dissenting from the denial of rehearing en banc, with whom O’BRIEN, TYMKOVICH, and GORSUCH, Circuit Judges, join.
The court’s decision continues a troubling development in our Establishment Clause cases — the use of a “reasonable observer” who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion. See Am. Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th Cir.2010). Despite assurance from the Supreme Court that the Establishment Clause does not require us to “purge from the public sphere all that in any way partakes in the religious,” Van Orden v. Perry, 545 U.S. 677, 699, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring) (citing Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983)), the court’s “reasonable observer” seems intent on doing just that. Thus, I respectfully dissent from the denial of rehearing en banc.
In striking down memorial crosses donated by the Utah Highway Patrol Association (“UHPA”) to commemorate fallen troopers, the court erred in several respects. First, the court’s analysis begins by effectively presuming that religious symbols on public property are unconstitutional. Such a presumption has no basis in our precedent and is unwarranted. Second, the court’s reasonable observer does not sufficiently acknowledge the totality of *1102the memorial crosses’ physical appearance, not to mention their context and history. This selective observation leads to the nominally “reasonable” observer’s odd conclusion that the UHP is a sort of “Christian police” that favors Christians over non-Christians — a conclusion that has no support in the facts, and seems more based upon the additional facts contained in Friedman v. Bd. of County Comm’rs of Bernalillo County, 781 F.2d 777, 778, 782 (10th Cir.1985) (en banc) than any sort of reality. Third, the court equates the religious nature of the cross with a message of endorsement. Contrary to the court’s decision, the Defendants did not bear the impossible burden of proving that Latin crosses are secular symbols. Rather, they needed to show only that the memorial crosses at issue conveyed a message of memorialization, not endorsement.
Background
A brief recitation of the operative facts is necessary. In 1998 the Utah Highway Patrol Association, a private organization that supports Utah Highway Patrol (“UHP”) officers and their families, began a project to memorialize UHP troopers killed in the line of duty. Am. Atheists, 616 F.3d at 1150. The UHPA decided to honor the fallen troopers by placing large, white crosses near the locations of their deaths. Id. at 1150-51. The UHPA chose crosses because in the UHPA’s opinion, “only a white cross could effectively convey the simultaneous message[s] of death, hon- or, remembrance, gratitude, sacrifice, and safety.” Id. at 1151 (internal quotation marks and citation omitted). The crosses are approximately twelve feet tall. Id. at 1150. The deceased officer’s name and badge number are painted on the six-foot crossbar in large, black lettering. Id. The crosses also bear the UHP’s beehive symbol, the deceased trooper’s picture, and a plaque containing the officer’s biographical information. Id. The State of Utah permitted the UHPA to erect approximately thirteen crosses on public property, but explicitly stated that it “neither approves or disapproves the memorial marker[s].” Id. at 1151 (internal quotation marks omitted).
In striking down the memorial crosses under the Establishment Clause, the court employed Justice O’Connor’s endorsement test. Am. Atheists, 616 F.3d at 1156-57. Under that framework, governmental action violates the Establishment Clause if, as viewed by a “reasonable observer,” it has the “effect of communicating a message of government endorsement or disapproval of religion.” Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring).
In my view, the court’s application of the endorsement test is incorrect to the extent it: (1) effectively imposed a presumption of unconstitutionality on religious symbols in the public sphere; (2) employed a “reasonable observer” who ignored certain facts of the case and instead drew unsupported and quite odd conclusions; and (3) incorrectly focused on the religious nature of the crosses themselves, instead of the message they convey.
Discussion
A. Presumption of Unconstitutionality.
The court’s application of the “endorsement test” begins with the correct and unremarkable observation that the Latin cross is “unequivocally a symbol of the Christian faith.” Am. Atheists, 616 F.3d at 1160 (internal quotation marks and citation omitted). In the court’s view, because the crosses are religious symbols standing alone, they “can only be allowed if their context and history avoid the conveyance of a message of governmental endorsement of religion.” Id. Only after this initial determination does the court note— *1103and promptly disregard — other physical features of the memorials, such as the officer’s name and badge number, the photograph of the officer, and the plaque containing biographical information. Id. The court thus fails to grapple with these key contextual elements, instead treating them as facts insufficient to overcome the prior conclusion that the crosses endorse religion. See id. (“The fact that the cross includes biographical information about the fallen trooper does not diminish the governmental message endorsing Christianity.”) (emphasis added); id. at 1161 (“Defendants point to four contextualizing facts that, they argue, render these cross memorials sufficiently secular to pass constitutional muster....”) (emphasis added).
