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 …” 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 that 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
Although you refer to the Latin cross as “the preeminent symbol of Christianity,” that has not always been the case.
As I recall, New England’s Puritan founders generally rejected the cross as a symbol that they connected with the Roman Church, and with what the Puritans regarded as idolatry.
The Puritans’ aversion to the cross was indeed so great that Governor John Winthrop recorded in his journal how, on coming to a place marked “Hue’s Cross” because it was there that travelers customarily crossed over a river, “being displeased at the name, in respect that such things might hereafter give the Papists occasion to say, that their religion was first planted in these parts,” he promptly “changed the name, and called it Hue’s Folly.†1 JOHN WINTHROP, WINTHROP’S JOURNAL “HISTORY OF NEW ENGLAND†1630-1649, at 94 (James Kendall Hosmer, ed.; New York: Charles Scribner’s Sons, 1908).
Eric, you correctly point out that the cross is not integral to all Christian sects. Indeed, U.S. District Court Judge David Sam, noting that 57% of Utah residents are Mormon, wrote as one of the stipulated facts: “Neither the Church of Jesus Christ of Latter-day Saints nor its members use the cross as a symbol of their religion or in their religious practices.” He subsequently used these facts to argue that the defendants did not have a religious purpose for using the cross: “It would be unprecedented judicial divination for this court to nevertheless discern that the UHPA directors or state officials were intending to promote those minority [Christian] religions [in Utah] through the use of the cross design.”
The problem with Judge Sam’s logic is that while Mormons do not use the cross as a symbol of their faith, they nevertheless recognize the cross as a Christian symbol and are not offended by it.
I would also note that the U.S. Dept. of Veteran Affairs officially recognizes the Latin cross as the emblem of belief of Christianity. I further submit that if the Latin cross appears on a grave stone at a cemetery, it signifies that a Christian is buried there. To test of this view, I visited a Jewish cemetery earlier this year and, not surprisingly, not a single grave marker had a cross on it.
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