If a recent appeals court decision is not overturned by the U.S. Supreme Court, the Christian cross could soon become an unconstitutional symbol -- even in places like Arlington Cemetery, a conservative advocacy group warns.
The case, Davenport v. American Atheists, Inc., “may very well be the most important religious liberty case in decades,” the Family Research Council said.
The case dates to 2005, when an atheist group sued the Utah Highway Patrol and the Utah Transportation Department, arguing that roadside memorial crosses honoring fallen state troopers constitute a state establishment of religion. The memorials are fully funded and maintained by a private organization, the Utah Highway Patrol Association.
In December 2010, the U.S. Court of Appeals for the Tenth Circuit agreed with the atheists and reversed a lower-court ruling. The federal appeals court said that privately funded crosses erected on public land were an unconstitutional state endorsement of Christianity.
“If the Utah crosses are ultimately struck down, it could jeopardize similar memorials honoring other fallen heroes across the nation, including 14 crosses on Colorado’s Storm King Mountain where firefighters lost their lives in a 1994 wildfire,” said the conservative Alliance Defense Fund, which last week filed a petition with the U.S. Supreme Court to uphold the erecting of crosses.
“This is yet another example of how the Establishment Clause has been turned on its head and is now being used by the courts to prohibit the guaranteed ‘free exercise’ of religion,” Tony Perkins, president of the Family Research Council, said of the federal appeals court ruling.
“As one who has served in uniform and has lost friends in the defense of freedom and in the protection of the public, I find it tragic that these freedoms are now at greater risk from our own courts than from the foreign or domestic enemies we've faced. This decision must be reversed,” Perkins added.
FRC said it is helping to coordinate nationwide support for attorneys representing the state of Utah. The effort includes a petition urging the U.S. Supreme Court to take the case.
The Alliance Defense Fund points to an April 2010 Supreme Court ruling that specifically addressed the subject of roadside crosses. In Salazar v. Buono, the court ruled that a cross-shaped veterans’ memorial in California’s Mojave Desert did not have to be removed.
“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” the Supreme Court wrote in Salazar.
“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,” the court said.
The Alliance Defense Fund said the guidance found in Salazar “applies directly” to the Davenport case.”