Am. Atheists Inc. v. Davenport

637 F.3d 1095

AMERICAN ATHEISTS, INC., a Texas non-profit corporation; R. Andrews; S. Clark; M. Rivers, Plaintiffs–Appellants,

v.Lance DAVENPORT, Superintendent, Utah Highway Patrol; John Njord, Executive Director, Utah Department of Transportation; F. Keith Stepan, Director Division of Facilities Construction and Management Department of Administrative Services, Defendants–Appellees,Scott T. Duncan, Colonel, Superintendent of Utah Highway Patrol; Lance Davenport, Superintendent, Utah Highway Patrol, in his official capacity; John Njord, Executive Director, Utah Department of Transportation; and F. Keith Stepan, Director Division of Facilities Construction and Management Department of Administrative Services, Defendants–Appellees,andUtah Highway Patrol Association, Defendant–Intervenor–Appellee,The Unitarian Universalist Association; The Union for Reform Judaism; The Society for Humanistic Judaism; The Interfaith Alliance; The Hindu Foundation; The Anti–Defamation League; Eugene J. Fisher; Americans United for Separation of Church and State; American Humanist Association; Foundation for Moral Law; Robert E. MacKey; The American Legion; State of Colorado; State of Kansas; State of New Mexico; State of Oklahoma; The Becket Fund for Religious Liberty; Gregory Bell; Curtis Bramble; Allen Christensen; David Clark; Margaret Dayton; Brad Dee; Dan Eastman; John Greiner; Wayne Harper; John Hickman; Lyle Hillyard; Sheldon Killpack; Peter Knudson; Michael Morley; Wayne Niederhauser; Howard Stephenson; Dennis Stowell; Aaron Tilton; John Valentine; Kevin Vantassell; Carlene Walker; City of Santa Fe; Utah Sheriff's Association, Amici Curiae.

No. 08–4061.

United States Court of Appeals, Tenth Circuit.

Dec. 20, 2010.

Brian M. Barnard of Utah Civil Rights & Liberties Foundation, Inc., Salt Lake City, UT, for Plaintiffs–Appellants.Thom D. Roberts, Assistant Utah Attorney General (Mark L. Shurtleff, Attorney General, with him on brief), Salt Lake City, UT, for Defendants–Appellees.Byron J. Babione of Alliance Defense Fund (Benjamin W. Bull and David R. Sheasby of Alliance Defense Fund, Scottsdale, AZ, Frank D. Mylar of Mylar Law P.C., Cottonwood Heights, UT, and Steven Fitschen of The National Legal Foundation, Virginia Beach, VA, with him on brief), Scottsdale, AZ, for Defendant–Intervenor–Appellee.Luke W. Goodrich of The Becket Fund for Religious Liberty, Washington, D.C. (Eric C. Rassbach of The Becket Fund for Religious Liberty, Washington, D.C., Steve Six, Attorney General, Topeka, KS, Gary K. King, Attorney General, Santa Fe, NM, W.A. Drew Edmondson, Attorney General, Oklahoma City, OK, John W. Suthers, Attorney General, Denver, CO, Daniel D. Domenico, Solicitor General, Denver, CO, and Geoffrey N. Blue, Deputy Attorney General, Denver, CO, with him on the brief) for Amici Curiae, the States of Colorado, Kansas, New Mexico, and Oklahoma, and The Becket Fund for Religious Liberty, in support of Defendants–Appellees.Robert V. Ritter of Appignani Humanist Legal Center, American Humanist Association, Washington, D.C., filed an amici curiae brief for American Humanist Association, Society for Humanistic Judaism, and Unitarian Universalist Association, in support of Plaintiffs–Appellants.Evan M. Tager and David M. Gossett of Mayer Brown LLP, Washington, D.C., and Brian 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 Union for Reform Judaism, Washington, D.C., Ayesha N. Khan and Richard B. Katskee of Americans United for Separation of Church and State, Washington, D.C., and Suhag A. Shukla of Hindu American Foundation, Kensington, MD, filed an amici curiae brief for Americans United for Separation of Church and State, The Anti–Defamation League, The Hindu American Foundation, The Interfaith Alliance, The Union for Reform Judaism, and Dr. Eugene Fisher, in support of Plaintiffs–Appellants.Roy S. Moore, John A. Eidsmoe, and Benjamin D. DuPrè for Foundation for Moral Law, Montgomery, AL, filed an amicus curiae 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 Defendants–Appellees.John Ansbro of Orrick, Herrington, & Sutcliffe LLP, New York, NY, filed an amicus curiae brief for The American Legion, in support of Defendants–Appellees.Chad N. Boudreaux and Adam J. White of Baker Botts, LLP, Washington, D.C., filed an amici curiae brief on behalf of Gregory Bell, Curtis Bramble, Allen Christensen, David Clark, Margaret Dayton, Brad Dee, Dan Eastman, John Greiner, Wayne Harper, John Hickman, Lyle Hillyard, Sheldon Killpack, Peter Knudson, Michael Morley, Wayne Niederhauser, Howard Stephenson, Dennis Stowell, Aaron Tilton, John Valentine, Kevin VanTassell and Carlene Walker (collectively “Utah Legislators”) and City of Santa Fe, in support of Defendants–Appellees.Kevin T. Snider of Pacific Justice Institute, Sacramento, CA, filed an amicus curiae brief for Utah Sheriffs' Association, in support of Defendants–Appellees.Before TACHA ^*, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

