The Supreme Court refused to revisit a lower court ruling on whether roadside memorial crosses erected in honor of fallen highway troopers in Utah violated the Constitution, to the disappointment of one dissenting justice.
“Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles,” Justice Clarence Thomas wrote in a 19-page objection.
He believed that previous high court cases made it difficult for lower courts to rule on the matter, commenting that the “constitutionality of displays of religious imagery on government property anyone’s guess.”
The 12-foot-high white crosses in question, which were paid for by the private Utah Highway Patrol Association, were purported to be an endorsement of Christianity by the state.
American Atheists, Inc. sued the association and claimed that the placement of the religious symbols on public grounds was unconstitutional and in violation of the Establishment Clause of the First Amendment because most of the crosses were on state property and all of the crosses bore the Utah Highway Patrol’s symbol.
The association, however, argued that the crosses were simply memorializing the highway officers who died in the line of duty, not endorsing religion. The symbols all displayed biographical information of the troopers.
They also clarified that crosses were chosen because they were generally used to commemorate the dead in cemeteries and specifically used by uniformed services to memorialize fallen men.
“Only the cross effectively and simultaneously conveyed the message of death, honor, remembrance, gratitude, sacrifice, and safety that the association wished to communicate to the public,” Justice Thomas explained.
The group had also received permission from the State of Utah to erect some of their memorials on roadside public rights-of-way, at rest areas, and on the lawn of the Utah Highway Patrol office.
In the permit, the state noted that it “neither approves or disapproves the memorial marker.”
A divided Tenth Circuit Court of Appeals ultimately ruled in favor of the atheists and denied the association’s request for appeal, stating that even though the cross memorials had a secular purpose, they would nonetheless “convey to a reasonable observer that the state of Utah [was] endorsing Christianity,” because the cross was the “preeminent symbol of Christianity.”
Additionally, to a motorist driving by the symbols at more than 55 miles per hour, they would only notice the cross, not the biographical information displayed.
Appealing to the high court, the Utah Highway Patrol Association asked the court for clarity in determining what made a public display an endorsement of religion or not.
Several cases struggled with the same problem as well. Thomas cited a pair cases about the Ten Commandments in 2005.
While one court allowed framed copies of the Ten Commandments in county courthouses, another court on the same day ruled that a monument of the Ten Commandments on Texas state capitol grounds was constitutional.
With the recent rejection by the Supreme Court of the Utah roadside memorial cross case, clarity on the matter would be hard to achieve.
“It is difficult to imagine an area of law more in need of clarity,” Thomas penned.
“Respondents tell us there is no reason to think that a case with facts similar to this one will recur...but if that counsels against certiorari here, this Court will never again hear another case involving an Establishment Clause challenge to a religious display. It is this Court’s precedent that has rendered even the most minute aesthetic details of a religious display relevant to the constitutional question. We should not now abdicate our responsibility to clean up our mess because these disputes, by our own making, are ‘factbound.’”
“This suit... is as ripe a suit for certiorari as any,” he concluded.
The Family Research Council, like Thomas, also criticized the Supreme Court for letting stand “one of the worst religious assaults in all of American history.”
“The Supreme Court has failed to recognize that religious liberty is a fundamental right given to us by God and protected in the Constitution,” FRC President Tony Perkins said in a statement. “I find it tragic that our freedoms are now at greater risk from our own courts than from the foreign or domestic enemies we’ve faced.”
Ken Klukowski, director of the Center for Religious Liberty at FRC, also added, “Freedom of religion means, in part, that no government should discriminate against those, who, using their own funds, wish to erect a non-invasive religious display on public property.”
“The U.S. Supreme Court decided today to let stand one of the worst decisions on religious liberty in American history. The Tenth Circuit Court of Appeals ordered removal of roadside crosses in six states is the worst example yet of the Establishment Clause being turned on its head to sterilize the public square of references to faith.”