The First Amendment’s Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” The Fourteenth Amendment incorporates the Establishment Clause against the states, prohibiting the states and their political subdivisions from doing the same. A recent Tenth Circuit case has underscored the longstanding conflict over how to interpret this provision.
The Utah Highway Patrol Association (“UHPA”) is a non-profit organization that supports the members and families of the Utah Highway Patrol (“UHP”) (collectively, the “Defendants”). In 1998, UHPA obtained the UHP’s permission to erect crosses on publicly-owned land to memorialize fallen UHP troopers. Each of the twelve-foot high crosses displayed the name, rank, and badge number of a trooper who had died near the cross’s location. Additionally, each cross depicted the UHP’s official insignia and includes a small plaque containing the trooper’s picture and biographical information. Over six years, UPHA erected thirteen memorials on rights-of-way adjacent to State roads, at rest areas, and on the lawn outside a UHP office. Although the UHP granted permission to erect the crosses, UHP expressly denied that it endorsed the memorials.
The crosses’ fidelity to the Establishment Clause was challenged by three Utah-resident members of American Atheists, Inc. (“American Atheists”), a Texas non-profit organization. The district court granted summary judgment to the Defendants, holding that the crosses violated neither the Utah nor the federal constitution. The American Atheists appealed this decision to the Tenth Circuit Court of Appeals.
Circuit Judge Ebel wrote the opinion of the court, with Circuit Judges Tacha and Hartz joining. After determining that American Atheists had standing to bring the case and that the crosses were government speech subject to Establishment Clause scrutiny, the court reviewed American Atheists’s Establishment Clause claim de novo.
The court applied the Supreme Court’s three-prong test from Lemon v. Kurtzman. Under that that test, government action violates the Establishment Clause unless it (1) has a secular purpose (“purpose prong); (2) has a “principle or primary effect that neither advances nor inhibits religion” (“effect prong”); and (3) does not foster “excessive government entanglement with religion” (“entanglement prong”). Here, the plaintiffs alleged violations of the first two prongs, but not the third. The Tenth Circuit interprets Lemon’s purpose and effect prongs in light of Justice O’Connor’s endorsement test (“Lemon/endorsement test”). In other words, government conduct violates the Establishment Clause if it has the purpose or effect of endorsing or disapproving of religion.
First, the court found that the Defendants had not violated the purpose prong. To the contrary, UHPA’s asserted motives were entirely secular: to honor fallen troopers and promote highway safety. By accepting UHPA’s motives and acknowledging support for UHPA’s intent, the government adopted UHPA’s secular purpose as its own. Furthermore, UHP expressly denied that it endorsed the religious symbolism of the cross.
Second, the court found that the defendants had indeed violated the effect prong. This prong asks whether the government conduct has the effect of conveying religious endorsement or disapproval. The court views messages conveyed by government conduct through the eyes of a fictitious reasonable observer (“reasonable observer standard”). The reasonable observer is not omniscient but is nonetheless presumed to know the purpose, context, and history of a religious symbol on public land.
Although the crosses’ purpose was admittedly secular, the court denied that this could be dispositive of the effect prong analysis. Instead, the court emphasized the inherently religious nature of the cross, which is the preeminent symbol of Christianity. The court opined that a reasonable observer would infer some connection between Christianity and UHP due to the UHP insignia fastened to cross. Taking that connection to heart, observers might fear unequal treatment by UHP on the highways and in UHP’s hiring practices. Such a perception could make non-Christian observers feel like political outsiders or coerce them into becoming Christian in hope of receiving preferential treatment. Although the crosses contained biographical information about the fallen troopers, indicating that they were memorials rather than religious monuments, the court stated observers would not see the memorials whilst hurtling by at fifty-five miles per hour. Nor did the court hold the context of the memorials negated their religious significance. As such, the court reversed the district court and declared the crosses unconstitutional. The court denied the Defendants’ Suggestion for Rehearing En Banc.
Circuit Judge Kelly, joined by Circuit Judges O’Brien, Tymkovich, and Gorsuch, dissented from the court’s denial of rehearing en banc. First, Judge Kelly derided the panel for effectively presuming the unconstitutionality of religious symbols on public land. Second, he argued that the panel misapplied the reasonable observer standard. In the Tenth Circuit, the reasonable observer possesses “vast” knowledge of displays, including the display’s physical setting, the reasons motivating its erection and design, the surrounding community’s history, and many other facts not accessible to casual passersby. In contrast, the panel presumed the observer to be speeding by at fifty-five miles per hour, taking notice of the cross’s large size and the presence of UHP’s insignia, but not the fallen officer’s biographical information. Furthermore, the panel’s reasonable observer, according to Judge Kelly, does not adequately consider the crosses’ secular purpose, that the crosses were chosen by the troopers’ families, nor Utah’s express refusal to endorse the crosses. Third, Judge Kelly saw as flawed the panel’s tendency to equate the religious nature of the cross with the message it conveyed in this context.