ORDER

This matter is before the court on defendants/appellees' Petition For Rehearing With Suggestion For Rehearing En Banc. Also before the court is the Utah Highway Patrol Association's Petition For Rehearing En Banc. We also have responses to both petitions from the plaintiffs/appellants.

Upon consideration, the requests for panel rehearing are granted in part. Specifically, the original panel opinion is amended at line 12 of page 29 replacing the word “universally” with the word “widely.” In all other respects, the petition for panel rehearing is denied. A copy of the new panel opinion is attached to this Order.

Both suggestions for rehearing en banc were submitted to all of the judges of the court who are in regular active service and who are not recused in this matter. A poll was requested, and a majority voted to deny the en banc suggestion.

Judges Kelly, O'Brien, Tymkovich and Gorsuch would grant rehearing en banc. Judges Kelly and Gorsuch write separately, and those are attached to this order. Judge Kelly is joined by Judges O'Brien, Tymkovich, and Gorsuch, and Judge Gorsuch is joined by Judge Kelly.

PAUL KELLY, JR., Circuit Judge, dissenting from the denial of rehearing en banc, with whom O'BRIEN, TYMKOVICH, and GORSUCH, Circuit Judges, join.

The court's decision continues a troubling development in our Establishment Clause cases—the use of a “reasonable observer” who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion. See Am. Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th Cir.2010). Despite assurance from the Supreme Court that the Establishment Clause does not require us to “purge from the public sphere all that in any way partakes in the religious,” Van Orden v. Perry, 545 U.S. 677, 699, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring) (citing Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983)), the court's “reasonable observer” seems intent on doing just that. Thus, I respectfully dissent from the denial of rehearing en banc.

In striking down memorial crosses donated by the Utah Highway Patrol Association (“UHPA”) to commemorate fallen troopers, the court erred in several respects. First, the court's analysis begins by effectively presuming that religious symbols on public property are unconstitutional. Such a presumption has no basis in our precedent and is unwarranted. Second, the court's reasonable observer does not sufficiently acknowledge the totality of the memorial crosses' physical appearance, not to mention their context and history. This selective observation leads to the nominally “reasonable” observer's odd conclusion that the UHP is a sort of “Christian police” that favors Christians over non-Christians—a conclusion that has no support in the facts, and seems more based upon the additional facts contained in Friedman v. Bd. of County Comm'rs of Bernalillo County, 781 F.2d 777, 778, 782 (10th Cir.1985) (en banc) than any sort of reality. Third, the court equates the religious nature of the cross with a message of endorsement. Contrary to the court's decision, the Defendants did not bear the impossible burden of proving that Latin crosses are secular symbols. Rather, they needed to show only that the memorial crosses at issue conveyed a message of memorialization, not endorsement.

Background

A brief recitation of the operative facts is necessary. In 1998 the Utah Highway Patrol Association, a private organization that supports Utah Highway Patrol (“UHP”) officers and their families, began a project to memorialize UHP troopers killed in the line of duty. Am. Atheists, 616 F.3d at 1150. The UHPA decided to honor the fallen troopers by placing large, white crosses near the locations of their deaths. Id. at 1150–51. The UHPA chose crosses because in the UHPA's opinion, “only a white cross could effectively convey the simultaneous message[s] of death, honor, remembrance, gratitude, sacrifice, and safety.” Id. at 1151 (internal quotation marks and citation omitted). The crosses are approximately twelve feet tall. Id. at 1150. The deceased officer's name and badge number are painted on the six-foot crossbar in large, black lettering. Id. The crosses also bear the UHP's beehive symbol, the deceased trooper's picture, and a plaque containing the officer's biographical information. Id. The State of Utah permitted the UHPA to erect approximately thirteen crosses on public property, but explicitly stated that it “neither approves or disapproves the memorial marker[s].” Id. at 1151 (internal quotation marks omitted).

In striking down the memorial crosses under the Establishment Clause, the court...