The high court announced Oct. 31 it would not take up a case from the U.S. Tenth Circuit Court of Appeals in which a three-judge panel last year ordered the removal of more than a dozen 12-foot-tall, six-foot-wide crosses throughout Utah honoring state troopers killed in action. That panel said the crosses – placed near the trooper’s site of death – amounted to an unconstitutional government establishment of religion and that a reasonable observer would conclude “the state of Utah is endorsing Christianity.”
The full Tenth Circuit subsequently refused to take up the case in a 5-4 vote, and the Supreme Court also refused, with only Justice Clarence Thomas saying, in a 19-page dissent, that the court should have acted.
Because the Tenth Circuit also covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, the case’s impact could be felt elsewhere.
“None of their crosses on public property will be tolerated either,” said Tony Perkins of the Family Research Council (FRC), which submitted a brief supporting the crosses. “And if this decision is ever applied nationally, as FRC’s amicus brief pointed out, Arlington National Cemetery and other landmarks would have to be completely dismantled. Of course, the irony is that these roadside crosses are not only constitutional, but they also represent the very values that our Constitution celebrates.”
The fact that the Supreme Court did not take the case left conservative groups puzzled. Just last year, Justice Anthony Kennedy, in a separate church-state case that allowed a cross on California public land to remain, wrote in a majority opinion that the “goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.”
“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,” Kennedy wrote in that case, Salazar v. Buono. “The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”
The case was brought by a group called American Atheists. The Alliance Defense Fund, a Christian legal group, represented the Utah Highway Patrol Association in the case.
“It is baffling that the Supreme Court did not take this case, in light of the fact that just last year they said that roadside memorials to fallen troopers would not violate the establishment clause,” said Byron Babione, senior counsel with the Alliance Defense Fund.
Ken Klukowski, director of the Center for Religious Liberty at the Family Research Council, said Thomas’ dissent suggests that only crosses bearing government insignia are impacted by the court’s denial. The crosses themselves are privately funded, although they do bear the Utah Highway Patrol official symbol and most of them are on public land. Each cross has the trooper’s name, rank and badge number, along with the year he or she died, biographical information and a picture.
“If so, then perhaps by removing the police logo the crosses might survive a second round of litigation, and other crosses would be spared,” Klukowski wrote in a column for the Washington Examiner. If not, though, then “follow-up cases are likely to remove all roadside crosses – such as those supported by MADD – and crosses from all federal, state, and local parks and buildings in the six states comprising the 10th Circuit.” Ed Whalen, president of the Ethics and Public Policy Center and a blogger at NationalReview.com, surmised that the court may not have taken up the case because it did not think it was the ideal case to clear up Establishment Clause confusion. For instance, Whalen noted, Thomas mentioned that families were not allowed to pick any symbol other than a cross.
Conservative groups took heart in Thomas’ dissent, in which he gave an historical overview of recent Supreme Court church-state decisions and concluded they were a “mess” that had led to confusion.
In one famous pair of cases issued on the same day in 2005 that involved public property, the Supreme Court left alone a Ten Commandments monument in Texas but said a Ten Commandments display in Kentucky must be removed. A sarcastic Thomas wrote, “A display of the Ten Commandments on government property … violates the Establishment Clause, except when it doesn’t.” He also cited confusing cases related to crosses, creches and menorahs.
“Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles,” Thomas wrote. He poked fun at the Tenth Circuit’s reliance on the “reasonable observer” test but then wrote, “To be fair to the Tenth Circuit, it is our Establishment Clause jurisprudence that invites this type of erratic, selective analysis of the constitutionality of religious imagery on government property.”