Utah Highway Patrol v. American Atheists, Inc. ( 2011 )

Cite as: 565 U. S. ____ (2011) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
UTAH HIGHWAY PATROL ASSOCIATION
10–1276 v.
AMERICAN ATHEISTS, INC., ET AL.
LANCE DAVENPORT ET AL.
10–1297 v.
AMERICAN ATHEISTS, INC., ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Nos. 10–1276 and 10–1297. Decided October 31, 2011
The petitions for writs of certiorari are denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
Today the Court rejects an opportunity to provide clarity
to an Establishment Clause jurisprudence in shambles. A
sharply divided Court of Appeals for the Tenth 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 Tenth 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.” See Van Orden v.
Perry, 545 U. S. 677, 696, 697 (2005) (THOMAS, J., concur­
ring). 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.
I
The Utah Highway Patrol Association (Association) is a
private organization dedicated to supporting Utah High­
2 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
way Patrol officers and their families.1 In 1998, the Asso­
ciation began commemorating officers who died in the line
of duty by placing memorials, in the form of 12- by 6-foot
white crosses, at or near locations where the officers were
killed. The fallen officer’s name, rank, and badge number
are 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 of­
ficer’s death, and a plaque displaying the officer’s picture,
his biographical information, and details of his death. To
date, the Association has erected 13 cross memorials.
The Association chose the cross because it believed that
crosses are used both generally in cemeteries to commem­
orate the dead and specifically by uniformed services to
memorialize those who died in the line of duty. The Asso­
ciation also believed that only the cross effectively and
simultaneously conveyed the messages of death, honor,
remembrance, gratitude, sacrifice, and safety that the Asso­
ciation wished to communicate to the public. Surviving
family members of the fallen officers approved each
memorial, and no family ever requested that the Associa­
tion use a symbol other than the cross.
The private Association designed, funded, owns, and
maintains the memorials. To ensure that the memorials
would be visible to the public, safe to view, and near the
spot of the officers’ deaths, the Association requested and
received permission from the State of Utah to erect some
of the memorials on roadside public rights-of-way, at rest
areas, and on the lawn of the Utah Highway Patrol office.
In the permit, the State expressed that it “neither ap­
proves or disapproves the memorial marker.” Brief in
Opposition 3, n. 3 (internal quotation marks omitted).
Respondents, American Atheists, Inc., and some of its
——————
1 These cases were decided on a motion for summary judgment.
These facts are undisputed.
Cite as: 565 U. S. ____ (2011) 3
THOMAS, J., dissenting
members, sued several state officials, alleging that the
State violated the Establishment Clause of the First
Amendment, as incorporated by the Fourteenth Amend­
ment, because most of the crosses were on state property
and all of the crosses bore the Utah Highway Patrol’s
symbol. The Association, a petitioner along with the state
officials in this Court, intervened to defend the memorials.
The District Court granted summary judgment in favor of
petitioners.
A panel of the Tenth Circuit reversed. As an initial
matter, the panel noted that this Court remains “sharply
divided on the standard governing Establishment Clause
cases.” American Atheists, Inc. v. Duncan, 616 F. 3d 1145,
1156 (2010). The panel therefore looked to Circuit prece­
dent to determine the applicable standard and then ap­
plied the so-called “Lemon/endorsement test,” which asks
whether the challenged governmental practice has the
actual purpose of endorsing religion or whether it has that
effect from the perspective of a “reasonable observer.” Id.,
at 1157; see County of Allegheny v. American Civil Lib-
erties Union, Greater Pittsburgh Chapter, 492 U. S.
573, 592–594 (1989) (modifying the three-pronged test of
Lemon v. Kurtzman, 403 U. S. 602 (1971), which considered
whether a government action has a secular purpose, has
the primary effect of advancing or inhibiting religion, or
fosters an excessive entanglement between government
and religion). The court concluded that, even though the
cross memorials had a secular purpose, they would none­
theless “convey to a reasonable observer that the state of
Utah is endorsing Christianity.” 616 F. 3d, at 1160. This
was so, the court concluded, because a cross is “the
preeminent symbol of Christianity,” and the crosses stood
alone, on public land, bearing the Utah Highway Patrol’s
emblem. Ibid. According to the panel, none of the other
“contextualizing facts” sufficiently reduced the memorials’
message of religious endorsement. Id., at 1161.
