Posted Oct 31, 2011 03:43 pm CDT
Justice Clarence Thomas sees a lost opportunity to “provide clarity to an establishment clause jurisprudence in shambles” in the U.S. Supreme Court’s refusal today to take up a case involving crosses beside a highway.
Thomas dissented (PDF) from the cert denial. At issue is whether privately financed roadside crosses erected to honor fallen highway patrol officers in Utah violate the establishment clause.
A nonprofit group raised private funds to finance 13 crosses, placed where officers had been killed, including alongside highways. The state had granted permission in a permit that said it neither approved nor disapproved of the memorial markers.
The Denver-based 10th U.S. Circuit Court of Appeals had found an establishment clause violation. According to Thomas, “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.’ … Because our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess, I would grant certiorari.”