Blasphemy 101 (December 2001)

This speech was delivered on Sept. 22, 2001, at the national convention of the Freedom From Religion Foundation in Madison, Wisconsin.

Thank you so much for the award. It is greatly appreciated.

Before I proceed with my prepared talk, let me thank two people.

Thanks to Joseph R. McCarthy, Jr. Yes, the infamous McCarthy. During my college years, I watched the complete Army-McCarthy hearings live. I detested that guy at a time when most everyone else worshipped him. But I really thank him because the very last time I went to church as a believer was in the mid-fifties. In his sermon, the priest extolled the virtues of McCarthy as a great Catholic who was being persecuted by the atheistic Communists. I walked out, never to return. So I have a debt of gratitude to old Tail Gunner Joe.

My second thanks go to my son Timothy. Tim died from injuries suffered in a car wreck 20 years ago. He had been in a coma for 536 days and passed away at the age of 15. As a result of this tragedy, I left the very comfortable practice of law as a partner in a Washington, D.C., law firm and promoted airbags in the mid-1980s. After that I moved to Denver and began a career in criminal defense and constitutional law. The practice of constitutional law, particularly cases dealing with the separation of church and state, has been by far the most exciting part of my legal career. Had it not been for Tim’s misfortune I’d probably still be sitting behind my big desk in D.C. bored to death.

Also, I have to say it is a bit surprising that I receive an award for being a freethinker. The fact is I am very opinionated, especially when it comes to the United States Constitution. I believe in each of the Ten Bill of Rights as avidly as a Christian believes in Jesus. And, of those ten, the one that ranks right at the top is the very first which states: “Congress shall make no law respecting an establishment of religion.” When people question my dedication to the principle of church/state separation, I tell them it must have been the most important liberty in the minds of the Founding Fathers because they chose to lead off the very First Amendment with the Establishment Clause. It’s a shame that the judicial system, and especially the current U.S. Supreme Court, has tinkered so much with these words because the admonition is simple–there shall be no establishment of religion. The idea of “accommodating” religion, which is the current rage with the judiciary, absolutely contradicts this clear and simple language and demeans our Constitution.

Now to the matter at hand–one Rodney Scott and a Colorado statute making it a crime to desecrate an object venerated by the public.

Rodney Scott is a 35-year-old country boy from the eastern plains of Colorado. At the time of this incident, he was employed by United Airlines.

Every weekday he would travel down Interstate 70 to Denver International Airport and return at the end of the day via the same highway. Interstate 70 is the main highway to and from Denver on the east.

In the short distance between Rodney’s home and Denver International Airport there were several roadside memorials. One, known as the “Propp” memorial, was in the median strip of Interstate 70; another, known as the “Rector” memorial, was in the median at the junction of Interstate 70 and Colfax Avenue. The memorials marked the spot where a traffic fatality occurred and each had a large Christian cross, statues of angels, and other paraphernalia. Scott likened it to “driving through a cemetery.”

Prior to the Rodney Scott incident, the Colorado Department of Transportation (CDOT) would remove roadside memorials containing religious symbols upon a request from a concerned citizen. Indeed, the FFRF’s Colorado Chapter had an ongoing program with the CDOT to do so. When a request for removal was made, CDOT would first try to find out who had placed the memorial. It usually succeeded because the name of the victim was customarily placed on the cross and all CDOT had to do was check police records for an accident at that location. Once the party who had placed the memorial was located, CDOT would remove the memorial and return it to that party. Unfortunately, on many occasions, the memorial would be put right back, so the whole exercise was somewhat like a revolving door.

Now, back to Rodney Scott. One evening in mid-April of 2000, a pickup was observed by a Colorado state trooper in the median strip where the Propp memorial stood. When the trooper pulled off the highway onto the median strip, he noticed two men and the rear of the pickup loaded with various items including flowers and an object that looked like a cross. The story gets confusing at this point. The Trooper stated that he questioned Scott, who told him that he was removing these things at the request of the person who had erected them. Scott denies this. He said that he told the Trooper that he was removing some trash from the median strip.

In any event, the Trooper checked Scott’s driver’s license, determined that he had not been drinking, wrote down the license number of the pickup, and left. The story gets a bit hazy at this point. But what appears to have happened is that word spread around the community, a community which is small and tightly knit, that the Propp memorial was missing and so, too, was the Rector memorial. One of the interesting things about this case which I’ll get into in a moment is that the Propp memorial was located in Arapahoe County and the Rector memorial was located in Adams County. Both are suburban counties adjoining Denver.

