DAVENPORT v. AMERICAN ATHEISTS, INC.
The Utah Highway Patrol Association (“UHPA”) is a private group that provides support to Utah highway patrolmen and their families. Lance Davenport is the superintendent of the Utah Highway Patrol. In 1998, the UHPA began placing 12- by 6- foot crosses at or near locations where officers were killed on duty. The officer’s name, rank, badge number were written across the horizontal beam of each memorial; the vertical beam features the symbol of the highway patrol, the year of the officer’s death, and a plaque displaying his picture, biographical information and the details of his death. The UHPA has erected 13 of these monuments. It chose the memorials because of the cross’ traditional association with death and burials, and not because of its specifically Christian significance.
To ensure public access, the UHPA requested permission from the state of Utah to erect some of the memorials by public rights-of-way, rest areas, and on the lawn of the Utah Highway Patrol office. Utah granted the UHPA permission.
American Atheists, Inc., an organization advocating for the absolute separation of church and state, sued several state officials including Davenport because the memorials were on public property and bore the symbol of the Utah Highway Patrol. The UHPA intervened to defend its right to place the memorials. Both parties moved for summary judgment, and the district court found in favor of the UHPA, holding that the memorials communicated an overall secular message. On appeal, the U.S. Court of Appeals, 10th Circuit, reversed the lower court’s decision, by applying the “Lemon/endorsement test.” Judge David Ebel, writing for the majority, held that the memorials would communicate a religious preference for Christianity to a reasonable observer.
Does the UHPA’s erection of memorial crosses present a significant unresolved legal question under the 1st amendment’s establishment clause?
No. The court denied the petitions for writs of certiorari, holding that there was not a significant unresolved establishment clause question for the court to consider.
Justice Clarence Thomas dissented. He wrote that the Supreme Court has failed to clarify where and when the so-called “Lemon/endorsement test” applies to displays of arguably religious significance on public property. He noted that the 10th circuit court relied on its own precedent –not that of the highest court—to decide that the display of memorial crosses was impermissible. Justice Thomas described how courts have applied the “Lemon/endorsement test"" differently in cases with similar facts. He argued that the court has a clear interest in providing the lower courts with a clear test to apply in future similar establishment clause cases.