This column by ACRU Senior Legal Analyst Ken Klukowski was published October 31, 2011 on The Washington Examiner website.

The Supreme Court let stand yesterday a lower court decision that is outrageously hostile to common expressions of religious faith, Utah Highway Patrol Association v. American Atheists.

When a state trooper in Utah dies in the line of duty, the Utah Highway Patrol Association (UHPA) — a private organization for troopers and families — erects a roadside cross with the trooper’s name, badge number, date of death, and highway patrol’s logo.

These crosses are erected with the families’ blessing, and all 13 at issue in this case were for troopers of the Mormon faith.

Lawyers for American Atheists, Inc., a radical organization dedicated to eradicating religious influence in American culture, argued that the State of Utah’s permitting UHPA to erect these crosses violates the Establishment Clause, even though the state included a disclaimer that it did not endorse any message in the memorials.

Although the district court sided with Utah, the U.S. Court of Appeals for the 10th Circuit reversed, holding that a cross is a symbol of Christianity, and therefore stand-alone crosses on public land are an unconstitutional endorsement of religion.

Utah Attorney General Mark Shurtleff retained one of the greatest Supreme Court lawyers in the country, former Texas Solicitor General Ted Cruz (currently running for U.S. Senate) to represent the state.

Cruz took the case pro bono, petitioning the Supreme Court to hear this case. Cruz also asked the Court to reconsider whether this case showcases how the Court’s “endorsement test” — first adopted in 1989 — has proven to be unworkable and hostile to religious faith, and that government actions that do not directly proclaim a specific faith only violate the Establishment Clause if they pressure or coerce citizens to participate in or support religion.

Cruz’s petition here was supported by 20 states and 15 members of Congress, as well as groups ranging from the Family Research Council to the American Legion to Mothers Against Drunk Driving (MADD).

As the briefs argued, if applied nationally, the 10th Circuit’s decision would require dismantling Arlington National Cemetery and countless other venerable landmarks.

Yet the Supreme Court opted not to take the case. Justice Clarence Thomas strongly dissented arguing the Court should take the case. These crosses must now come down, and follow-up cases are likely to remove all roadside crosses — such as those supported by MADD — and crosses from all federal, state, and local parks and buildings in the six states comprising the 10th Circuit.

This case presented the High Court with a rare opportunity to come down on the side of an issue where a supermajority of the American people agree. Few Americans object to memorializing those who sacrifice for others, and the common-sense approach here agrees with the Constitution.

We honor those who make the ultimate sacrifice to keep us safe. Not only do such roadside crosses not violate the Constitution, they embody the values and solemn expressions of faith that the Constitution celebrates and respects.

The Utah Highway Patrol Association participated in the case as intervenors represented by the Alliance Defense Fund (ADF). The ADF’s lead counsel for UHPA, Byron Babione, said, “One atheist group’s agenda shouldn’t diminish the sacrifice made by highway patrol officers and their families.” ADF would continue to fight to protect these memorials, he added.

The slight silver lining in this denial is that Thomas’s dissent suggests that the High Court might not have seen the 10th Circuit’s judgment as covering all roadside crosses, instead regarding it as covering only roadside crosses bearing government insignia (which are presumably rare).

If so, then perhaps by removing the police logo the crosses might survive a second round of litigation, and other crosses would be spared. But it’s a sad day that we even need to discuss Plan B.