that the State Defendants haveviolated the Establishment Clause.See Brooks v. City of Oak Ridge,222 F.3d 259, 265 n. 4 (6thCir.2000).

Furthermore, in light of this evidence, thereis no reason to conclude that the Defend-ants' proffered secular explanations were a

sham. See Weinbaum, 541 F.3d at 1031(Unless the secular justification is asham or is secondary to a religious pur-pose, we defer to the government's pro-fessed purpose for using the symbol.)(citation omitted). Nor can we say that thesecular purpose advanced by Defendants is

so implausible that they must have actuallybeen motivated by a religious purpose,even if there is no direct evidence of such apurpose. Cf. Gilfillan v. City of Phil-adelphia, 637 F.2d 924, 930 (3rd Cir.1980)(holding that Philadelphia's decision tobuild a massive stage adorned with a thirty-six-foot cross in preparation for the Pope'svisit violated the purpose prong of the Es-tablishment Clause despite the city's claimthat its purpose in building this structurewas for public relations, not to endorse areligion). Therefore, we uphold the districtcourt's determination that the State Defend-ants did not violate Lemon's first test by

acting with the impermissible motive ofendorsing or favoring religion.

4. UHPA's Memorial Crosses Violate theEffect Prong of the Lemon/EndorsementTest

Next, we consider whether the State De-fendants violated the second Lemon test.The Establishment Clause mandate[s]governmental neutrality between religion

and religion, and between religion and non-religion. Weinbaum, 541 F.3d at 1029 n.13 (quoting O'Connor, 416 F.3d at 1223).Thus, this court recently observed that

[g]overnments may not mak[e] adher-ence to a religion relevant in any way toa person's standing in the political com-munity. County of Allegheny v. Am.Civil Liberties Union Greater PittsburghChapter, 492 U.S. 573, 594 (1989)(quoting Lynch, 465 U.S. at 687

(O'Connor, J., concurring)). And actionswhich have the effect of communicatinggovernmental endorsement or disapprov-al, whether intentionally or unintention-ally, ... make religion relevant, in realityor public perception, to status in thepolitical community. Lynch, 465 U.S. at




12/20

692 (O'Connor, J., concurring).

Green, 568 F.3d at 799.

When determining whether a display hasthe impermissible effect of communicat-ing a message of governmental endorse-ment or disapproval of religion, Green,568 F.3d at 799, we

*9 look[ ] through the eyes of an object-ive observer who is aware of the purpose,context, and history of the symbol. Theobjective or reasonable observer is kin tothe fictitious reasonably prudent personof tort law. See Gaylor[v. United States],

74 F.3d [214,] 217 [ (10th Cir.1996) ]. Sowe presume that the court-createdobjective observer is aware of informa-tion not limited to the informationgleaned simply from viewing the chal-lenged display. O'Connor, 416 F.3d at1228 (quoting Wells v. City & County ofDenver, 257 F.3d 1132, 1142-43 (10thCir.2001).

Weinbaum, 541 F.3d at 1031 (emphasis ad-ded). While the reasonable observer ispresumed to know far more than most actu-al members of a given community, id. at1031 n. 16, we do not treat the reasonableobserver as omniscient. Green, 568 F.3dat 800 (citing Bauchman, 132 F.3d at 560);see also Buono v. Norton, 371 F.3d 543,550 (9th Cir.2004) (How much informa-tion we will impute to a reasonable observ-er is unclear.).

a. Purpose

Separate from Lemon's first test, courtsalso consider the Government's purpose inundertaking the challenged conduct as il-lustrative of the effect that that conductconveys. See Weinbaum, 541 F.3d at 1031,1033 (noting that [e]ffects are most often

the manifestation of a motivating pur-pose). As previously stated, in this casethe UHPA's stated purpose in erectingthese memorial crosses, and the State De-fendants' purpose in allowing the UHPA toincorporate the UHP symbol into the me-morials and to place the crosses on publicland, was secular. That fact, however, can-not be dispositive of whether the State hasviolated the effect prong of the Lemon /endorsement test, or this second prongwould be rendered meaningless. Rather,the State's secular purpose is merely oneelement of the larger factual and historicalcontext that we consider in order to de-

termine whether these memorial crosseswould have an impermissible effect on thereasonable observer.

b. Context and history FN11

FN11. Here we deal with contextand history together because thereis no evidence of relevant historicalfactors apart from context informa-tion.

