American Atheists v. Duncan

*Now known as Davenport v. American Atheists.

William J. Antoniewicz, a 27-year-old Utah state trooper, was shot to death on December 8, 1974 while making a routine traffic stop near the Utah-Wyoming border. Many years later, the Utah Highway Patrol Association, a private group dedicated to supporting the state troopers, decided to erect a 12-foot memorial cross with a biographical plaque near the site of his death. The patrol association has since erected 13 more crosses in Utah commemorating all of its fallen patrolmen. In every case the trooper’s family has agreed to have a memorial cross set up.

In December 2005, American Atheists, a Texas-based organization, sued in federal court, seeking to have the crosses removed. American Atheists claimed that Utah violated the Establishment Clause simply by allowing the patrol association to erect the privately owned, designed and erected memorial crosses on public property. In 2008 the Utah federal district court ruled in favor of the state, and American Atheists appealed the decision to the Tenth Circuit Circuit Court of Appeals in Denver.

Becket filed an amicus brief in the Tenth Circuit Circuit on behalf of the States of Colorado, Kansas, New Mexico, and Oklahoma, arguing that the memorial crosses do not violate the Establishment Clause because they constitute private speech, not government speech. In February 2009, the states and Becket were granted their request to participate in oral argument before the Tenth CIrcuit. Becket attorney Luke Goodrich was designated Special Assistant Attorney General for the State of Colorado to argue the appeal for the amici, and presented argument in early March 2009. Sadly, the Tenth Circuit overturned the lower court’s decision.The full panel decided not to grant a rehearing before the full court.

But what was remarkable is that the court’s decision focused in large part on Becket’s arguments, which were the strongest ones before the Court.

Becket filed an amicus brief in support of Utah’s appeal to the Supreme Court in May of 2011. Although the Supreme Court denied review of this case, Justice Thomas believed review should be granted (see dissent here). Utah was represented by Alliance Defending Freedom, National Legal Foundation, Mylar Law, and Colorado’s Office of the Attorney General.

Pleasant Grove v. Summum

The city of Pleasant Grove, Utah included a Ten Commandments monument —along with other monuments—in its city park. A small religious group wanted to include its own religious monument in the same park, but was denied the permission to do so. Defending the city’s right to exclude the additional monument, Becket’s amicus brief argued that the city park displays were government—not private—speech, which meant that the city could legitimately decide which monuments to include and which to exclude.

The U.S. Supreme Court agreed, and its majority opinion relied on similar reasoning: such government speech was not subject to scrutiny under the First Amendment’s Free Speech Clause.

American Center for Law and Justice and Akin Gump Strauss Hauer & Feld, LLP were counsel in this case.

Bauchman v. West High School

Can school choirs sing songs that include religious texts? The law says ‘yes’

Richard Torgerson was a music teacher who led choir at West High School in Salt Lake City, Utah. Every year Mr. Torgerson arranged school concerts throughout the year where students would perform a variety of songs that reflected the diversity of the community’s culture and heritage. In addition to secular songs, he often included spiritual songs with a Judeo-Christian origin. Mr. Torgerson made clear that the religious songs were optional to perform, and that nonparticipation would not affect a student’s grade in any way.

But in 1995, a student sued the school, challenging the music director’s decision to include the religious songs in the school Christmas concert. Becket stepped in on behalf of other students and their parents to defend the school’s decision to foster cultural and religious diversity in its musical choices.

In federal court, Becket argued that, given the prevalence of religious themes and text in Western music, it is simply natural for a rich and diverse music curriculum to include music with religious references. Religious freedom, as understood by our nation’s founders, means that religion is a natural part of human culture and occupies a natural and proper place in the public square. Public schools are not required to scrub their curricula of any reference to religion. To do so would be to deny students valuable educational materials.

The courts agree with Becket: including religious songs does not violate the U.S. Constitution

In September 1995, the federal court agreed, ruling in favor of West High School and dismissing the student’s lawsuit. The student appealed to the Tenth Circuit Court of Appeals, which again ruled in favor of the high school on December 18, 1997. The court ruled that the student’s allegations were insufficient to support her attack on the song selections, given the obvious secular purposes of the Christmas concert, as well as the fact that the religious songs were completely optional for the students. Furthermore, the court saw no reason to conclude that the selection of religious songs was illegal simply because they contained views different from the student’s own. The Supreme Court declined to take up the student’s case, ensuring that religious music could continue to be part of the public square and to celebrated as part of America’s diverse culture.

Importance to religious liberty

  • Education: Public schools are not required by the U.S. Constitution to scrub their curricula of any reference to religion. To do so would deny students valuable educational materials that reflect our nation’s diverse culture.
  • Public square: Religion is a natural piece of human culture and has a natural place in the public square. Religious references cannot be confined to private spaces just because there are those who disagree with them.