Don’t Cross Justice Thomas on the Establishment Clause

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review , Vol. 3

On Halloween Monday, the Supreme Court fittingly played “trick” rather than “treat” by declining to hear Utah Highway Patrol Association v. American Atheists. The question of the case in controversy is whether public displays of religious symbols violate the Constitution’s Establishment Clause of the First Amendment. If certiorari, or cert, was granted, the Supreme Court could have potentially clarified the muddled area of law. Rather, the Court denied cert.

A grant of certiorari is the usual way the Supreme Court hears a case. If four justices agree that a case should be heard, it is. Because five justices have been highly critical of the Court’s treatment regarding this issue, it is quite puzzling why only Justice Thomas dissented. But the fact that Justice Thomas was the sole dissenter does not mean another justice did not want to hear the case. Rather, it only means that four justices did not agree. We cannot tell how the justices voted, because they typically do not reveal their votes on certiorari.

Regardless, the facts of Utah Highway likely strike a chord with most Americans. The Utah Highway Patrol Association is a private organization dedicated to supporting the Utah Highway Patrol Office and their families. In 1998, the Association, in an effort to honor officers who died in the line of duty, built 12 by 6 foot white crosses at or near the locations where the officers were killed. Each cross included the slain officer’s name, rank, badge number, and the Utah Highway Patrol’s symbol, among other biographical details. In total, the Association built thirteen memorials. To ensure a memorial’s visibility, safety, and accurate location, some needed to be placed on public land. After the Association requested and received permission from the State of Utah, memorials were built on roadside public rights-of-way, at rest areas, and on the lawn of the Utah Highway Patrol Office.

American Atheists sued several state officials. They alleged violations of the Establishment Clause because some of the crosses were on state property and all of the crosses had the Utah Highway Patrol’s symbol. The Association intervened and defended the claims. The District Court found in favor of the Association. A Tenth Circuit panel reversed. The panel applied the highly contextual, and often criticized “endorsement” test from Lemon v. Kurtzman, 403 U.S. 602 (1971).

As applied in this case, the “endorsement” test asks whether the crosses had the actual purpose of endorsing religion or whether they had that effect from the perspective of a “reasonable observer.” The panel also considered whether the crosses had a secular purpose, had the primary effect of advancing or inhibiting religion, or fostered an excessive entanglement between government and religion. Allegheny County v. ACLU, 492 U.S. 573, 592-594 (1989). Despite finding that the crosses had a secular purpose, the Tenth Circuit panel concluded that the crosses would “convey to a reasonable observer that the state of Utah is endorsing Christianity.”

The Tenth Circuit, sitting as a whole, denied a rehearing, but not without harsh criticism from four dissenters. They criticized the panel’s reasoning and application of the endorsement test. Specifically, the panel presumed the crosses were unconstitutional and then analyzed whether the contextual factors rebutted that presumption. They also attacked the panel’s “unreasonable ‘reasonable observer,’” finding him to be “biased, replete with foibles, and prone to mistake.” Despite the Supreme Court ignoring the dissenters’ strong suggestion that the decision was worthy of review, Justice Thomas came to the rescue – as much as he could, anyway.

In a scathing review of Establishment Clause jurisprudence, Justice Thomas penned a nineteen page dissent. Through robust citation, Justice Thomas systematically presented cases using the Endorsement test to specific kinds of displays on government property. Focusing on displays of nativity scenes, menorahs, the Ten Commandments, and crosses, Justice Thomas demonstrated the wide divergence of the federal courts in deciding the constitutionality of similar cases. He sarcastically remarked that each display violates the Establishment Clause, “except when it doesn’t.” He added that some courts have applied a different test depending on the type of display, which “speaks volumes about the superficiality and irrationality” of the state of Establishment Clause law. Finally, Justice Thomas argued that Utah Highway, “which squarely implicates the viability and application of the Lemon Endorsement test, is as ripe a suit for certiorari as any.” This area of law is “more in need of clarity” and that the justices “should not now abdicate [their] responsibility to clean up [their] mess.”

As a result of the denial of certiorari, the decision of the Tenth Circuit panel stands. The Association’s memorials are no longer allowed on public land. To Clint Pierson, son of slain Trooper Lynn Pierson, the memorial reminds him of his father’s sacrifice. The decision hits him personally too, as he is also a police officer. The Association’s President, Trooper Chad McWilliams, called the decision a “slap in the face” for the families, serving as a death notification all over again. While it may seem to the contrary, neither side disputes whether the police officers should be honored – they should. Rather, the disputes centers around the appropriate site for the memorials. Brian Barnard, American Atheist’s attorney, says that memorials should include all Utahns and should represent both the religious and non-religious.

The Utah Highway case, and the scores of others like it, deeply divide most Americans on the placement of religious displays on government land. Some are horrified at the government’s “endorsement” of any religion, while others deem a display as “no harm, no foul.” Citizens wanting to erect religious symbols on public property may wonder the exact parameters of acceptable behavior. In fact, the law is rather unclear. The Utah Highway case is limited to the Tenth Circuit – Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. However one feels about this particular issue, the point is that the Court passed on an opportunity to let the public know the boundaries of public displays of religious symbols. Without a set of guidelines from which the public can channel its behavior, a similar situation will likely come before the Court again. Until that time, the Tenth Circuit is stuck with this rule that only convolutes Establishment Clause jurisprudence.


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