Context can determine the permissibility ofdisplays of religious symbols on publicproperty. See Allegheny County, 492 U.S.at 598 (Under the Court's holding inLynch, the effect of a crche display turnson its setting.); Weinbaum, 541 F.3d at1035 (holding that the city of Las Crucescould use a three-cross symbol as part ofits city seal because the context and historyof that city establishe[d] that the symbol-ism is not religious at all. Rather, it simply

reflects the name of the City which, in turn,reflects a series of secular events that oc-curred near the site of the City.). The sig-nificance of context is perhaps best illus-trated by the Supreme Court's two recentdecisions involving displays of the TenCommandments on public land. In Van Or-




13/20

den v. Perry, 545 U.S. 677 (2005), JusticeBreyer, whose concurrence provided thedeciding vote, concluded that the display ofthe Ten Commandments challenged in thatcase did not violate the EstablishmentClause based largely on his analysis of thecontext of the display, id. at 701 (Breyer,J. concurring), and his conclusion that thecontext suggests that the State intended thedisplay's moral message ... to predomin-ate, id. at 702 (Breyer, J., concurring). Incontrast, the majority of the Court foundthe Decalogue display in McCreary Countyv. American Civil Liberties Union, 545U.S. 844, 881 (2005), to be in violation of

the Establishment Clause because it wasplaced there with a religious purpose asevidenced, in part, by the fact that it wasinitially displayed on its own. Thus, thecontext of a display can determine its legal-ity.

*10 This case involves memorials using aLatin cross, which is unequivocally asymbol of the Christian faith. Weinbaum,541 F.3d at 1022. In light of that, there islittle doubt that Utah would violate the Es-

tablishment Clause if it allowed a privategroup to place a permanent unadornedtwelve-foot cross on public propertywithout any contextual or historical ele-ments that served to secularize the messageconveyed by such a display. See AmericanCivil Liberties Union v. Rabun CountyChamber of Commerce, Inc., 698 F.2d1098, 1100-01 (11th Cir.1983) (holdingthat a lighted thirty-five-foot stand-alonecross could not be displayed in a statepark); see also County of Allegheny, 492U.S. at 599 (using the display of a cross ina central location in a government buildingon Easter as the prototypical example of adisplay that would convey governmentendorsement of Christianity); Buono,371 F.3d at 544-45 (holding that an eight-

foot cross intended as a war memorial andlocated on land owned by the national gov-ernment violated the EstablishmentClause); cf. Trunk v. City of San Diego,568 F.Supp.2d 1199, 1202 (S.D.Cal.2008)(holding that a cross that had become along-standing landmark of the city and wasonly one part of a larger war memorialcould be maintained on federal land). Thus,these displays of the preeminent symbolof Christianity, Buono, 371 F.3d at 545(citation and quotation omitted), can onlybe allowed if their context or history avoidthe conveyance of a message of govern-mental endorsement of religion.

Here, we conclude that the cross memorialswould convey to a reasonable observer thatthe state of Utah is endorsing Christianity.The memorials use the preeminent symbolof Christianity, and they do so standingalone (as opposed to it being part of somesort of display involving other symbols).That cross conspicuously bears the imprim-atur of a state entity, the UHP, and is foundprimarily on public land.FN12

FN12. The record indicates that atleast one, and perhaps several, ofthese memorials are located onprivate land near a state highway.That fact does not change our ana-lysis, however, because thosecrosses, even though on privateland, still bear the UHP insignia,which UHPA was authorized byUHP to use.

The fact that the cross includes biographic-

al information about the fallen trooper doesnot diminish the governmental message en-dorsing Christianity. This is especially truebecause a motorist driving by one of thememorial crosses at 55-plus miles per hourmay not notice, and certainly would not fo-cus on, the biographical information. The




14/20

motorist, however, is bound to notice thepreeminent symbol of Christianity and theUHP insignia, linking the State to that reli-gious sign.