On August 5, a story appeared in the Denver Post that Rodney Scott had been charged in Adams County with desecration of an object venerated by the public. The venerated object Scott was charged with desecrating was not the Propp memorial where he was observed by the State Trooper but the Rector memorial several miles down the road. What had happened is that the District Attorney of Arapahoe County, which had jurisdiction over the Propp memorial, refused to file a criminal case. So, the Adams County District Attorney, Bob Grant, filed for desecration of the Rector memorial. The theory was that, because the Rector memorial came up missing at about the same time that Scott was observed near the Propp memorial, a circumstantial case could be made that Scott, therefore, removed the Rector memorial.

For the life of me, I’ll never understand why a charge of desecration was filed against Scott. It would have been much easier for the DA to have proved theft, criminal mischief, or vandalism. The only conclusion I can come to is that District Attorney Grant was playing to the audience of the religious right with bigger things planned for his political career.

When I saw the article in the August 5 newspaper, I called Scott and offered to defend him pro bono. He accepted. A pretrial conference was held on August 28 at which time the Assistant DA offered to settle the case for a modest fine, $50 as I recall, no jail time, and a short probation. Scott turned the offer down flat and the case was set for trial before Judge Jeffrey Romeo of the Adams County Court. You can imagine our concern having to try this case before an Italian judge, who we had reason to believe was a practicing Roman Catholic. However, before moving to ask that Judge Romeo be disqualified (which undoubtedly would have been unsuccessful) we decided to shelve the idea until we got a better feel as to whether or not he would be fair.

A date was set for motions. We filed two. One was a motion to suppress statements allegedly made by Scott during the course of the investigation on the grounds that they were coerced and should, therefore, not be admissable in court. This motion was denied because, even though Scott may not have received the so-called Miranda warning, which tells him that anything he says can be used against him, Judge Romeo held that he was not “in custody” and, therefore, such warning was not required. Most people don’t understand this technicality but the Miranda warning has been chipped away to the point where, if one is not in custody, i.e., under arrest, it is not applicable. The interrogation of Scott was conducted by two Adams County deputy sheriffs, one of whom was a good six feet five inches tall. Scott told the judge that he certainly felt intimidated and that he sure thought he was under arrest (which should have been enough to invoke Miranda) but Judge Romeo ruled against him.

The second motion asked that the desecration statute be declared unconstitutional because it violated the Establishment Clause of the U.S. Constitution. Our specific argument was that the statute had the effect of carving out a special niche of recognition and protection for religion and, therefore, constituted a religious preference and endorsement violating the separation of church and state. Judge Romeo also denied this motion. I was just about ready to ask the Judge to disqualify himself when he proceeded to launch into a dissertation about the weakness of the prosecution case.

Judge Romeo did not base his comments on anything having to do with religion. Instead, he told the DA that the presence of a roadside memorial on a public right-of-way appeared to him to be litter, an unauthorized foreign object, unlawful advertising, and a safety hazard. Judge Romeo advised the DA that these were obstacles the prosecution must overcome if it was to prevail at trial.

A jury trial was held on April 5, 2001, in the Adams County Court. Shortly before trial, the DA submitted a memorandum of law arguing that the median strip of Interstate 70 is a public forum and that citizens have a constitutional right under the free speech and assembly clauses of the First Amendment to put up roadside memorials. Judge Romeo deferred ruling on this contention until after the submission of evidence.

At the beginning of the jury selection process we moved that no Christian be allowed to sit on the jury. It was our intention to argue that roadside memorials are litter and we reasoned that no devout Christian would ever accept a contention that a Christian cross is litter. Judge Romeo denied our motion. However, he did disqualify several jurors who responded to a specific question that their religious beliefs would prevent them from ever deciding that a Christian cross is litter.

Five witnesses testified for the prosecution–the mother and stepfather of Brian Rector, the State Trooper who wrote down Scott’s license number, the Adams County deputy sheriff who investigated the case, and Dan Hopkins, the Public Information Director of CDOT. Hopkins’ testimony was very helpful to us and I will never understand why the DA chose to present him as one of the government witnesses. The testimony of the State Trooper and the deputy sheriff was pathetic. To make matters worse, they simply out-and-out lied. They testified that there was no reason why roadside memorials should not be allowed even though people pull into the median strip to pray at these memorials and to place flowers there. They also testified that even though the crosses were driven into the ground with steel rods, they presented no danger to a motorist or even a motorcyclist who might lose control and have to go into the median strip to recover.

