Bad Facts Make Bad Law (Updated)

There are times I admire groups like Americans United for Separation of Church and State, the ACLU, or American Atheists. The ACLU often does principled work to protect individual freedoms and absorbs the blowback of unpopularity aimed its way by people who cannot see past the ACLU's odious clients or allow themselves to understand the principles that the organization is really fighting for.*

But then I come across something like this. American Atheists is challenging the practice of the Utah Highway Patrol Association planting roadside crosses next to places where officers have been slain. UHPA is a private organization, funded privately by its members, as a mutual support organization for highway patrol officers in Utah; it is not an organ of the UHP or otherwise a governmental entity. The objection to the crosses takes two forms -- the cross, as illustrated to the left, uses an insignia that looks a lot like a UHP badge, and the state allows the crosses to be planted on public land or a public right-of-way.

Come on, guys, do you think you could maybe find some defendants who have done something that ordinary people might actually object to? You're going to sink tens of thousands of dollars and hundreds of attorney hours into telling police in Utah that they can't put up a memorial to mourn their brother and sister officers? Okay, it's public land being used here, so yeah, there's a colorable claim of a Constitutional violation, but come on! Prioritize!

Well, they didn't prioritize. Amazingly, of all of the mixing-up of the LDS church with the way things actually run in Utah, apparently the lawyers there couldn't find any more egregious an Establishment than telling the families of slain police officers that they can't mourn their loved ones. Well, bad facts make for bad law, and this is what American Atheists got for their troubles out of the District Court:

Just as the Christmas tree evolved into a secular symbol of celebration, the cross has evolved into a symbol capable of communicating a secular message of death and burial. While the cross retains its religious meaning when placed in religious contexts, it has transformed into a representation of death and burial when placed in pop culture settings and when used as a memorial. Like the Christmas tree, which took on secular symbolism as Americans used the tree without subscribing to a particular religious belief, the cross has attained a secular status as Americans have used it to honor the place where fallen soldiers and citizens lay buried, or had fatal accidents, regardless of their religious belief. And the progression of the cross from a religious to a secular symbol continues as crosses are increasingly used to symbolize death in advertising campaigns, films, television, and seasonal holiday decorations--frequently having nothing to do with religion or a particular religious belief. Consequently, the court finds a reasonable observer, aware of the history and context of the community would not view the memorial crosses as a government endorsement of religion.

There you go -- a ruling that the cross is now a secular symbol of death and mourning. Which means that not only can it go up on roadside memorials, it can go up on the walls of courtrooms, city halls, and the Utah Legislature because it can be called a "memorial" to fallen soldiers, 9/11 victims, or anyone else that no one with the remotest bit of political sense would dare attack. Good job protecting the wall of separation of church and state there, American Atheists!

See, this is the problem with zealots. They are so convinced of the rightness of their own position that they lose the ability to see how their point of view fits in to the larger world. Yes, separation of church and state is an important principle, a principle enshrined in the First Amendment.** Yes, there are excellent reasons for it and yes, the courts are probably the best way to go about enforcing that part of the Constitution. But telling people they can't mourn fallen police officers with inexpensive wooden crosses and maybe some flowers and candles is just plain mean. So AA should not be surprised when the Courts go out of their way to produce bad law to fit these facts.

And this is one of the reasons I've not joined AA, FfRF, AU, ACLU, or any of those other organizations -- they sometimes do really good work and they sometimes do really dumb things like this, and none of them have impressed me with the ability to distinguish between the two. That, and I'm already on enough mailing lists of people who send me letters begging for money which I generally throw away unopened.

But mainly, it's because of stunts like this. It's as if someone in the Utah chapter of AA said something like this in a meeting: "Hmm. We're already the most despised minority in the United States. So what can we do to prove to the rest of the world that we really are a bunch of assholes, you know, really drop our approval ratings into the low single digits? Oooh! I know, let's go after people mourning their dead loved ones. Yeah! That way we can look just like Fred Phelps!" Okay, no one really said anything like that, but if they did, do you think the result would be any different than this?

If the cross had been paid for with public money, I might feel differently. But tolerating a temporary, privately-funded memorial to a slain police office on public land is not so severe an Establishment of religion as to raise my hackles. Let the privately-funded cross go up and stay for a reasonable length of time. Eventually it has to come down, yes, but let the family and colleagues of an officer killed in the line of duty mourn in the way that they think is right.

Hat tip to Prof. Howard Friedman, the author of the remarkable Religion Clause blog.

UPDATE: To clarify, I do hope that AA wins the case and given that they've done what they've done, I wish them the best. Calling a cross a "secular symbol" is nothing short of ridiculous and that holding ought to be overturned. (Christians ought to hope for the same thing; when they worship at the symbol of the cross, that ought to mean something special to them. I can't imagine a Christian liking the idea that the cross is somehow equivalent to the knife-and-fork ideogram that tells you there is a restaurant at the next freeway exit.) My fear is that the high sympathy factor for the defense here will get in the way of that, and my opinion is that discretion is the better part of valor, and AA would have been better-off looking elsewhere for its target litigation. But if they win, that would be the right result.


* Another reason I don't join the ACLU is too many of its members seem to render the organization's odious clients into bizarre kinds of heroes because they stand up to the government. They're not the ones doing the real standing up; their lawyers are, and the clients are generally not particularly noble individuals. That doesn't mean their rights are unimportant, but it does mean I have no illusions that it's necessarily David versus Goliath when the ACLU takes on an unpopular client.

** I know perfectly well that the words "separation of church and state" are not in the Constitution. But you'd have to deliberately blind yourself to original intent to say that the concept is irrelevant to understanding both the Establishment and Free Exercise Clauses. And if there's one thing I abide even less happily than target litigation crafted with a tin political ear, it's deliberate ignorance.