In its fractured “cross in the desert” opinion one year ago in Salazar v. Buono, the Supreme Court said in passing that the First Amendment does not require eradication of all religious symbols in public.

“A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs,” Justice Anthony Kennedy wrote.

Four months later, the U.S. Court of Appeals for the 10th Circuit did not take the high court’s hint, ruling that roadside crosses erected to memorialize Utah state troopers violated the Establishment Clause.

Now, Utah is asking the Supreme Court to take up its appeal of the “literally unprecedented” 10th Circuit decision, arguing that it reveals ongoing confusion about when religious symbols may be allowed on public property. The case is Davenport v. American Atheists Inc.

“A driver traveling an interstate through several circuits might observe roadside memorials containing crosses in one state, but a mile down the road, the very same memorials would be deemed unconstitutional,” wrote R. Ted Cruz, head of the Supreme Court and appellate practice at Morgan, Lewis & Bockius, in a petition filed April 20.

Utah approached Cruz to take on the appeal on a pro bono basis. As solicitor general of Texas, Cruz was involved in a key precedent Van Orden v. Perry, the 2005 case in which the Supreme Court upheld a Ten Commandments display on state property.

Since the Van Orden decision, Cruz said in an interview, “there has been a lot of confusion” about the proper test for evaluating claims that a particular display violates the First Amendment. Several circuits have adopted the “legal judgment” test used in Van Orden, while others, including the 10th Circuit, continue to use versions of the traditional “endorsement test” that asks whether a “reasonable observer” would interpret a religious display as a form of government endorsement of religion.

In a program that began in 1998, the Utah Highway Patrol Association has erected roadside memorials for state troopers who died in the line of duty. The memorials consist of a twelve-foot cross bearing the name of the trooper. Beneath the crossbar is a beehive, the official symbol of the Utah Highway Patrol. Most have been placed on public property, and Cruz said that if a trooper’s family requested a symbol other than a cross, that request would be honored – though it has not happened yet. The memorials are privately maintained, and while the state has allowed them to be built on public land, it has said it neither approves nor disapproves of the markers.

American Atheists Inc. and three of its Utah members sued state officials, claiming a First Amendment violation. The troopers’ association intervened in the case, and it too has filed a petition with the high court in the case, written by Byron Babione of the Alliance Defense Fund.

The 10th Circuit panel, in a decision written by Judge David Ebel, said that even though the program had a secular purpose, the memorials “would convey to a reasonable observer that the state of Utah is endorsing Christianity.” At highway speed, the panel agreed, drivers would only see the cross and the beehive and could “fear that Christians are likely to receive preferential treatment” from the highway patrol, both on the highway and in hiring practices. Utah sought en banc review, which was denied over the dissent of four judges.

Cruz believes the Court could regard the Utah case as “the ideal vehicle” to end or limit use of the endorsement test, which he said has a “long and troubled history.” His petition notes that six current justices – Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito Jr. – have expressed varying degrees of doubt about the test. In the Van Orden decision, for example, Breyer said that in tough cases, there is “no test-related substitute for the exercise of legal judgment.”

Instead, Cruz argues for a more permissive “coercion test,” which would allow for religious displays on public property so long as they do not coerce viewers to support any religion.

Under Court rules, American Atheists has until May 23 to respond to Utah’s petition. Opponents of public religious displays claim the appeal is part of a campaign to put crosses in a variety of public places including courthouses and public schools. “The cross is manifestly a representation of the Christian faith, and government co-optation of it in this way violates the First Amendment,” says Joseph Conn of Americans United for Separation of Church and State.

Tony Mauro can be contacted at