American Atheists v. Duncan, Utah (2005 – 2011)
American Atheists v. Duncan is now known as Davenport v. American Atheists.
William J. Antoniewicz, a 27-year-old Utah state trooper, was shot to death on December 8, 1974 while making a routine traffic stop near the Utah-Wyoming border. Many years later, the Utah Highway Patrol Association, a private group dedicated to supporting the state troopers, decided to erect a 12-foot memorial cross with a biographical plaque near the site of his death. The patrol association has since erected 13 more crosses in Utah commemorating all of its fallen patrolmen. In every case the trooper’s family has agreed to have a memorial cross set up.
In December 2005, Texas-based American Atheists (founded by Madalyn Murray O’Hair) sued in federal court, seeking to have the crosses removed. American Atheists alleged that the State of Utah violated the Establishment Clause of the First Amendment simply by allowing the patrol association to erect the privately owned, designed and erected memorial crosses on public property. In 2008 the Utah federal district court found in favor of the State, and American Atheists appealed the decision to the 10th Circuit Court of Appeals in Denver.
In support of the State of Utah, The Becket Fund filed an amicus curiae brief in the 10th Circuit on behalf of the States of Colorado, Kansas, New Mexico, and Oklahoma, arguing that the memorial crosses do not violate the Establishment Clause because they constitute private speech, not government speech.
In February 2009, the amici States and the Becket Fund were granted their request to participate in oral argument before the Denver court. Becket Fund attorney Luke Goodrich was designated Special Assistant Attorney General for the State of Colorado to argue the appeal for the amici, and presented argument in early March 2009. Sadly, the 10th Circuit overturned the lower court’s decision. But what was remarkable is that the court’s decision focused in large part on the Becket Fund’s arguments—they were the strongest ones presented to the Court. The full panel then decided not to grant rehearing en banc.
The Becket Fund filed an amicus brief in support of Utah’s petition for certiorari at the Supreme Court in May of 2011.
The Supreme Court denied review of this case, October 31, 2011. However, Justice Thomas believed review should be granted (see dissent here).
Tenth Circuit Opinion (8-18-2010)
Becket Fund’s 10th Circuit Amicus Brief (10-24-2008)
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