This is a curious formulation of the issue. Of course, our job is to thoroughly analyze the appearance, context, and factual background of the challenged displays before deciding the constitutional question. See Lynch, 465 U.S. at 679-80, 104 S.Ct. 1355; Cnty. of Allegheny v. ACLU, 492 U.S. 573, 598-600, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Green v. Haskell Cnty. Bd. of Com’rs, 568 F.3d 784, 799-805 (10th Cir.2009); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1033-38 (10th Cir. 2008); O’Connor v. Washburn Univ., 416 F.3d 1216, 1227-31 (10th Cir.2005). All of the cases cited above involve a display with at least some religious content. See Lynch, 465 U.S. 668, 104 S.Ct. 1355 (creche); Cnty. of Allegheny, 492 U.S. 573, 109 S.Ct. 3086 (creche and menorah); Green, 568 F.3d 784 (Ten Commandments display); Weinbaum, 541 F.3d 1017 (various displays of Latin crosses); O’Connor, 416 F.3d 1216 (caricature of a Catholic bishop). Indeed, at issue in Lynch and Allegheny were statues of Mary, Joseph, and Jesus — quintessential^ religious symbols. Yet, the Supreme Court carefully considered all relevant factors to decide whether the displays conveyed a message of endorsement, not to “save” them from presumptive unconstitutionality. See Lynch, 465 U.S. at 679-80, 104 S.Ct. 1355; Cnty. of Allegheny, 492 U.S. at 598-600, 109 S.Ct. 3086. Further, in County of Allegheny the Supreme Court rejected Justice Stevens’s view that religious symbols on public property are presumptively unconstitutional. See 492 U.S. at 650, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Stevens, J., dissenting). Likewise, in Green we expressly rejected a presumption of unconstitutionality for displays of the Ten Commandments on public property. See Green, 568 F.3d at 798 (“We reject at the outset Mr. Green’s argument that governmental displays of the text of the Ten Commandments are presumptively unconstitutional”) (internal quotation marks and citation omitted).
Besides being unprecedented, the court’s approach is unwarranted. While it is undoubtedly correct that governments cannot erect or maintain symbols that convey “a message of governmental endorsement of religion,” Am. Atheists, 616 F.3d at 1160, the converse is also true: governments can erect or maintain religious symbols that do not convey a message of endorsement. See, e.g., Lynch, 465 U.S. 668, 104 S.Ct. 1355; Weinbaum, 541 F.3d 1017. Therefore, the mere presence of the memorial crosses, which are undoubtedly the “preeminent symbol of Christianity,” Am. Atheists, 616 F.3d at 1160, tells us next to nothing. Without consulting all relevant factors, we simply cannot determine whether the challenged displays violate the Establishment Clause. To presume otherwise is to evince hostility towards religion, which the First Amendment unquestionably prohibits. See Lynch, 465 U.S. at 673, 104 S.Ct. 1355. Thus, at the outset of this case the Defendants were not required to “secularize the message” of the memorial crosses. Am. Atheists, 616 F.3d at 1160. Rather, like in any other case, the *1104Plaintiffs bore the initial burden of proof— here, showing that, given all the relevant context and history, the memorial crosses had the purpose or effect of endorsing religion.
B. The Unreasonable “Reasonable Observer. ”
As the court notes, the “reasonable observer” of our Establishment Clause jurisprudence “is kin to the fictitious reasonably prudent person of tort law.” Am. Atheists, 616 F.3d at 1158 (internal quotation marks and citation omitted). His knowledge is “not limited to the information gleaned simply from viewing the challenged display,” and he “is presumed to know far more than most actual members of a given community.” Id. at 1158-59 (internal quotation marks and citations omitted). Additionally, a court’s ultimate task is not to determine “whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, or whether some reasonable person might think the State endorses religion.” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O’Connor, J., concurring) (internal quotation marks and citation omitted). Rather, the court must determine whether a fully informed, intelligent, and judicious “reasonable observer” would conclude that the display effectively sends a message that the government “prefer[s] one religion over another.” Am. Atheists, 616 F.3d at 1156 (internal quotation marks and citations omitted).
In the Tenth Circuit, the extent of the reasonable observer’s knowledge is vast. The reasonable observer is keenly aware of all the details of the challenged display, see Weinbaum, 541 F.3d at 1033-37; the display’s physical setting, see Green, 568 F.3d at 805-06, O’Connor, 416 F.3d at 1228-29; the factual history surrounding the erection of the display, including the motives of the display’s creator and the reasons for the display’s design, see Green, 568 F.3d at 800-03, Weinbaum, 541 F.3d at 1037, O’Connor, 416 F.3d at 1228; the history of the relevant community and of the physical space occupied by the display, see Weinbaum, 541 F.3d at 1033-34, O’Connor, 416 F.3d at 1229; and other facts not typically available to the average passerby. See Green, 568 F.3d at 801 (statements of county commissioners with regard to a Ten Commandments display); id. at 802 (photographs of the county commissioners standing in front of the monument); Weinbaum, 541 F.3d at 1033-34 (explanatory brochure produced by the City); id. at 1034 n. 18 (the fact that other American towns often incorporate symbols of the City’s name in the City’s seal); id. at 1037 (the “Olympic spirit” evoked by the display’s Spanish slogan); O’Connor, 416 F.3d at 1228 (brochure explaining the campuses’ art display).