Moreover, the fact that all of the fallenUHP troopers are memorialized with aChristian symbol conveys the message thatthere is some connection between the UHPand Christianity. This may lead the reason-able observer to fear that Christians arelikely to receive preferential treatmentfrom the UHP-both in their hiring practicesand, more generally, in the treatment thatpeople may expect to receive on Utah's

highways.

FN13

The reasonable observer'sfear of unequal treatment would likely becompounded by the fact that these memori-als carry the same symbol that appears onUHP patrol vehicles. See Friedman v. Bd.of County Comm'rs of Bernalillo County,781 F.2d 777, 778, 782 (10th Cir.1985)(holding that a city's seal bearing, amongother things, a latin cross and the Spanishmotto, CON ESTA VENCEMOS' [WithThis We Conquer], violated the Estab-lishment Clause in part because [a] person

approached by officers leaving a patrol caremblazoned with this seal could reasonablyassume that the officers were Christian po-lice.... A follower of any non-Christian re-ligion might well question the officers'ability to provide even-handed treatment.A citizen with no strong religious convic-tion might conclude that secular benefitcould be obtained by becoming a Christi-an.). And the significant size of the crosswould only heighten this concern.

FN13. The connection between theUHP and Christianity is perhapseven more strongly conveyed by thetwo memorial crosses located im-mediately outside the UHP office.We are deeply concerned about the

message these crosses would con-vey to a non-Christian walking bythe UHP office or, even more troub-ling, to a non-Christian walking inagainst his will.

*11 Defendants point to four contextualiz-ing facts that, they argue, render thesecross memorials sufficiently secular to passconstitutional muster: (1) these displays areclearly intended as memorials; (2) they arelocated in areas where similar memorialshave long been displayed; (3) many of thedesigners and producers of these displaysdo not revere the cross as a symbol of their

faith; and (4) a majority of Utahns do notrevere the cross as a symbol of their faith.Although we agree that some of these con-textual elements may help reduce the mes-sage of religious endorsement conveyed bythese displays, we think that these displaysnonetheless have the impermissible effectof conveying to the reasonable observerthat the State prefers or otherwise endorsesChristianity.

i. These Displays are Clearly Intended asMemorials

Defendants argue that the placement ofthese displays, in combination with thetroopers' names emblazoned on the crossesand the biographical information includedin these displays, clearly conveys the mes-sage, instead, that these crosses are de-signed as memorials and, therefore, thatthey do not convey a message of religiousendorsement. We agree that a reasonable

observer would recognize these memorialcrosses as symbols of death. However, wedo not agree that this nullifies their reli-gious sectarian content because a memorialcross is not a generic symbol of death; it isa Christian symbol of death that signifiesor memorializes the death of a Christian.




15/20

The parties agree that a cross was tradition-ally a Christian symbol of death and, des-pite Defendants' assertions to the contrary,there is no evidence in the record that thecross has been universally embraced as amarker for the burial sites of non-Christians or as a memorial for a non-Christian's death. The UHPA acknow-ledges that when it asserts that it wouldhonor the request made by a Jewish statetrooper's family to memorialize him with aStar of David rather than a cross.

The State Defendants point to the use ofcrosses as markers for fallen soldiers as

evidence that the cross has become a secu-lar symbol of death. However, the evidencein the record shows that the militaryprovides soldiers and their families with anumber of different religious symbols thatthey may use on government-issued head-stones or markers. Even in the Americanmilitary cemeteries overseas, which in-clude rows and rows of white crosses,fallen Jewish service members are memori-alized instead with a Star of David. Thus,while the cross may be a common symbol

used in markers and memorials, there is noevidence that it is widely accepted as a sec-ular symbol.

