In Utah Highway Patrol Association v. American Atheists, Inc., 565 U.S. 994 (2011) the United States Supreme Court refused to hear an appeal from the Utah Highway Patrol Association, which had sponsored efforts to post white roadside crosses on the side of highways to memorialize slain police officers. 

However, Justice Clarence Thomas wrote an opinion, dissenting from the denial of certiorari expressing concern over an Establishment Clause jurisprudence he termed “nebulous” and described as “in shambles.”

Atheists organization protests highway patrol's roadside crosses

In 1998, the Utah Highway Patrol began posting white crosses on roadsides.  American Atheists, Inc. and some of its members sued several state officials, contending that these cross memorials posted on government property violated the Establishment Clause.

The Utah Highway Patrol intervened to defend the memorials. A federal district court granted summary judgment in favor of Utah Highway Patrol Association.

10th Circuit rules crosses violate establishment clause of First Amendment

On appeal, the Tenth Circuit Court of Appeals reversed in American Atheists, Inc. v. Duncan (2010).  The Tenth Circuit applied the Lemon test from Lemon v. Kurtzman (1971) and the endorsement analysis from Justice Sandra Day O’Connor’s concurring opinion in Lynch v. Donnelly (1984).   

The appeals court noted that there was a secular purpose for the crosses, but ruled that it violated the primary effects prong of the Lemon test, because a reasonable observer would find that the state was endorsing or promoting religion.  Many lower courts meld the endorsement analysis into the effects prong of the Lemon test. 

Justice Thomas urges for cleanup of establishment clause jurisprudence

After the Utah Highway Association unsuccessfully petitioned for en banc, or full panel review, they petitioned for review by the U.S. Supreme Court.  As mentioned, the Court denied review, but Justice Thomas explained in a separate opinion why the Court should have taken the case.

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,” Thomas wrote.  “Some of our cases have simply ignored the Lemon or Lemon/endorsement formulations.”

He also wrote that both the Lemon test and the endorsement test were “utterly indeterminate” and caused courts to reach “inconsistent results.”  He noted that five of his sitting colleagues had criticized either test in prior opinions.   

Thomas believed the Court needed to review the case to “clean up our mess.”

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.

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