Rivers v. Duncan, 08-4061.

616 F.3d 1145

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

v. 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 American 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 Sheriffs' Association, Amici Curiae.

No. 08-4061.

United States Court of Appeals,Tenth Circuit.

Aug. 18, 2010.

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Background: Atheist organization and individual atheists brought § 1983 against several Utah state officials, alleging defendants violated the Establishment Clause and the Utah Constitution by permitting highway patrol association to erect 12-foot tall memorial crosses on public roadsides. Association was permitted to intervene, and parties cross-moved for summary judgment. The United States District Court for the District of Utah, David Sam, Senior District Judge, 528 F.Supp.2d 1245, granted defendants' motion for summary judgment, and plaintiffs appealed.

Holdings: The Court of Appeals, Ebel, Circuit Judge, held that:

(1) atheists had standing to challenge memorial crosses under First Amendment's Establishment Clause;

(2) highway department association's erection of 12-foot tall permanent memorial crosses on public roadsides was government speech;

(3) state government had plausible secular purpose for allowing association to erect memorial crosses on public roadsides; but

(4) memorial crosses had effect of conveying to reasonable observer that state was endorsing Christianity in violation of First Amendment's Establishment Clause.

Reversed and remanded.

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 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, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

The Utah Highway Patrol Association (“UHPA”), with the permission of Utah state authorities, erected a number of twelve-foot high crosses on public land to memorialize fallen Utah Highway Patrol (“UHP”) troopers. Plaintiffs-Appellants, American Atheists, Inc., a Texas non-profit organization, and three individual members of American Atheists who reside in Utah, challenge the legality of these memorials under the Establishment Clause of the federal constitution and Article I of Utah's constitution. We hold that these memorials have the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion. They therefore violate the Establishment Clause of the federal constitution. In light of this conclusion, we need not reach the separate question of whether these displays also violate Utah's constitution.

I. Background

UHPA, a non-profit organization that supports UHP officers and their families, initiated the memorial project in 1998. The memorials are twelve-foot high crosses with six-foot horizontal cross-bars. The fallen trooper's name, rank, and badge number are printed in large letters on the horizontal cross-bar. Immediately underneath the place where the two bars meet hangs a large (approximately 12? high and 16? wide) depiction of the UHP's official “beehive” symbol. Beneath that are printed the year the trooper died and a small plaque containing a picture of the trooper and some biographical information. ¹

UHPA member and officer Lee Perry and his friend Robert Kirby came up with the idea for these memorials and designed the crosses, which UHPA approved. UHPA asserts that

[t]he purpose of these memorials is fourfold: (1) the memorials stand as a lasting reminder to UHPA members and Utah highway patrol troopers that a fellow trooper gave his life in service to this state; (2) the memorials remind highway drivers that a trooper died in order to make the state safe for all citizens; (3) the memorials honor the trooper and the sacrifice he and his family made for the State of Utah; and (4) encourage safe conduct on the highways.

(Aple. Supp.App. at 3112.) Perry and Kirby determined that “only a cross could effectively convey these weighty messages instantaneously” to motorists driving by a memorial. ( Id. at 3165.) According to Perry, they chose a white Roman or Latin cross because

only a white cross could effectively convey the simultaneous messages of death, honor, remembrance, gratitude, sacrifice, and safety. I determined this because a cross is widely recognized as a memorial for a person's death and especially respect to those who have given their lives to insure the safety and protection of others.

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

Because generally drivers would be passing a memorial at 55-plus miles per hour, the UHPA determined that the cross memorials “needed to prominently communicate all of this instantaneously.” (Aple. Supp.App. at 3165.) Further, to “effectively communicate these messages,” the UHPA sought “to place each cross in a location that was: (1) visible to the public; (2) safe to stop and view; and (3) as close to the actual spot of the trooper's death as possible.” ( Id.)

Before erecting any memorial, the UHPA obtained the consent of the fallen trooper's family. None of these families have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, “[b]ecause [the UHPA] exist[s] to...