"Today the [Supreme] Court rejects an opportunity to provide clarity to an establishment clause jurisprudence in shambles," Thomas said in the dissent handed down last Monday. "A sharply divided Court of Appeals for the 10th Circuit has declared unconstitutional a private association's efforts to memorialize slain police officers with white roadside crosses, holding that the crosses convey to a reasonable observer that the state of Utah is endorsing Christianity. The 10th Circuit's opinion is one of the latest in a long line of 'religious display' decisions that, because of this court's nebulous establishment clause analyses, turn on little more than 'judicial predilections.'"
The establishment clause of the First Amendment, of course, says Congress -- or in the modern sense all government -- "shall make no law respecting an establishment of religion."
Thomas said in his lonely dissent he would grant review of the cases because "our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone's guess."
Thomas argues a pretty convincing case. What he doesn't explain, however, is why a conservative Supreme Court majority -- which presumably believes the way he does -- hasn't acted to straighten things out.
On SCOTUSBLOG.com, where all good Supreme Court correspondents now go to pray, the ultra-respected Lyle Denniston, dean emeritus of the high court press room, wrote: "In recent years, five of the Supreme Court justices have been highly critical of how the court decides the constitutionality of public displays of religious symbols or messages. That means, of course, that as a majority among the nine, they have the clear authority to make a change, if they wished."
It only takes four justices to accept a case for review. So why was Thomas the Lone Ranger in dissenting to the rejection of the Utah cross cases? We may never know.
"Because the court does not usually reveal how its members have voted on whether or not to grant [review], there is no certainty that Thomas was the only one who wanted to hear the Utah cross controversy," Denniston noted. "But one thing is certain: There were not four justices who were sufficiently committed to hearing this particular dispute that they would vote to grant."
Which doesn't take away from the legitimacy of Thomas' argument, which might resonate with liberals as well as conservatives.
In the underlying cases, the Utah Highway Patrol Association is a private group "dedicated to supporting Utah Highway Patrol officers and their families."
In 1998, the association began commemorating officers who died in the line of duty by placing 12-foot-by-6-foot white crosses at or near locations where the officers were killed. The officer's name, rank and badge number were "emblazoned across the full length of the horizontal beam of each memorial. The vertical beam bears the symbol of the Utah Highway Patrol, the year of the officer's death and a plaque displaying the officer's picture, his biographical information and details of his death."
The association, which paid for, erected and maintained the memorials, has erected 13 crosses so far, all with the permission of the state when they were located on public land.
Thomas said the association "chose the cross because it believed that crosses are used both generally in cemeteries to commemorate the dead and specifically by uniformed services to memorialize those who died in the line of duty. The association also said it believed only the cross effectively and simultaneously conveyed the messages of death, honor, remembrance, gratitude, sacrifice, and safety that the association wished to communicate to the public. Surviving family members of the fallen officers approved each memorial, and no family ever requested that the association use a symbol other than the cross."
There was no word on whether any of the fallen officers was Jewish, Muslim, atheist or agnostic.
A group called American Atheists Inc. and some of its members, sued several state officials. The suit alleged the state violated the establishment clause of the First Amendment, as incorporated by the 14th Amendment, "because most of the crosses were on state property and all of the crosses bore the Utah Highway Patrol's symbol." The association intervened to defend the memorials.
Though a federal judge gave the cross defenders summary judgment, an appeals court panel reversed while observing the Supreme Court is "sharply divided on the standard governing establishment clause cases."
Enter the good old Lemon test.
The three-pronged test was promulgated in 1971's Lemon vs. Kurtzman, asking: Does a government action have a secular purpose? Does it have the primary effect of advancing or inhibiting religion? And does it foster an excessive entanglement between government and religion?
Thomas and other conservatives, particularly Justice Antonin Scalia, have been beating the Lemon test with an ugly stick for decades. Now the test has been distilled down into the "Lemon/endorsement" test -- does a challenged government action have the actual purpose of endorsing religion, or does it have that effect when viewed by a "reasonable observer?"