4 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
The Tenth Circuit denied rehearing en banc, with four
judges dissenting. The dissenters criticized the panel for
presuming that the crosses were unconstitutional and
then asking whether contextual factors were sufficient to
rebut that presumption. Instead, the dissenters argued,
the panel should have considered whether the crosses
amounted to an endorsement of religion in the first place
in light of their physical characteristics, location near the
site of the officer’s death, commemorative purpose, selec­
tion by surviving family members, and disavowal by the
State. 637 F. 3d 1095, 1103–1105 (2010) (opinion of Kelly,
J.). The dissenters also criticized the panel’s “unreasona­
ble ‘reasonable observer,’ ” id., at 1104, describing him as
“biased, replete with foibles, and prone to mistake,” id.,
at 1108 (opinion of Gorsuch, J.). Noting that the court
“continue[d] to apply (or misapply) a reasonable observer/
endorsement test that has come under much recent
scrutiny,” the dissenters emphasized that the panel’s
decision was “worthy of review.” Id., at 1109–1110 (same).
II
Unsurprisingly, the Tenth Circuit relied on its own
precedent, rather than on any of this Court’s cases, when
it selected the Lemon/endorsement test as its governing
analysis. Our jurisprudence provides no principled ba-
sis by which a lower court could discern whether
Lemon/endorsement, or some other test, should apply in
Establishment Clause cases. Some of our cases have simply
ignored the Lemon or Lemon/endorsement formulations.
See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002);
Good News Club v. Milford Central School, 533 U. S. 98(2001); Marsh v. Chambers, 463 U. S. 783 (1983). Other
decisions have indicated that the Lemon/endorsement test
is useful, but not binding. Lynch v. Donnelly, 465 U. S.
668, 679 (1984) (despite Lemon’s usefulness, we are “un­
willin[g] to be confined to any single test or criterion in
Cite as: 565 U. S. ____ (2011) 5
THOMAS, J., dissenting
this sensitive area”); Hunt v. McNair, 413 U. S. 734, 741
(1973) (Lemon provides “no more than helpful signposts”).
Most recently, in Van Orden, 545 U. S. 677, a majority of
the Court declined to apply the Lemon/endorsement test in
upholding a Ten Commandments monument located on
the grounds of a state capitol.2 Yet in another case decid­
ed the same day, McCreary County v. American Civil
Liberties Union of Ky., 545 U. S. 844, 859–866 (2005), 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.
See also Van Orden, supra, at 692 (SCALIA, J., concurring)
(“I join the opinion of THE CHIEF JUSTICE because I think
it accurately reflects our current Establishment Clause
jurisprudence—or at least the Establishment Clause
jurisprudence we currently apply some of the time”).
Thus, the Lemon/endorsement test continues to “stal[k]
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.” Lamb’s Chapel v. Center Moriches Union
Free School Dist., 508 U. S. 384, 398 (1993) (SCALIA, J.,
concurring in judgment).
Since Van Orden and McCreary, lower courts have
understandably expressed confusion. See American Civil
Liberties Union of Ky. v. Mercer Cty., 432 F. 3d 624, 636
——————
2 In Van Orden, a plurality determined that the nature of a govern­
ment display and our Nation’s historical traditions should control. 545
U. S., at 686; see also ibid. (“Whatever may be the fate of the Lemon
test in the larger scheme of Establishment Clause jurisprudence, we
think it not useful in dealing with the sort of passive monument that
Texas has erected”). In a concurring opinion, JUSTICE BREYER consid­
ered the “basic purposes of the First Amendment’s Religion Clauses
themselves” rather than “a literal application of any particular test.”
Id., at 703–704 (opinion concurring in judgment); see also id., at 700
(“[I]n [difficult borderline] cases, I see no test-related substitute for the
exercise of legal judgment”).