Defendants and some of the amici urge thiscourt to treat memorial crosses in much thesame way as the Supreme Court has treatedChristmas trees and historical displays thatinclude depictions of the Ten Command-ments. These arguments are unpersuasive.Courts have consistently treated Christmasas both a religious and secular holiday, and

many courts have cited Justice Blackmun'sstatement that [a]lthough Christmas treesonce carried religious connotations, todaythey typify the secular celebration ofChristmas . County of Allegheny, 492 U.S.at 616 (Blackmun, J., concurring); see, e.g.,

Adland v. Russ, 307 F.3d 471, 485 (6thCir.2002); American Civil Liberties Unionv. Schundler, 104 F.3d 1435, 1442 (3rdCir.1997). Unlike Christmas, which hasbeen widely embraced as a secular holiday,however, there is no evidence in this casethat the cross has been widely embraced bynon-Christians as a secular symbol ofdeath. We cannot, therefore, conclude thatthe cross-which has a long history as a pre-dominantly religious symbol-conveys inthis context a secular meaning that can bedivorced from its religious significance.Compare Weinbaum, 541 F.3d at 1034(concluding that the city of Las Cruces's

use of a three-cross symbol did not violatethe Establishment Clause at least in partbecause symbols containing multiplecrosses identify many secular businesseswith the Las Cruces community), withKoenik v.. Felton, 190 F.3d 259, 266 n. 7(4th Cir.1999) (rejecting the argument thatEaster, like Christmas, had been embracedas a secular holiday because the record[wa]s devoid of evidence that there was asignificant number of persons for whomthe holiday has no religious significancebut who nonetheless celebrate the occasionin some manner).

*12 Similarly, the memorial crosses at is-sue here cannot be meaningfully comparedto the Ten Commandments display that theSupreme Court upheld in Van Orden. Thedisplay at issue in Van Orden was part of ahistorical presentation of various legal andcultural texts and, in that context, thenonreligious aspects of the tablets' mes-sage [ ] predominate[d] over any religiouspurpose or effect. 545 U.S. at 701 (Breyer,J., concurring). In this case, on the otherhand, the crosses stand alone, adorned withthe state highway patrol insignia and someinformation about the trooper who diedthere.




16/20

ii. Roadside Memorials Often Use the Sym-bol of the Cross and, in that Context,Crosses are not Seen as Religious Symbols

Defendants argue that crosses are a fairlycommon symbol used in roadside memori-als and, in that context, they are seen assecular symbols. However, the mere factthat the cross is a common symbol used inroadside memorials does not mean it is asecular symbol. There is no evidence thatnon-Christians have embraced the use ofcrosses as roadside memorials. Further,there is no evidence that any state has al-lowed memorial crosses to be erected on

public property that, like the memorials atissue in this case, display the official in-signia of a state entity. Finally, even if wemight consider a roadside cross generallyto be a secular symbol of death, the me-morial crosses at issue in this case appearto be much larger than the crosses typicallyfound on the side of public roads. Defend-ants provided a statement from a represent-ative of the Montana American LegionWhite Cross Highway Fatality Marker Pro-gram in support of their claim that roadside

crosses are common, recognizable symbolsof highway fatalities. The cross memorialsat issue here are ten times as large as thosecrosses, which are only between twelveand sixteen inches in height. The massivesize of the crosses displayed on Utah'srights-of-way and public property unmis-takably conveys a message of endorsement,proselytization, and aggrandizement of re-ligion that is far different from the morehumble spirit of small roadside crosses.FN14

FN14. In fact, the massive size ofthese displays is such a deviationfrom the normal memorials of deathseen on the sides of roads that theymay convey to the reasonable ob-

server a Christian religious symbol.Defendants assert the crosses mustbe as large as they are so motoristspassing by at 55-plus miles per hourcan see them. But the size far ex-ceeds the size necessary to be seenfrom the highway. And, not all ofthe memorials are located near ahighway. For example, several arelocated near a UHP office. The sizeof those crosses is particularlytroubling.

iii. The Designers and Producers of TheseDisplays do not Revere the Cross as a Sym-bol of their Faith

