Blog by Gary McCaleb – ADF Senior VP; Senior Counsel
When highway patrolmen wanted to honor thirteen troopers who died serving in the vast expanses of Utah, they decided to use roadside crosses. The private Utah Highway Patrol Association then used volunteer labor, donated materials, and a lot of heart to carefully place memorials at or near where each trooper died. Each bore the trooper’s name, the highway patrol logo, and a plaque narrating the tragic loss. Just as the Association intended, those who see the crosses instantly know that an officer died there; that the death is honored, remembered, and deeply felt.
This seems reasonable and right; families and colleagues should be able to honor their heroes as they see fit. Except, of course, if such memorials offend passing atheists—who then flee to federal court, claiming that the memorials somehow “establish religion” and violate the so-called “separation of church and state.” Sadly, just as these troopers once fell to violence, now their memorials may fall to a wrongheaded notion of American law.
ADF is defending the Association’s memorials and won the case in district court. But the atheists prevailed at the first level of appeal, thanks to the muddled state of the law on Establishment Clause issues. Now ADF is asking the Supreme Court to take the case and protect the memorials. Happily, many allies came alongside ADF to file supporting “friend of the court” briefs urging the Court to take the case using well-reasoned logic and law to press their point.
But for me, two of those briefs are less about the law than they are about some heart-rending memories rooted in my life before law, when I was a government forester in Oregon and New Mexico. In our western states, April may have its showers, but May brings wildfire, not flowers, as a seasonal drought comes about. And with wildfire comes a small migratory horde of yellow-clad firefighters.
Their work is primitive and dangerous: man versus flame, with little between but a hand-scraped fireline. When the danger turns deadly, the firefighter’s last hope rests in a “fire shelter,” a tiny metalized tent. It works when things are bad, but its nickname “shake and bake” reflects a bitter truth: it cannot protect against the worst.
And the worst happens: death follows fire as fire follows drought, sometimes consuming entire crews. Thirteen were swallowed by flame in a grassy swale called Mann Gulch in Montana. Fifteen fell in California on the rocky slopes of Powderhouse Canyon. And fourteen died on Colorado’s brush-choked Storm King Mountain.
But like any band of brothers (and sisters—four women died at Storm King), firefighters honor their fallen friends and colleagues. Today, those firefighters are memorialized by crosses marking where they fell in Montana, California, and Colorado.
And therein lies the link: two of the supporting briefs recount the stories of the firefighter memorials in California and Colorado —the latter brief submitted by Robert Mackey, whose son Don I met a few days before his death on Storm King.
As I read these briefs, my ADF office fades; in its place is a small-town cemetery, where on a hot New Mexican day I slipped the black band of mourning over my Forest Service badge and escorted one of our own to his final rest—one of three who died when our firefighting helicopter crashed. Somehow time turns transparent to pain; loss then is immediate now; the longing to remember and honor the fallen is palpable.
Yet whatever anguish a colleague may feel; however deep the loss or piercing the pain may be, if the Supreme Court spurns the Association’s petition, then our fallen American heroes may receive only such honor as would please an atheist.
We at ADF often ask our supporters to pray—just as ADF team members pray each work day morning for our cases—and this would be my plea to you today; that the high Court take our case, right the wrong, and let all of these memorials stand.