6 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
(CA6 2005) (after McCreary and Van Orden, “we remain in
Establishment Clause purgatory”).3 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.4 Others have followed Van
——————
3 See also Green v. Haskell Cty. Bd. of Comm’rs, 574 F. 3d 1235, 1235
n. 1 (CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc)
(noting that “[w]hether Lemon . . . and its progeny actually create
discernable ‘tests,’ rather than a mere ad hoc patchwork, is debatable”
and describing the “judicial morass resulting from the Supreme Court’s
opinions”); Card v. Everett, 520 F. 3d 1009, 1016 (CA9 2008) (“Con­
founded by the ten individual opinions in [McCreary and Van Orden]
. . . courts have described the current state of the law as both ‘Estab­
lishment Clause purgatory’ and ‘Limbo’ ” (citation omitted)); id., at
1023–1024 (Fernandez, J., concurring) (applauding the majority’s
“heroic attempt to create a new world of useful principle out of the
Supreme Court’s dark materials” and lamenting the “still stalking
Lemon test and the other tests and factors, which have floated to the
top of this chaotic ocean from time to time,” as “so indefinite and
unhelpful that Establishment Clause jurisprudence has not become
more fathomable” (footnote omitted)); Skoros v. New York, 437 F. 3d 1,
13 (CA2 2006) (“[W]e confront the challenge of frequently splintered
Supreme Court decisions” and Justices who “have rarely agreed—in
either analysis or outcome—in distinguishing the permissible from the
impermissible public display of symbols having some religious signifi­
cance”); Staley v. Harris Cty., 461 F. 3d 504, 515 (2006), (Smith, J.,
dissenting) (admonishing the majority for failing to “integrate
McCreary and Van Orden into as coherent a framework as possible”),
dism’d as moot on rehearing en banc, 485 F. 3d 305 (CA5 2007).
4 See American Civil Liberties Union of Ohio Foundation, Inc. v.
DeWeese, 633 F. 3d 424, 431 (CA6 2011) (applying Lemon); Green v.
Haskell Cty. Bd. of Comm’rs, 568 F. 3d 784, 797–798, and n. 8 (CA10
2009) (“While the Supreme Court may be free to ignore Lemon, this
court is not. Therefore, we cannot . . . be guided in our analysis by
the Van Orden plurality’s disregard of the Lemon test” (citations and
internal quotation marks omitted)); Skoros, supra, at 17, and n. 13
(“The Lemon test has been much criticized over its twenty-five year
history. Nevertheless, the Supreme Court has never specifically
disavowed Lemon’s analytic framework. . . . Accordingly, we apply
Lemon” (citations omitted)); American Civil Liberties Union of Ky. v.
Cite as: 565 U. S. ____ (2011) 7
THOMAS, J., dissenting
Orden.5 One Circuit, in a case later dismissed as moot,
applied both tests.6
Respondents assure us that any perceived conflict is
“artificial,” Brief in Opposition 8, because the lower courts
have quite properly applied Van Orden to “the distinct
class of Ten Commandments cases” indistinguishable from
Van Orden and have applied the Lemon/endorsement test
to other religious displays. Id., at 12, 16. But respond­
ents’ “Ten Commandments” rule is nothing more than a
thinly veiled attempt to attribute reason and order where
none exists. Respondents offer no principled basis for
applying one test to the Ten Commandments and another
test to other religious displays that may have similar
relevance to our legal and historical traditions. Indeed,
that respondents defend the purportedly uniform applica­
tion of one Establishment Clause standard to the “Ten
Commandments’ realm” and another standard to displays
of other religious imagery, id., at 16, speaks volumes
about the superficiality and irrationality of a jurispru­
dence meant to assess whether government has made a
——————
Mercer Cty., 432 F. 3d 624, 636 (CA6 2005) (“Because McCreary County
and Van Orden do not instruct otherwise, we must continue to” apply
“Lemon, including the endorsement test”).
5 See Card, supra, at 1018 (applying JUSTICE BREYER’s concurring
opinion in Van Orden, which “carv[ed] out an exception” from Lemon
for certain displays); ACLU Neb. Foundation v. Plattsmouth, 419 F. 3d
772, 778, n. 8 (CA8 2005) (en banc) (“Taking our cue from Chief Justice
Rehnquist’s opinion for the Court and Justice Breyer’s concurring
opinion in Van Orden, we do not apply the Lemon test”); see also Trunk
v. San Diego, 629 F. 3d 1099, 1107 (CA9 2011) (JUSTICE BREYER’s
controlling opinion in Van Orden “establishes an ‘exception’ to the
Lemon test in certain borderline cases,” but “we need not resolve the
issue of whether Lemon or Van Orden control” because “both cases
guide us to the same result”).
6 See Staley, supra, at 508–509, and n. 6 (applying Lemon/
endorsement and JUSTICE BREYER’s concurrence in Van Orden after
concluding that the objective observer standard of the endorsement test
was “implicit” in JUSTICE BREYER’s opinion).
8 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
law “respecting an establishment of religion.” See Card v.
Everett, 520 F. 3d 1009, 1016 (CA9 2008) (describing
“Recent Developments in Ten Commandments Law”). But
even assuming that the lower courts uniformly under­
stand Van Orden to apply only to those religious displays
“factually indistinguishable” from the display in Van
Orden, Brief in Opposition 16, that understanding con­
flicts with JUSTICE BREYER’s controlling opinion. JUSTICE
BREYER’s concurrence concluded that there is “no test­
related substitute for the exercise of legal judgment” or
“exact formula” in “fact-intensive,” “difficult borderline
cases.” 545 U. S., at 700 (opinion concurring in judgment).
