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Tenth Circuit Rules that Memorial Crosses Violate Establishment Clause

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by The Federalist Society
Posted August 19, 2010, 3:05 PM

Today, a Tenth Circuit Court of Appeals panel ruled that the Utah Highway Patrol's practice of setting up roadside crosses memorializing fallen troopers violates the Constitution's Establishment Clause. The panel relied on the Supreme Court's "endorsement" test, under which the court determines whether a reasonable observer would believe that the government's practice was endorsing a particular religion, arguing that the crosses could lead observers to believe that the highway patrol would give Christians preferential treatment.

Eugene Volokh writes on Volokh Conspiracy that while it appears five of the nine Supreme Court Justices disapprove of the endorsement test, and thus it may seem likely that the Court will take the case, Justice Scalia may actually be inclined to invalidate the highway patrol's policy based on arguments he made in his opinion in McCreary County v. ACLU (2005). Click here for further coverage on The Wall Street Journal Law Blog.

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