(CN) – Justice Clarence Thomas slammed his Supreme Court colleagues on Monday for rejecting consideration of a ban on enormous crosses erected as roadside memorials in Utah for fallen officers.
“Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles,” Thomas wrote Monday, noting that the case has deeply divided the Salt Lake City federal appeals court.
The 10th Circuit ruled in August that ruled the 12-foot-high white crosses – which included the name, rank and badge number of troopers killed in the line of duty, as well as the group’s beehive symbol – were unconstitutional. When the Utah Highway Patrol Association pressed the court for reconsideration, the sharply divided judges refused, 5-4.
The 13 crosses sit alongside state highways and side-streets, including two in front of the Utah Highway Patrol field office.
American Atheists, a Texas-based nonprofit, sued Utah in 2005 for allowing the highway patrol to incorporate its logo on the memorials, first unveiled in 1998. Originally their case was unsuccessful, with a federal judge disagreeing that the memorials violated the Establishment Clause.
Justice Thomas said he would have granted certiorari because the court’s “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”
The available tests by which the courts can consider the constitutionality of purportedly religious displays “are so utterly indeterminate that they permit different courts to reach inconsistent results,” he added, going on to cite various instances when the courts have come to differing conclusions.
“Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t,” Thomas wrote.
“Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t.”
“A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t.”
“Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t,” Thomas added, citing three cases where such crosses were upheld.
“One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes,” he wrote. “Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion, but instead asks, based on terms like ‘context’ and ‘message,’ whether a hypothetical reasonable observer of a religious display could think that the government has made a law ‘respecting an establishment of religion.'”
“Even if the court does not share my view that the Establishment Clause restrains only the federal government, and that, even if incorporated, the clause only prohibits “‘actual legal coercion,'” the court should be deeply troubled by what its Establishment Clause jurisprudence has wrought.,” the 19-page dissent states.
“It is difficult to imagine an area of the law more in need of clarity, as the 46 amici curiae who filed briefs in support of certiorari confirm,” he added.