On Monday, the Supreme Court declined to hear a case involving government-permitted Christian crosses along roadways in Utah. As a consequence, the decision of a three-judge panel of the 10th Circuit U.S. Court of Appeals holding that the state violated the Establishment Clause of the First Amendment stands and the crosses on public property will have to come down.
The Utah Highway Patrol Association (UHPA), with the permission of the state of Utah, erected twelve crosses on public property to memorialize fallen Utah Highway Patrolmen. Represented by the alliance Defense Fund, UHPA said that the crosses are secular symbols that â€œconvey the nonreligious messages of individualized commemoration and roadway safety.â€ (I bet you won’t find the Christian cross as a safety symbol in Utah’s drivers manual.) With good reason, the appeals court found that the Latin cross is the preeminent symbol of Christianity and that a reasonable observer would see the crosses as endorsements of religion.
A couple of points are worth noting. First, Justice Thomas was the lone justice voting to hear the case. Four justices must vote in favor of hearing the case for the Court to put it on its docket for oral argument. In his dissenting opinion, Justice Thomas said that the Court should take the case in order to “provide clarity to an Establishment Clause jurisprudence in shambles.”Â While disagreement among the circuits is a major reason for the Supreme Court agreeing to hear a case, perhaps in this case it is the reason that the Court voted not to hear the case. It may well be that the Court is too split at this time to provide the clarification the Justice Thomas is seeking. And I might add that Justice Thomas’s views on church-state matters are among the most divisive.
Second, the Court may have declined to take the case for tactical and strategic reasons. Tactically, the Court last term decided the case of Salazar v. Buono involving a Christian cross in the Mojave National Preserve in California. The Court split 5-4 in that case and sent it back for further proceedings. In one sense, then, it may be too soon to hear another “cross case.”
But strategically, several Christian Right justices may well have an eye on a 9th Circuit cross caseÂ — Jewish War Veterans v. City of San Diego – that they would prefer to hear. That case involves a 43-feet high Christian cross atop Mount Soledad. Perhaps these justices were willing to sacrifice the Utah case for the bigger fish — the Mount Soledad cross. In short, three cross cases in such a short period would be too big a burden for the Court to bare.
If Justice Thomas wants clarification of the Establishment Clause, I recommend that he take a stroll down memory lane sixty-four years to remind himself of Justice Black’s majority opinion in Everson v. Board of Education (1947): “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”
Bob Ritter / JM Center