On Aug. 18, a panel of three federal appellate judges on the 10th U.S. Circuit Court of Appeals agreed that, "We hold these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion. They therefore violate the establishment clause of the federal constitution." Accordingly, 13 crosses, 12 feet in height, are to be removed because they are on public property.
The defendants argued in American Atheists Inc. v. Duncan that no constitutional problem existed because a white cross "is widely recognized for a person's death" and is therefore not a carrier of a religious message. They did admit that most of these large crosses were placed on public property and that they were much more visible than the small crosses placed alongside the road by private individuals to mark the scene of an accident.
The Appellate Court had a different conclusion and declared that "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of Christianity and they do so standing alone ..." In addition, "that cross conspicuously bears the imprimatur of a state entity, the UHP (Utah Highway Patrol), and is found primarily on public land." The "imprimatur" was a 12-inch-by-16-inch plaque bearing a state symbol.