The distilled test was proposed by Justice Sandra Day O'Connor in 1984's Lynch vs. Donnelly.
The appeals court panel applied the Lemon/endorsement test and concluded the memorial cross program failed it, carrying a message of religious endorsement.
The full 10th Circuit voted 5-4 not to rehear the case. In a dissent that would be echoed by Thomas, U.S. Circuit Judge Paul Joseph Kelly Jr. said: "The [appeals] 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. ... 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' [in 2005's Van Orden vs. Perry] ... the [appeals] court's 'reasonable observer' seems intent on doing just that."
In his own dissent, Thomas said it was no surprise the 10th Circuit "relied on its own precedent, rather than on any of this [Supreme] Court's cases, when it selected the Lemon/endorsement test as its governing analysis.
"Our jurisprudence provides no principled basis by which a lower court could discern whether Lemon/endorsement, or some other test, should apply in establishment clause cases," Thomas said. "Some of our cases have simply ignored the Lemon or Lemon/endorsement formulations. ... [2002's Zelman vs. Simmons-Harris; 2001's Good News Club vs. Milford Central School, and 1983's Marsh vs. Chambers] ... Other decisions have indicated that the Lemon/endorsement test is useful, but not binding [1984's Lynch vs. Donnelly and 1973's Hunt vs. McNair].
"Most recently, in Van Orden ... a majority of the [Supreme] Court declined to apply the Lemon/endorsement test in upholding a Ten Commandments monument located on the grounds of a state capitol. ... Yet in another case decided the same day, McCreary County vs. American Civil Liberties Union of Ky. ... the court selected the Lemon/endorsement test with nary a word of explanation and then declared a display of the Ten Commandments in a courthouse to be unconstitutional."
Citing Scalia's concurrent opinion on the larger Lemon test in 1993's Lamb's Chapel vs. Center Moriches Union, Thomas said the distilled Lemon/endorsement test continues to stalk "our establishment clause jurisprudence" like "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."
"Since Van Orden and McCreary, lower courts have understandably expressed confusion," Thomas argued, adding: "This confusion has caused the circuits to apply different tests to displays of religious imagery challenged under the establishment clause. Some lower courts have continued to apply the Lemon/endorsement test. Others have followed Van Orden. ... One circuit, in a case later dismissed as moot, applied both tests."
Thomas argued, "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."
In one case, a high court majority held "unconstitutional a solitary creche, surrounded by a 'fence-and-floral frame,' bearing a plaque stating 'This Display Donated by the Holy Name Society,' and located in the 'main,' 'most beautiful,' and 'most public' part of a county courthouse"; in another a court majority held "unconstitutional a creche consisting of 'large figures, easily visible and illuminated at night,' bearing a disclaimer reading 'Sponsored and maintained by Charlottesville-Albemarle Jaycees not by Albemarle County,' and located on the lawn of a county office building."
Then in Lynch a majority upheld "a creche displaying 5-inch to 5-foot tall figures of Jesus, Mary, Joseph, angels, shepherds, kings, and animals, surrounded by 'a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that [read] 'SEASONS GREETINGS,' situated in a park in the 'heart of the shopping district.'"
And in 1990 a majority upheld "a 15-foot stable 'furnished with a manger, two large pottery jugs, a ladder, railings, and some straw, but not with the figurines or statues commonly found in a ... creche,' bearing a disclaimer stating that 'This display ... does not constitute an endorsement by the commonwealth of any religion,' and located on the grounds of the state capitol, 100 yards from a Christmas tree," Thomas said, citing other examples.
Thomas offered similar examples for a menorah, the Ten Commandments and a cross, each of which he said violates the establishment clause, "except when it doesn't."
"One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes," Thomas fumed. "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.'"
The justice has remarkably retro views, and rejects the almost universally accepted concept that the 14th Amendment applies the Bill of Rights to the states and other levels of government. Thomas said: "Even if the [Supreme] 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. Indeed, five sitting justices have questioned or decried the Lemon/endorsement test's continued use."
Whatever creaky views he holds, Thomas is right. The Supreme Court's guidance on religious displays is damned confusing.