Contrast this knowledge with the reasonable observer in this case: although the observer properly notices the crosses’ large size and the UHP’s beehive symbol, he fails to take account of the officer’s name and badge number painted on the crossbar in large, black letters, the officer’s picture, and the biographical plaque. Am. Atheists, 616 F.3d at 1160. Ostensibly this is because “a motorist driving by one of the memorial crosses at 55-plus miles per hour may not notice, and certainly would not focus on, the biographical information.” Id. However, the court itself noted that the reasonable observer’s knowledge is “not limited to the information gleaned simply from viewing the challenged display.” Id. at 1158 (internal quotation marks and citation omitted). This implies that the reasonable observer, at the very least, must “view[] the display itself.” Id. (internal quotation marks and citation omitted). That the average member of the community may not make the *1105effort to familiarize themselves with the crosses does not matter — “the reasonable observer is presumed to know far more than most actual members of a given community.” Id. at 1159 (internal quotation marks and citation omitted).
Beyond failing to acknowledge the entirety of the crosses’ physical characteristics, the court’s reasonable observer fails to adequately address the obvious and critical facts surrounding the memorial crosses — the crosses are erected near the location of the officer’s death, the crosses were erected by a private organization for the purpose of memorializing the fallen trooper, the crosses were chosen by the trooper’s family, and that Utah expressly declined to endorse the memorials. Am. Atheists, 616 F.3d at 1150-51. Failing to consider the relevant factual background stands in stark contrast to our precedent. In Green, for example, the reasonable observer considered the donor’s ostensible religious motivations for approaching the Board of County Commissioners, the Board’s decision timeline, and the Commissioner’s subsequent actions in support of the display. Green, 568 F.3d at 800-01. Similarly, in Weinbaum the reasonable observer knew that schoolchildren, not the school district, designed the challenged mural, Weinbaum, 541 F.3d at 1037, and in O’Connor the reasonable observer considered prior displays that had been erected in the same location. O’Connor, 416 F.3d at 1228. Yet in this case the court’s “reasonable observer” fails to consider nearly all the facts that cut against finding governmental endorsement.
The court’s “reasonable observer” does not merely fail to consider all relevant facts. He quickly departs from the evidence presented by the parties in favor of an unfounded and somewhat paranoid theory. Instead of concluding that the UHP adopted the crosses to memorialize the trooper whose name, picture, and biographical information is affixed to the cross — which, of course, is the conclusion supported by the record — the court’s observer “link[s]” the UHP and Christianity by way of the UHP’s beehive symbol. Am. Atheists, 616 F.3d at 1160. This “link” then leads the observer to conclude that the UHP is a sort of “Christian police” that discriminates in enforcing the law and hiring new employees. Id. at 1160-61. But why would a reasonable observer conjure up fears of religious discrimination given the far more plausible conclusion supported by the facts on the record — that the crosses memorialize fallen troopers? After all, a display’s “[e]ffects are most often the manifestations of a motivating purpose.” Weinbaum, 541 F.3d at 1033. Deciding an Establishment Clause case in part upon unfounded fears of discrimination, a sort of conspiratorial view of life, is an unwise approach. Things are often no more than what they appear. Yet, once unmoored from the facts of the case the reasonable observer’s conclusion is limited only by the court’s ability to imagine scenarios that would, if true, violate the Constitution.
The Court cites Friedman v. Board of Cnty. Comm’rs to support the reasonable observer’s fear of discrimination. However, contrary to the decision in Friedman, where the County’s seal, which was affixed to law enforcement vehicles, bore a cross surrounded by a “blaze of golden light,” a flock of sheep, and a Spanish phrase that translated to “With this, we conquer,” 781 F.2d 777, 779 (10th Cir.1985), in this case the observer’s fear of discrimination is completely conjectural.
In support of the decision, the court repeatedly emphasizes the crosses’ size. Am. Atheists, 616 F.3d at 1161, 1162, 1163 n. 14. It is true that the twelve-foot memorials are considerably taller than most roadside crosses. However, the UHPA’s *1106explanation for the size is quite sensible: to ensure that passing motorists will take notice of the display and absorb its message of “death, honor, remembrance, gratitude, sacrifice, and safety.” Id. at 1151.
