American Atheists Inc v Utah Highway Patrol Association

The US 10th Circuit Court of Appeals has made a decision in the case of American Atheists, Inc v Utah Highway Patrol Association which overrules an earlier decision by a US District Court in 2007. The Appeals Court decision relies heavily on the US Supreme Court decision in the case of Pleasant Grove City v. Summum.

The case involved the "No Establishment Clause" in the Ist Amendment to the US Constitution and concerned memorial crosses erected by the Utah Highway Patrol Association [ a private Charity] in memory of Utah Highway Patrol Officers who have been killed on duty. In the earlier District Court hearing the Court had held that the cross was not an exclusively religious symbol and it depended on the circumstances in which it was used. (An interesting sideline mentioned in the judgment was the fact that in Utah the majority Christian faith is Mormonism and the Mormon Church does not use the Cross as part of its religious symbols or worship)

The Court of Appeals however decided that the Cross was an exclusively religious symbol and as such violated the No Establishment clause. They also held that the American Atheists had standing to bring the claim because
"Here, the individual named plaintiffs allege to have had “direct personal and unwelcome contact with the crosses.” Mr. Andrews, one of the named plaintiffs, also stated that he has “occasionally altered [his] travel route or [has] not stopped at a particular rest stop to avoid contact with the crosses.”
which provides an interesting variation on the usual suggestion that it is religious people who are oversensitive. The oversensitivity of the American Atheists in Utah seems to uncannily parallel the oversensitivity of the Atheist Italian in the European Court of Human Rights case of Lautsi v Italy

What I found peculiar in the 10th Circuits reasoning was that they found
"None of these families [ie the families of the deceased Highway Patrolmen] have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, because the UHPA exists to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family."

It seems to me that on any rational understanding of the Non Establishment clause the fact that other Non Christian symbols were available to any family that wanted it destroys the suggestion that the memorial crosses constitute an establishment of religion. If the family of a deceased Highway Patrol officer want his (or her) sacrifice to be memorialised by a cross what right does anyone else have to object ?