In a split 5-4 vote, the 10th Circuit Court of Appeals denied the defendants/appellees’ request for a rehearing en banc in American Atheists, Inc. v. Davenport, (10th Cir., Dec. 20, 2010). In the JM Center’s opinion, the vote should have been 9-0 against a rehearing inasmuch as the Latin cross is the preeminent symbol of Christianity and its stand-alone display on government property is a clear, obvious and irrefutable violation of the First Amendment.
In August, a 3-judge panel held the message conveyed by the 12-foot high crosses erected by the Utah Highway Patrol Association on state property (with the state’s permission) would be viewed by a reasonable observer as “government’s endorsement of Christianity” and, therefore, the memorials violate the Establishment Clause.
The four dissenters, in an opinion written by Judge Kelly, were dismayed by the panel’s reliance upon “the use of a ‘reasonable observer’ who is increasingly hostile to religious symbol’s in the public square …”Â In a separate dissent, Judge Gorsuch (joined by Judge Kelly) suggested that the majority’s reasonable observer had a “selective and feeble eyesight” because the Court’s observer “has no problem seeing the Utah highway patrol insignia [on the crosses] and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia.”
I would suggest that holding a government’s display of the preeminent religious symbol of the dominant religion violates the Establishment Clause is not a case of being myopic or hostile, but rather of being faithful to the Constitution’s prohibition of against preferring one religion over another, or religion over nonreligion.
If the court’s minority is truly concerned about hostility towards religion, let me suggest thatÂ the Circuit Court sua sponte reverse its decision fourteen years ago in Gaylor v. United States, 74 F.3d 214 (10th Cir. (Colo.), 1996). In Gaylor, the court wrote: “[W]e find that a reasonable observer, aware of the purpose, context, and history of the phrase ‘In God we trust,’ would not consider its use or its reproduction on U.S. currency to be an endorsement of religion.” Really?
To compel Americans to carry and use U.S. currency with “In God we trust” on it is as blatant an endorsement of religion as there can be. Similarly, to compel drivers on Utah roads to bear witness to Utah highway patrol crosses can only be viewed as Christian favoritism. Neither is a permissible accommocation of religion. Both are proscribed by the Constitution.
Long live our Constitution.
Bob Ritter /JM Center