Of Two Minds At Once
It takes four Justices of the U.S. Supreme Court to bring a case onto the docket. Typically when fewer than four indicate they want to review a case, the case dies a quiet death and no one pays attention. It’s very unusual for a denial of Supreme Court review to garner national attention, and it’s even more unusual for a member of the Court to indicate a belief that the Brethren have erred by not hearing a particular case. But that’s what happened Monday.
About a year and a half ago, I questioned the political advisability of American Atheists challenging the use of roadside crosses to commemorate the deaths of Utah Highway Patrolmen. I did opine that on the law, the crosses were an Establishment Clause violation, and ultimately, the Tenth Circuit agreed with me despite a tense period of time in which the law appeared to read that the Latin cross could be at once a symbol of Christianity and a non-religious symbol. But I feared that the Supreme Court would use the case as an opportunity to narrow rather than expand the Establishment Clause, based upon the extraordinary sympathies involved in this particular display of religious symbology.
Along the way, I learned that the LDS church does not use the Latin cross as a symbol of religious veneration. Before that, I had no idea of that.
And now, the Supreme Court has denied certiorari, indicating that at least six of the Justices are content to leave the law where it is — Utah can use the roadside to allow commemoration of fallen officers, but they have to use obelisks, signs, police shields, or other symbols that are not inherently religious. But the interesting thing about the Supreme Court not granting certiorari on this case was that Clarence Thomas dissented from that decision.
As one bit of interesting trivia, Justice Thomas indicates that Mormons are 57% of the population of Utah. I had thought the percentage was higher.
Dissenting from a denial of certiorari seems a bit like spitting into the wind. But Justice Thomas makes some interesting points in a direct and worthwhile read. Now, I do not share Justice Thomas’ views on the Establishment Clause. He does not think it has been incorporated to the states, and he rejects both the Lemon test and the endorsement test as valid means of determining when an Establishment Clause violation has taken place.
Justice Thomas’ criticism of those tests is that they are too subjective and too likely to result in varying results with no particularly clear rule of jurisprudence for courts, legislatures, and citizens to understand. They do not provide guidance and in his mind they obscure rather than clarify the meaning of the Establishment Clause. He also thinks that the test results would compel people to simply exclude references to religion from any sort of public activity, and in his opinion that is not what the Establishment Clause demands.
Now, I disagree with that. I think endorsement is the appropriate thing to look at. That’s not really what I’m trying to argue here, although obviously that’s a relevant sort of issue. What is interesting, though, is that Thomas articulates something that I’ve long thought: “Establishment Clause jurisprudence [is a] shambles.” There is no clear way to understand whether the Lemon test remains viable, whether the endorsement test and the Lemon test are the same thing or whether the endorsement test is law along with Lemon, whether the coercion test applies, whether the narrow interpretation of the Establishment Clause favored by advocates of religion is right, whether the Founders’ generally pro-religious views should be given weight in addressing contemoprary issues.
It certainly looks odd when on the same day a display of the Decalogue on government property in Texas is given the green light but a much less ostentatious display of the Decalogue on government property in Kentucky is called a Constitutional violation. I think Thomas’ emphasis on the content of a display alone is perhaps a bit narrow, but on the other hand, he’s right to point out that the existing jurisprudence has turned Federal judges into art critics and that is probably not appropriate.
While I might propose a different restatement of the law of Establishment than Justice Thomas, I think he’s right that the law is in need of restatement here. If this is the sort of issue which interests you, his opinion is well worth a read.