Nor are we persuaded of the significance ofthe fact that many of the designers and pro-ducers of these displays do not revere thecross as a symbol of their faith. As the Su-preme Court recently explained, [b]y ac-cepting a privately donated monument andplacing it on [state] property, a [state] en-gages in expressive conduct, but the inten-ded and perceived significance of that con-

duct may not coincide with the thinking ofthe monument's donor or creator. PleasantGrove City, 129 S.Ct. at 1136. Thus, thedesigners' purpose in creating the displaysat issue in this case may not always coin-cide with the displays' likely effect on thereasonable observer. We conclude that isthe case here.

iv. Christians who Revere the Cross are aMinority in Utah

*13 Similarly, the fact that cross-reveringChristians are a minority in Utah does notmean that it is implausible that the State'sactions would be interpreted by the reason-able observer as endorsing that religion. InCounty of Allegheny, the Supreme Court




17/20

held that Pittsburgh did not violate the Es-tablishment Clause by placing a Chan-nukah menorah on its property. However,in a vote-counting exercise, Justice Black-mun explained, in a portion of the opinionwhich no other Justice joined, that his con-clusion that this display cannot be inter-preted as endorsing Judaism alone does notmean, however, that it is implausible, as ageneral matter, for a city like Pittsburgh toendorse a minority faith. 492 U.S. at 616n. 64 (Blackmun, J., concurring). Similarly,in her concurrence, Justice O'Connor notedthat

[r]egardless of the plausibility of a putat-ive governmental purpose, the more im-portant inquiry here is whether the gov-ernmental display of a minority faith's re-ligious symbol could ever reasonably beunderstood to convey a message of en-dorsement of that faith. A menorah stand-ing alone at city hall may well send sucha message to nonadherents, just as in thiscase the crche standing alone at the Al-legheny County Courthouse sends a mes-sage of governmental endorsement of

Christianity....

Id. at 634 (O'Connor, J., concurring). Threeother Justices found that, in fact, the men-orah/Christmas tree display violated theconstitution, concluding that the city's dis-play of Christmas and Hanukkah symbolswas the very kind of double establishmentthat the First Amendment was designed tooutlaw. Id. at 655 (Stevens, J., concurringin part and dissenting in part). Thus, a ma-jority of the Justices in County of Al-legheny determined that a city could viol-ate the Establishment Clause by publiclydisplaying the symbol of a religion whosemembers constituted a mere 12% of thatcity's population. See id. at 616 n. 64(noting that Jews constituted 45,000 of

Pittsburgh's population of 387,000, or ap-proximately 12% of the population)(Blackmun, J., concurring). In this case, theparties agree that cross-revering Christianscomprise approximately 18% of the popu-lation in Utah, which is greater than thepercentage of Jews in Pittsburgh at the timeof the Court's decision in County of Al-legheny. Thus, the fact that most Utahns donot revere the cross as a symbol of theirfaith does not mean that the State cannotviolate the Establishment Clause by con-duct that has the effect of promoting thecross and, thereby, the religious groups thatrevere it.

This appears to be especially true in thiscase because members of the majority LDSChurch may not necessarily share thesame sensitivity to the symbol [of thecross] as a Jewish family. American Athe-ists, 528 F.Supp.2d at 1256 n. 6. Althoughthe evidence indicates that LDS Churchmembers do not use the cross as a symbolof their religion, they do remember withreverence the suffering of the Savior.(Aplt.App. at 2241.) And, in any event,

there are many cross-revering Christiansand many non-Christians for whom the Ro-man cross has an unmistakable Christianmeaning.

*14 These factors that Defendants point toas secularizing the memorials do not suffi-ciently diminish the crosses's message ofgovernment's endorsement of Christianitythat would be conveyed to a reasonable ob-server. Therefore, the memorials violatethe Establishment Clause.

IV. Conclusion

Accordingly, we REVERSE the districtcourt's decision granting summary judg-ment for Defendants, and REMAND the




18/20

case to the district court to enter judgmentfor Plaintiffs consistent with this opinion.




19/20




20/20

C.A.10 (Utah),2010.American Atheists, Inc. v. Duncan--- F.3d ----, 2010 WL 3239486 (C.A.10(Utah))

END OF DOCUMENT


Documents

2010 WL 3239486 - American Atheists vs. Utah Highway Patrol