American Atheists v. Duncan

William J. Antoniewicz, a 27-yeard-old Utah state trooper, was shot to death on December 8, 1974 while attempting to make a routine traffic stop near the Utah-Wyoming border.  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.

“American Atheists argue that the crosses violate the Establishment Clause because they are a religious symbol. Our amicus brief seeks to change the debate,” said Becket Fund legal counsel Luke Goodrich. “It is irrelevant whether the cross is a religious symbol or a secular symbol.  In this case, the cross is a form of private speech. And when the government allows private speech on public property, it cannot discriminate between secular and religious speech and muzzle only the religious.”

In February 2009, the amici States and the Becket Fund were granted their request to participate in oral argument before the Denver court.  Mr. 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.  A decision is expected sometime in mid-2009.

Resources & Documents

• Amici Curiae Brief of States and Becket Fund (PDF, 115.13KB)
• Cross Photo 1 (PDF, 360.18KB)
• Cross Photo 2 (PDF, 314.49KB)
• Cross Photo 3 (PDF, 369.51KB)