Nothing in his opinion indicated that only Ten Com­
mandments displays identical to the one in Van Orden call
for a departure from the Lemon/endorsement test.
Moreover, the lower courts have not neatly confined Van
Orden to similar Ten Commandments displays. In Myers
v. Loudoun Cty. Public Schools, 418 F. 3d 395, 402, and
n. 8 (2005), the Fourth Circuit applied the Van Orden
plurality opinion and JUSTICE BREYER’s concurring analy­
sis to resolve an Establishment Clause challenge to a
statute mandating recitation of the Pledge of Allegiance.
In Staley v. Harris Cty., 461 F. 3d 504, 511–512 (2006),
dism’d as moot on rehearing en banc, 485 F. 3d 305 (2007),
the Fifth Circuit applied Van Orden to a monument dis­
playing an open bible. And, in Green v. Haskell Cty. Bd. of
Comm’rs, 568 F. 3d 784, 796–797 (2009), the Tenth Circuit
applied the Lemon/endorsement test to hold unconstitu­
tional a Ten Commandments monument located on the
grounds of a public building and surrounded by other
secular monuments, facts materially indistinguishable
from those in Van Orden.
Respondents further suggest that any variation among
the Circuits concerning the Establishment Clause stand­
ard for displays of religious imagery is merely academic,
for much like the traditional Lemon/endorsement inquiry,
Cite as: 565 U. S. ____ (2011) 9
THOMAS, J., dissenting
JUSTICE BREYER’s opinion in Van Orden considered the
“context of the display” and the “message” it communicat­
ed. Brief in Opposition 8–12, and n. 5 (internal quotation
marks omitted); see Van Orden, 545 U. S., at 701–702
(BREYER, J., concurring in judgment); id., at 703 (“For
these reasons, I believe that the Texas display . . . might
satisfy this Court’s more formal Establishment Clause
tests”). I do not doubt that a given court could reach the
same result under either test. See ACLU Neb. Foundation
v. Plattsmouth, 419 F. 3d 772, 778, n. 8 (CA8 2005) (en
banc) (upholding the constitutionality of a display of the
Ten Commandments under either standard); Trunk v. San
Diego, 629 F. 3d 1099, 1107, 1125 (CA9 2011) (concluding
that the display of a cross was unconstitutional under
either standard). The problem is that both tests are so
utterly indeterminate that they permit different courts to
reach inconsistent results. Compare Harris v. Zion, 927
F. 2d 1401 (CA7 1991) (applying Lemon/endorsement to
strike down a city seal bearing a depiction of a cross), with
Murray v. Austin, 947 F. 2d 147 (CA5 1991) (applying
Lemon/endorsement to uphold a city seal bearing a depic­
tion of a cross); compare also Plattsmouth, supra (applying
Van Orden to uphold a display of the Ten Command­
ments), with Staley, supra (applying Van Orden to strike
down a display of a Bible). As explained below, it is “the
very ‘flexibility’ of this Court’s Establishment Clause
precedent” that “leaves it incapable of consistent applica­
tion.” Van Orden, supra, at 697 (THOMAS, J., concurring).
III
In Allegheny, a majority of the Court took the view that
the endorsement test provides a “sound analytical frame­
work for evaluating governmental use of religious sym­
bols.” 492 U. S., at 595 (opinion of Blackmun, J.); id., at
629 (O’Connor, J., concurring in part and concurring in
judgment) (“I . . . remain convinced that the endorsement
10 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
test is capable of consistent application”). That confidence
was misplaced. Indeed, JUSTICE KENNEDY proved presci­
ent when he observed that the endorsement test amounted
to “unguided examination of marginalia,” “using little
more than intuition and a tape measure.” Id., at 675–676
(opinion concurring in judgment in part and dissenting
in part).
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.
