Reversal Likely in 10th Circuit Cross Case

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A Tenth Circuit panel just ordered the removal of 14 crosses memorializing fallen Highway Patrol officers from a Utah roadside.  The court held that these crosses violate the Establishment Clause because they "have the impermissible effect of conveying to the reasonable observer the State endorses a certain religion."

Ah, the endorsement test: Justice O'Connor's proposed means of further convoluting the Supreme Court's hopelessly tangled web of Establishment Clause jurisprudence known as the Lemon test.

The Court adopted the Lemon test almost forty years ago for adjudicating Establishment Clause issues. Lemon v. Kurtzman provides that government action satisfies the Establishment Clause only if it (1) involves a secular purpose; (2) does not have the primary effect of advancing or inhibiting religion; and (3) does not result in "excessive government entanglement" with religion.

Justice O'Connor opined about 25 years ago in a concurring (read: non-binding) opinion that a government endorsement of religion helps determine whether the government has violated Lemon's "secular purpose" prong.

And so, the Tenth Circuit concluded that "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity."

My first response is . . . how does that violate the Establishment Clause? Let's set Supreme Court precedent aside for a second and examine the First Amendment's text. It states that "Congress shall make no law respecting an establishment of religion. . . ." Its underlying principle is that government may not establish religion. Is the State of Utah establishing Christianity by simply allowing the Utah Highway Patrol Association to use its own money to place crosses on public property? I can't imagine how—this does not coerce or intimidate anyone into adopting Christianity, nor does it prevent anyone from practicing another religion (or the lack thereof). In fact, private money pays for the crosses and there is no other demand for usage of the barren roadside space, so it costs the taxpayers nothing.

The inevitable rebuttal is that people of other faiths may feel uncomfortable with the potentiality that the government endorses Christianity (regardless of whether that is the actual case). I'm not unsympathetic to that argument on public policy grounds. However, public policy is the realm of the legislature, not the judiciary. If you have a problem with it, then write a letter to your local legislator. Don't use the judiciary as a tool to effectuate an agenda unsupported by our constitutional text.

However, even if you support the endorsement test, the crosses are still constitutional because a reasonable observer is unlikely to conclude that they constitute a state endorsement of Christianity. When I see a series of white crosses placed alongside a roadside, the image of Christ's crucifixion is not the first thing that enters my mind—the crosses bring to my attention that someone died there. In fact, unless opponents of the memorial advocate the morbid placement of skulls or coffins along the roadside, I cannot think of a more conspicuous symbol of death.

Fortunately, the Supreme Court is likely to clean up this mess. First Amendment expert Eugene Volokh points out that the majority of the Court opposes the endorsement test. Moreover, perennial swing voter Justice Kennedy recently wrote in the Salazar v. Buono opinion that 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."

This strange coincidence seems to make it clear that the endorsement test will soon be thrown to the wayside, and the crosses may ultimately remain in place.