Further, would the court’s “reasonable” observer be satisfied if the crosses were smaller? Not likely. After all, both small and large crosses are the “preeminent symbol[s] of Christianity,” id. at 1160, and it would be difficult for the UHPA to cram all the “contextualizing facts” the court desires onto a small cross. Focusing on the crosses’ size also exacerbates an already acute problem in our Establishment Clause jurisprudence — providing governments and the public with notice of what actions violate the Constitution. If a twelve-foot cross is unconstitutional, how about eight feet? Six feet? Four? Two? And what is the guiding principle? Confronted with the court’s decision, governments face a Hobson’s choice: foregoing memorial crosses or facing litigation. The choice most cash-strapped governments would choose is obvious, and it amounts to a heckler’s veto. Some might greet that result with enthusiasm — but it is certainly not required by the Constitution.
The court also notes that, in briefing and in oral argument, Utah took the position that it would permit memorial crosses but not other religious symbols. Am. Atheists, 616 F.3d at 1152 n. 2. Admittedly, Utah permitting only one religious symbol should give us pause in the appropriate case — but this is not the appropriate case. We really do not know how Utah officials would react if the UHPA requested permission to erect a symbol other than a cross, or how they would justify their decision. However, we do know the facts of this case. Here, the evidence shows that every family agreed to a cross. Id. at 1151. Thus, our role is not to postulate on the issue of whether Utah would send a message of endorsement if it permitted only crosses as memorials for deceased troopers.
C. Religious Symbolism of the Memorial Crosses.
Throughout the opinion, the court implies that the memorial crosses cannot simultaneously be religious symbols and survive challenge under the Establishment Clause. See Am. Atheists, 616 F.3d at 1161 (“We agree that a reasonable observer would recognize these memorial crosses as symbols of death. However, we do not agree that this nullifies their religious sectarian content because a memorial cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian.”); id. (“[Tjhere is no evidence that [the cross] is widely accepted as a secular symbol.”); id. at 1162 (“[T]he mere fact that the cross is a common symbol ... does not mean it is a secular symbol.”).
These statements are both confusing and troubling. Just as the Establishment Clause does not “compel the government to purge from the public sphere all that in any way partakes in the religious,” Van Orden, 545 U.S. at 699, 125 S.Ct. 2854 (Breyer, J., concurring) (citation omitted), it does not require the government to strip religious symbols of all religious significance as a condition precedent for display on public property. The court distinguishes this case from those addressing display of Christmas trees on the basis that Christmas trees have become secular symbols. See Am. Atheists, 616 F.3d at 1161. But the Supreme Court’s decision addressing creches are more on point. See Lynch, 465 U.S. at 670, 104 S.Ct. 1355 (upholding a creche displayed in a public park). Lynch did not hold that the statutes of Mary, Joseph, and Jesus had somehow morphed into secular symbols. Their religious nature was not stripped by the *1107surrounding reindeer. Id. at 687, 104 S.Ct. 1355. Rather, the Court held that these admittedly religious symbols did not violate the Establishment Clause. Id. at 685, 104 S.Ct. 1355; see also id. at 692, 104 S.Ct. 1355 (O’Connor, J., concurring) (applying the endorsement test to conclude that, despite the “religious and indeed sectarian significance of the creche,” the display did not endorse religion).
Likewise, in this case the Defendants did not face the impossible task of producing evidence “that the cross has been universally embraced as a marker for the burial sites of non-Christians or as a memorial for a non-Christian’s death.” American Atheists, 616 F.3d at 1161. They did not bear the burden of proving that the cross “is widely accepted as a secular symbol.” Id. That the cross is a “Christian symbol of death that signifies or memorializes the death of a Christian ” is not fatal under the Establishment Clause. Id. Rather, the Defendants needed to prove only that the memorial crosses — which are clearly religious symbols — did not send the message that Utah endorses Christianity.
The court also concludes that the crosses did not “convey[] in this context a secular meaning that can be divorced from its religious significance.” Id. at 1162. The court’s inability to ascertain a nonreligious message is remarkable. Recently, a plurality of the Supreme Court recognized precisely what the court did not — that the white, Latin cross is a “symbol that ... has complex meaning beyond the expression of religious views.” Salazar v. Buono, - U.S. -, 130 S.Ct. 1803, 1818, 176 L.Ed.2d 634 (2010) (plurality opinion). Indeed, Justice Kennedy recognized that “a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people.” Id. at 1820. Because crosses send at least a two-fold message, the plurality stated that “[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.” Id. at 1818. The court in the case at bar instead takes the view of the three dissenting justices— that crosses send a primarily religious message. Id. at 1829 (Stevens, J., dissenting).
While Buono does not directly control the case before us, the plurality’s opinion supports the common-sense perception that the memorial crosses did indeed have a “secular meaning that [could] be divorced from their religious significance.” Am. Atheists, 616 F.3d at 1162. This “secular meaning” or “secular message” is clear: to memorialize troopers who were killed in the line of duty. This is the message supported by the facts in the record, and it is a message fully consistent with the Constitution’s Establishment Clause.