Compare id., at 579–581 (opinion of Blackmun, J.) (hold­
ing 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 (internal quotation marks omitted), and
Smith v. County of Albemarle, 895 F. 2d 953, 955, and n. 2
(CA4 1990) (holding 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 build­
ing), with Lynch, 465 U. S., at 671 (upholding a creche
displaying 5-inch to 5-foot tall figures of Jesus, Mary,
Joseph, angels, shepherds, kings, and animals, surround­
ed 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 rea[d] ‘SEASONS
GREETINGS,’ ” situated in a park in the “heart of the
shopping district”), American Civil Liberties Union of Ky.
v. Wilkinson, 895 F. 2d 1098, 1099, 1104 (CA6 1990) (up­
holding 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
Cite as: 565 U. S. ____ (2011) 11
THOMAS, J., dissenting
crèche,” bearing a disclaimer stating that “ ‘This display
. . . does not constitute an endorsement by the Common­
wealth of any religion,’ ” and located on the grounds of the
state capitol, 100 yards from a Christmas tree), and Elew-
ski v. Syracuse, 123 F. 3d 51, 52 (CA2 1997) (upholding a
solitary creche, raised on a platform “two feet above side­
walk level,” containing “statues representing Jesus, Mary,
and Joseph, a shepherd, a donkey, a lamb, and an angel”
holding a banner reading “ ‘Gloria in Excelsis Deo,’ ” “illu­
minated at night by two forty-watt spotlights” located in a
park on a “major downtown thoroughfare,” 300 feet from
a menorah and down the street from secular holiday
symbols).
Likewise, a menorah displayed on government property
violates the Establishment Clause, except when it doesn’t.
Compare Kaplan v. Burlington, 891 F. 2d 1024, 1026, 1030
(CA2 1989) (holding unconstitutional a solitary 16- by 12­
foot menorah, bearing a sign stating “ ‘Happy Chanukah’ ”
and “ ‘Sponsored by: Lubavitch of Vermont,’ ” located 60
feet away from City Hall, and “appear[ing] superimposed
upon City Hall” when viewed from “the general direction
of the westerly public street”), with Allegheny, supra, at
587, 582 (opinion of Blackmun, J.) (upholding an “18-foot
Chanukah menorah of an abstract tree-and-branch de­
sign,” placed next to a 45-foot Christmas tree, bearing a
sign entitled “ ‘Salute to Liberty,’ ” and located outside of a
city-county building), and Skoros v. New York, 437 F. 3d 1(CA2 2006) (upholding school policy permitting display of
menorah along with the Islamic star and crescent, the
Kwanzaa kinara, the Hebrew dreidel, and a Christmas
tree, but prohibiting a creche).
A display of the Ten Commandments on government
property also violates the Establishment Clause, except
when it doesn’t. Compare Green, 568 F. 3d, at 790 (hold­
ing unconstitutional a monument depicting the Ten Com­
mandments and the Mayflower Compact on the lawn of a
12 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
county courthouse, among various secular monuments and
personal message bricks, with a sign stating “ ‘Erected by
Citizens of Haskell County’ ”), and American Civil Liber-
ties Union of Ohio Foundation, Inc. v. DeWeese, 633 F. 3d
424, 435 (CA6 2011) (holding unconstitutional a poster of
the Ten Commandments and “seven secular ‘Humanist
Precepts’ ” in a courtroom, with “editorial comments” that
link religion and secular government), with Van Orden,
545 U. S., at 681–682 (plurality opinion) (upholding a
monument depicting the Ten Commandments, the Eye of
Providence, an eagle, and the American flag and bearing a
sign stating that it was “ ‘Presented . . . by the Fraternal
Order of Eagles,’ ” among various secular monuments, on
the grounds of a state capitol (some capitalization omit­
ted)), Card, 520 F. 3d 1009 (same, on the grounds of old
city hall), Plattsmouth, 419 F. 3d, at 778, n. 8 (same, in a
city park), and Mercer Cty., 432 F. 3d, at 633 (upholding a
poster of the Ten Commandments, along with eight other
equally sized “American legal documents” and an explana­
tion of the Commandments’ historical significance, in a
courthouse).
