Fact Sheet: American Atheists v. Duncan

March 4, 2009

Fact Sheet for American Atheists v. Duncan, No. 08-4061,
Tenth Circuit Court of Appeals

The Utah Highway Patrol Association—a private, secular organization representing state troopers and their families—initiated, funded, and constructed memorial crosses for fallen Utah state troopers. The crosses stand on public highway roadsides near where each of the troopers died in the line of duty. These privately-owned memorials are being challenged by the group American Atheists, who seek to use the power of government to censor the Patrol Association’s memorials and force the Patrol Association to use only secular memorial symbols.

Why did the Becket Fund file an amicus brief?

The Becket Fund filed an amicus brief because this case is not about whether the government can put up a cross memorial, but about whether state governments must censor private parties who put up a cross, even when the government wants to create a forum for private citizen speech.

Why did the state governments join the Becket Fund's amicus brief?

Several states in the Tenth Circuit allow private speech on state property in order to provide more opportunities for citizen speech. Those states are concerned that their policies encouraging citizen speech will be blunted if American Atheists wins.

How is the recent Supreme Court decision in Summum related to this case?

This case tests the boundaries of the Supreme Court’s recent decision in Pleasant Grove City v. Summum, which sets the standard for deciding when permanent monuments are government speech, and when they are private speech. Two of the three judges in the original Summum panel are hearing this appeal, and the lawyer for Summum is also the lawyer for American Atheists.

What will be the implications if American Atheists prevails?

If American Atheists prevails it would have a direct impact on the six states within the Tenth Circuit: Utah, Colorado, New Mexico, Oklahoma, Kansas, and Wyoming. Any privately-erected, religious memorials on government property in those states could be vulnerable to a court challenge. This includes historical descansos in New Mexico. Other states could be affected the same way because the Tenth Circuit’s ruling would be persuasive, but not binding, authority for courts in those states.

Where and when is the case being argued?

The case is being argued on Monday, March 9 at 1:00 pm at Courtroom III of the Byron White US Courthouse (1823 Stout Street, Denver, CO 80257). Luke W. Goodrich, Legal Counsel for the Becket Fund for Religious Liberty, will argue the case on behalf of Colorado, New Mexico, Kansas, Oklahoma, and the Becket Fund. For the argument, Goodrich has been designated a Special Assistant Attorney General for the State of Colorado.

The Washington D.C.-based Becket Fund for Religious Liberty is a nonpartisan, interfaith, public-interest law firm dedicated to protecting the free expression of all religious traditions.

www.becketfund.org

For summary of case or more information: Ben Kemmy at bkemmy@becketfund.org or Kristina Arriaga at karriaga@becketfund.org