Circuit Judge Gorsuch wrote a second dissent, joined by Circuit Judge Kelly. Judge Gorsuch questioned whether courts should continue to use the reasonable observer standard in Establishment Clause cases. Judge Gorsuch cited opinions of other circuits rejecting the standard, as well as a recent Supreme Court plurality opinion casting the standard’s vitality into doubt.
American Atheists exemplifies the conflict in Establishment Clause jurisprudence over whether judges should continue to employ the Lemon/endorsement test’s reasonable observer standard. Even judges who agree with the standard are split on how to apply it. In resolving this conflict, judges should first remember the reasonable observer standard’s utility and not cast it aside lightly. Second, a proper application of the standard should find some middle ground between the panel’s too-casual observer and the dissenters’ nigh-omniscient observer. Finally, all signs indicate that the Supreme Court, should it grant American Atheists certiorari, will terminate this dispute by abolishing the reasonable observer standard.
First, courts should continue using the reasonable observer standard to assess Establishment Clause challenges. Religious liberty needs the Lemon/endorsement test’s safeguards to flourish, and the Lemon/endorsement test could not function without the reasonable observer. Government endorsements of religion pose a danger of psychological coercion, which in turn burdens the individual’s ability to choose religious beliefs according to his or her own conscience. To assess whether this negative effect of endorsement exists, one must first determine through whose eyes to view the government’s conduct. To chose those of any real individual would yield subjective and inconsistent results. Objectivity can only be obtained by employing a hypothetical reasonable observer akin to the reasonable prudent person of tort law.
Second, in applying the reasonable observer standard, courts should not ascribe too much or too little knowledge to the observer. The dissenters rightly point out that the American Atheists panel’s observer considers too little information. The dissenters’ observer, however, is too omniscient, knowing which individuals designed the cross, their subjective motivations for doing so, and every statement the UHP has made regarding the crosses. The conclusions reached by such an observer would be remote from crosses’ effect on ordinary people. A proper reasonable observer should fall between these two extremes. The observer should know more than someone unfamiliar with all the physical features of the symbol, but not more than rationally expected of relevant community members.
Finally, if the Supreme Court hears this case, it will probably reverse, eliminating the reasonable observer standard and possibly the entire Lemon/Endorsement Test. In Salazar v. Buono, the Court considered whether an injunction ordering the removal of a cross on public land was enforceable after a transfer of the land to a private party. The propriety of the injunction, which had been issued under the Lemon/endorsement test, was res judicata, so the Court could not repudiate the test. However, the plurality opinion, penned by Justice Kennedy and joined by Chief Justice Roberts and Justice Alito, implied contempt for the reasoning leading to the injunction. The plurality also questioned whether the reasonable observer standard was appropriate in every Establishment Clause case. Two concurring justices, Justices Scalia and Thomas, have long criticized the Lemon/endorsement test. It is thus highly probable that the Court contains five Justices poised to renounce the Lemon/endorsement test given the opportunity. American Atheists presents that chance.
 U.S. Const. amend. I.
 Am. Atheists, Inc. v. Davenport, No. 08-4061, 2010 WL 5151630, at *16 (10th Cir. Dec. 20, 2010).
 Id. at *11.
 Id. at *12.
 Id. at *10.
 Id. at *12–15
 403 U.S. 602, 612 (1971).
 Am. Atheists, 2010 WL 5151630, at *16.
 Id. at *17.
 Id. at *17, *18.
 Id. at *20.
 Id. at *18, *19.
 Id. at *18–24.
 Id. at *1.
 Id. at *1–8 (Kelly, J., dissenting).
 Id. at *10 (Gorsuch, J., dissenting) (citing ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 778 n.8 (8th Cir. 2005); Card v. City of Everett, 520 F.3d 1009, 1018 (9th Cir. 2008); Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 402 (4th Cir. 2005)).
 Id. (citing Salazar v. Buono, 130 S. Ct. 1803, 1819 (2010)).
 Steven G. Gey, The Procedural Annihilation of Structural Rights, 61 Hastings L.J. 1, 11 (2009).
 Am. Atheists, 2010 WL 5151630, at *4, *5.
 Buono, 130 S. Ct. at 1811.
 See id. at 1818 (“[T]he propriety of the 2002 injunction may be assumed, [but] the following discussion should not be read to suggest this Court’s agreement with the judgment . . . The constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.”).
 Id. at 1819.
 See Van Orden v. Perry, 545 U.S. 677, 692 (2005) (Scalia, J., concurring) (“[T]here is nothing unconstitutional in a State’s . . . honoring God through public prayer[.]”); Id. at 693–94 (Thomas, J., concurring) (stating that religious monuments do not violate the Establishment Clause because they do not constitute coercive religious establishments).