The mother and stepfather of Brian Rector gave very predictable testimony. When I asked the mother why they couldn’t worship at the cemetery where her son was buried she replied that he wasn’t buried in a cemetery. Rather, he had been cremated and his ashes sat on the fireplace mantle at home. I felt sorry for the mom but not for the stepfather. He was extremely righteous and contentious and maintained that, even though the median was public property, it was his stepson’s part of the world and belonged to him. In response to my question about the Christian cross, he replied that “it wasn’t necessarily a Christian cross–a telephone pole is a cross.”

As I said earlier, CDOT official Hopkins was very helpful to our side of the case. He testified that the memorial was unlawful for a number of reasons and that it constituted a hazard to the motoring public. We then produced a copy of a letter Hopkins had written about two years earlier telling a citizen that he had the right to remove a roadside memorial if he objected to it. That clinched things. At the end of the prosecution’s case, we moved for a judgment of acquittal. The Judge granted the motion by ruling that the roadside memorial was litter, an illegal foreign object, unlawful advertising, adverse possession of public property, and a safety hazard. He also said that Rodney Scott was within his rights to remove the memorial if, in fact, he did so.

Based on this ruling, we assumed that CDOT would promptly remove both the Rector and Propp memorials (which had since been replaced). However, two weeks later the memorials were still there. Consequently, I wrote a letter to Mr. Hopkins asking that they be removed and destroyed instead of being returned to the families. That letter was written on April 23 of this year and has never been answered, even though I have repeated my request on several occasions.

CDOT is broken up into several regions. Region 1 services the Denver metropolitan and surrounding area. In June, I stopped at the Region I office which is less than one mile away from the Rector memorial. I asked the Regional Director’s assistant why the memorial hadn’t been removed. She replied that it should have been removed by now and that she would look into it.

In July we received a notice that the Transportation Commission would take the subject of roadside memorials up at its monthly meeting. The Transportation Commission is composed of one representative appointed by the Governor from each of CDOT’s 11 regions. The members are not government employees but come from all walks of life. The Chairman is an executive of a bank on the western side of the State.

When we saw the proposal the Commission was to consider, we were alarmed. If adopted, it would make removal of roadside memorials one of CDOT’s lowest priorities. Here we were armed with a judicial ruling that these memorials are unlawful for any number of reasons, and the biggest agency in the State was planning to ignore it. Added to this, we received notification by the Sheriff of Adams County that he would not ticket the Propps and the Rectors even though they had broken several penal statutes by placing these memorials.

Four of us appeared before the Transportation Commission and testified on July 26. Our position was that roadside memorials should have a high priority and should be removed and disposed of promptly after they are observed. After opposing testimony by parents of a traffic accident victim, the Commission decided to table the matter for the indefinite future. And, here’s a bit of irony. We contacted officials of Region 1 of CDOT a couple of weeks ago and were told that a memorial was just erected right in front of their building on State property. I personally went to inspect the scene and found that it included a huge statue of an angel that was very firmly entrenched into the ground. When I asked the Region 1 Director to explain the situation, I was told that the word had come down from the Governor not to remove that or any of the other roadside memorials. So much for his oath to uphold the constitution and the rule of law.

Meantime, the Adams County District Attorney has appealed the decision in the Rodney Scott case. Its basic argument is that roadside memorials are speech protected by the First Amendment and that the median strip of Interstate 70 is a public forum where citizens have a right to assemble and engage in expressive conduct. That argument is ludicrous on its face and we said so in our written brief. I should add parenthetically that I am representing Scott on the appeal and the Foundation has generously agreed to help fund the appeals project.

The matter was submitted to the appeals court in early August and we are hoping for a favorable decision soon–although I always have to caveat my optimism by noting that, in cases involving religion or having religious overtones, the judiciary is often unsympathetic to our side of the issue. Once the appeal court makes its ruling, we plan to go back to the Transportation Commission and ask it to adopt a policy of removing these memorials ASAP. Depending on what the appeals court says, we may also decide to do some excavating ourselves.

I always get a kick out of judges advising defendants in criminal cases that they are assumed to know the law and are obliged to follow it. Unfortunately, the latter cannot be said of the government itself and its officials at the Colorado Department of Transportation. This is a troublesome trend that is gaining popularity and perhaps the time has come to find a way to subject government officials to the same requirement of following the law that applies to ordinary citizens.

In any event, that is the story of the Rodney Scott case–so far. It has many more roads to travel and we’ll surely keep you and the Foundation advised as the trip progresses.

Freedom From Religion Foundation