Freethought Today, October 2000

Colorado Freethinker Charged with "Desecration"

By Robert R. Tiernan

Rodney Lyle Scott is a thirty-four-year old mechanic who works for United Airlines. He travels daily to and from Denver International Airport on Interstate 70, which is the main east-west highway in Colorado. Rodney is divorced and has joint custody of his three-year-old daughter.

In recent years, private citizens have erected a number of Christian crosses and other religious memorabilia along the median strip of Interstate 70. These displays mark the spots where loved ones died in traffic accidents although, in one case, a cross marked the area where a murdered woman's body was thrown from her assailant's car. So many crosses have been erected that Rodney Scott has likened it to driving through a graveyard. This phenomenon has not been restricted to Interstate 70. Crosses are cropping up on other highway rights of way all over Colorado and, we understand, in other states.

With all due respect to the grieving families, about two years ago FFRF's Colorado Chapter asked the Colorado Department of Transportation, commonly known as "CDOT," to stop this use of State highways to promote Christianity. This led to a program whereby CDOT, upon receiving a complaint, would first offer the family which had erected the memorial an opportunity to remove it. If that was not successful, CDOT would remove and dispose of the display itself.

Although a number of religious objects were removed under this program, it proved to be unsatisfactory primarily because, usually within days, the object would reappear at the same location. For this reason, the Colorado Chapter filed a written request with CDOT asking (1) that fines be assessed against the party or parties who erected a display and (2) that CDOT's maintenance crews routinely remove these objects regardless of whether their presence had been brought to official attention by the Colorado Chapter.

Ironically, just about the time this request was made, a Colorado State Trooper noticed Rodney Scott's pickup truck sitting in the median strip one evening alongside Interstate 70 about 25 miles east of Denver. He also noticed some religious paraphernalia in the back of the truck and questioned Scott. Satisfied that nothing was wrong, the Trooper left but not until he had made a note of the license plate number on Rodney's truck.

Things get a bit fuzzy after that. However, it appears that several people complained to the authorities that their Christian crosses had been removed from the Interstate 70 median strip and an investigation was initiated by the local sheriff's department. The State Trooper who had taken Scott's license number heard about the investigation and contacted the sheriff, who then questioned Scott. In the course of this questioning, Scott was not advised that he had a right to say nothing, that anything he said could be used against him and that he had a right to consult with a lawyer. This is the Miranda warning that is so often ignored by the authorities.

It was determined that Scott was probably the culprit who removed the crosses. An effort was first made to charge Scott in Arapahoe County because that was where he was originally spotted by the State Trooper. However, the Arapahoe County District Attorney refused to file charges, so Scott was charged in Adams County. The District Attorney in Adams County is a mean-spirited, politically ambitious person and undoubtedly saw this case as a career stepping-stone.

Curiously, Scott was not charged with theft of a roadside memorial. Instead, he was charged under a little-used law making it a crime to "desecrate an object venerated by the public." This has all the indicia of a crime against religion. The word "desecrate" means to destroy the sacredness of, and "veneration" is synonymous with worship. Our legal system has a long history of rejecting crimes such as blasphemy and heresy, so a major issue in the case will be whether the law violates the Constitutional principle of church/state separation.

At the arraignment, Scott was offered a plea bargain whereby he would only be fined $50 if he pled guilty. Scott refused and the case has been set for trial in early December.

We are now in the "discovery" phase of the case. This means that Scott is entitled to receive all documents relating to the case that are in the hands of the prosecution. One such document is a letter written by CDOT about two years ago advising a private citizen to remove a roadside cross which he complained about. On the basis of this, we asked that Scott's case be dropped, but the District Attorney refused. The prosecution's position on this issue is that the authorization was limited to the person to whom the letter was written and no one else. Odd, to say the least.

We are now in the "discovery" phase of the case. This means that Scott is entitled to receive all documents relating to the case that are in the hands of the prosecution. One such document is a letter written by CDOT about two years ago advising a private citizen to remove a roadside cross which he complained about. On the basis of this, we asked that Scott's case be dropped, but the District Attorney refused. The prosecution's position on this issue is that the authorization was limited to the person to whom the letter was written and no one else. Odd, to say the least.

The trial promises to be interesting. Assuming for the sake of argument that Scott did remove the roadside crosses, does this constitute "desecration"? What is an "object venerated by the public"? Will a survey be taken to establish this? What about those people who find roadside crosses repulsive? Will this be taken into account in determining whether the public venerates them? How can CDOT give one citizen authority to remove a roadside memorial and then have the government turn right around and file criminal charges against another person who did the very same thing? What gives people the right to erect private memorials on property owned by all the taxpayers? And what recourse does a citizen have if the government does not fulfill its responsibility by seeing to it that public property is not used to promote religion? If the government refuses to take a patently unconstitutional display down, doesn't the public have the right to do so?

At the arraignment, the presiding Judge insisted that the trial should not take more than one day. He reluctantly set it for a two-day trial but we believe that it will take the better part of a week. This could create some friction with the Judge so, thankfully, under our system of justice, Scott is entitled to a jury trial. Empanelling the jury to make sure that there are no jurors who are biased in favor of religion or opposed to separation of church and state could take an entire day.

Meantime, we have filed a motion with the Judge to dismiss the case on two grounds: first, that the criminal statute has the effect of unconstitutionally endorsing religion and, second, that the statute is unconstitutionally vague because it does not set an objective standard against which an alleged wrongdoer's actions can be measured. That motion is pending before the Judge and we are not optimistic that it will be granted. The usual response from a Judge is to allow the case to go to trial and let the jury decide.

After the case has been tried or in the unlikely event the Judge dismisses it, we shall do a follow-up on the results.


Attorney Robert R. Tiernan is a Foundation member who directs the Denver FFRF chapter. He is representing Rodney Scott pro bono.


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