Friday, August 20, 2010

State Police Cross Memorials Violate Establishment Clause

A three-judge panel of the Tenth Circuit ruled on Wednesday that 12-foot high crosses erected on public land to memorialize fallen Utah Highway Patrol (UHP) officers by the the Utah Highway Patrol Association (UHPA), with permission of state authorities, violated the Establishment Clause.

The crosses include a fallen trooper's name, rank, and badge number and the UHP's official symbol along with the words "Utah Highway Patrol."  Most of the crosses sit on public land alongside state roads, but two of the crosses are located immediately outside the UHP offices.  UHPA erected the crosses with the permission of the fallen officers' families and the state.  The UHPA retained ownership of the crosses, and the state on at least one occasion noted that it "neither approves [n]or disapproves the memorial marker."


The court ruled that the crosses violated the second part of the Lemon test--that their "principal or primary effect must be one that neither advances nor inhibits religion."  The court:

the fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity.  This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP--both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways.  The reasonable observer's fear of unequal treatment would likely be compounded by the fact that these memorials carry the same symbol that appears on UHP patrol vehicles.

Op. at 27-28.

The court rejected the defendant's argument that the crosses were a generic symbol of death; rather, "it is a Christian symbol of death that signifies or memorializes the death of a Christian."  Op. at 29 (emphasis in original).

The court also rejected the defendant's argument that the crosses were private speech and that therefore the Speech Clause, not the Establishment Clause, should govern.  The court held that the crosses were similar to the monuments in Pleasant Grove City v. Summum, the Supreme Court's 2009 case holding that monuments donated to the city by a private organization and displayed by the government on public property constitute government speech not subject to Speech Clause constraints (but still subject to the Establishment Clause).


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We have researched hierarchies for thirty years, and have often used the cross to illustrate practices that undermine our national ideology of equality and fairness.

We would like to offer you some perhaps new perspectives for your discussions of the UHP memorial cross case.

Consistent and Predictable - The Top Represents Everyone

In any hierarchy, the attributes and roles of higher people are acceptable and appropriate for all. As Christianity is on top of our religious hierarchy in the United States:
The exclusive use of crosses in military cemeteries or at places where several people died assumes that a Christian symbol is appropriate to memorialize people of any religion.

If a symbol for a non-Christian religion is used, we assume the person honored followed that particular religion.

If a Jewish symbol were used, we would assume the person to be Jewish, even though we might not assume everyone honored by a cross to be Christian.

Attributes associated with lower people are considered appropriate for only that group of people. Characteristics associated with the lower group of people are often assumed to be inappropriate, even disgusting, for the higher group of people.

If a Christian were memorialized with a Muslim symbol, his or her family would likely protest, even though the same people might think that crosses are fine for all, believing a cross to be a universal symbol.

The Top Represents Everyone - more examples in other hierarchies

In our gender hierarchy, what is appropriate for males is also appropriate for females, but not vice-versa.

Female servers in fancy restaurants wear tuxedo-style uniforms even though it is unacceptable in those restaurants for male servers to wear evening dresses. It’s fine for a woman to wear overalls or business suit with a necktie a man would wear, but how about a man in lace and bows? How many baby boys wear pink?

In our schools, we teach the history of our dominant group telling our children this represents American History.

The “American History” traditionally taught to every student centers around the stories of wealthy able-bodied white males, the military, and wars. There are “special” separate classes for people who want to learn about anyone else — “African American History,” “History of American Indians,” or “Women’s History. ” If we take “Hispanic American History,” we don’t expect to learn “Asian American History.”

Role Reversals Help to Uncover Hierarchies

Role reversals are effective tools for uncovering elusive hierarchies that go undetected behind our assumptions about what's normal and natural. The higher group takes on the role of the lower, while the lower group plays the part usually played by the higher. We imagine the same scene played over again, however this time with roles switched.

In the state of Utah, a Buddist symbol was used to represent the places where state troopers had fallen. Since Buddism is on top of the religious hierarchy in the United States, it is considered to represent everyone.

Posted by: Harriet Childress | Aug 23, 2010 4:57:22 PM

Violate Establishment Clause of State Police Cross Memorials This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment.

Posted by: Memorial | Jun 23, 2011 11:49:16 PM

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