Finally, a cross displayed on government property vio­
lates the Establishment Clause, as the Tenth Circuit held
here, except when it doesn’t. Compare Friedman v. Board
of Cty., Comm’rs of Bernalillo Cty., 781 F. 2d 777, 779
(CA10 1985) (holding unconstitutional a county seal dis­
playing a Latin cross, “highlighted by white edging and a
blaze of golden light,” under the motto “ ‘With This We
Conquer’ ” written in Spanish), Harris, 927 F. 2d, at 1404(holding unconstitutional one city seal displaying a cross
on a shield, surrounded by a dove, crown, scepter, and a
banner proclaiming “ ‘God Reigns,’ ” and another city seal
displaying a cross surrounded by a one-story building, a
water tower, two industrial buildings, and a leaf), and
Trunk, 629 F. 3d 1099 (holding unconstitutional a 29- by
12-foot cross atop a 14-foot high base on the top of a hill,
Cite as: 565 U. S. ____ (2011) 13
THOMAS, J., dissenting
surrounded by thousands of stone plaques honoring mili­
tary personnel and the American flag), with Murray, 947
F. 2d 147 (upholding a Latin cross, surrounded by a pair of
wings, in a city insignia), and Weinbaum v. Las Cruces,
541 F. 3d 1017, 1025 (CA10 2008) (upholding “three inter­
locking crosses,” with a white, slightly taller center cross,
surrounded by a sun symbol, in a city insignia, as well as
a cross sculpture outside of a city sports complex and a
mural of crosses on an elementary school wall). See also
Salazar v. Buono, 559 U. S. ___, ___ (2010) (plurality
opinion) (slip op., at 14–15) (“A cross by the side of a public
highway marking, for instance, the place where a state
trooper perished need not be taken as a statement of
governmental support for sectarian beliefs”).
One might be forgiven for failing to discern a workable
principle that explains these wildly divergent outcomes.
Such arbitrariness is the product of an Establishment
Clause jurisprudence that does nothing to constrain judi­
cial discretion, but instead asks, based on terms like “con­
text” and “message,” whether a hypothetical reasonable
observer of a religious display could think that the gov­
ernment has made a law “respecting an establishment of
religion.”7 Whether a given court’s hypothetical observer
will be “any beholder (no matter how unknowledgeable), or
the average beholder, or . . . the ‘ultra-reasonable’ behold­
er,” Capitol Square Review and Advisory Bd. v. Pinette,
515 U. S. 753, 769, n. 3 (1995) (plurality opinion), is en­
——————
7 That a violation of the Establishment Clause turns on an observer’s
potentially mistaken belief that the government has violated the Con­
stitution, rather than on whether the government has in fact done
so, is perhaps the best evidence that our Establishment Clause juris­
prudence has gone hopelessly awry. See McCreary County v. American
Civil Liberties Union of Ky., 545 U. S. 844, 901 (2005) (SCALIA, J.,
dissenting) (describing the “oddity” that “the legitimacy of a govern­
ment action with a wholly secular effect would turn on the mispercep-
tion of an imaginary observer”).
14 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
tirely unpredictable. Indeed, the Tenth Circuit stated
below that its observer, although not “omniscient,” would
“know far more than most actual members of a given
community,” and then unhelpfully concluded that “[h]ow
much information we will impute to a reasonable observer
is unclear.” 616 F. 3d, at 1159 (internal quotation marks
omitted). But even assuming that courts could employ
observers of similar insight and eyesight, it is “unrealistic
to expect different judges . . . to reach consistent answers
as to what any beholder, the average beholder, or the
ultrareasonable beholder (as the case may be) would
think.” Pinette, supra, at 769, n. 3.
IV
It comes as no surprise, then, that despite other cases
holding that the combination of a Latin cross and a public
insignia on public property does not convey a message of
religious endorsement, see Murray, supra; Weinbaum,
supra, the Tenth Circuit held otherwise. And, of course,
the Tenth Circuit divided over what, exactly, a reasonable
observer would think about the Association’s memorial
cross program.
First, the members of the court disagreed as to what a
reasonable observer would see. According to the panel,
because the observer would be “driving by one of the me­
morial crosses at 55-plus miles per hour,” he would not see
the fallen officer’s biographical information, but he would
see that the “cross conspicuously bears the imprimatur of
a state entity . . . and is found primarily on public land.”
616 F. 3d, at 1160. According to the dissenters, on the
other hand, if the traveling observer could see the police
insignia on the cross, he should also see the much larger
name, rank, and badge number of the fallen officer embla­
zoned above it. 637 F. 3d, at 1108–1109 (opinion of Gor­
such, J.); id., at 1104 (opinion of Kelly, J.). The dissenters
would also have employed an observer who was able to
Cite as: 565 U. S. ____ (2011) 15
THOMAS, J., dissenting
pull over and view the crosses more thoroughly and would
have allowed their observer to view four of the memorials
located on side-streets with lower speed limits. Id., at
1109 (opinion of Gorsuch, J.).
Next, the members of the court disagreed about what a
reasonable observer would feel. The panel worried that
the use of a Christian symbol to memorialize fallen officers
would cause the observer to think the Utah Highway
Patrol and Christianity had “some connection,” leading
him to “fear that Christians are likely to receive preferen­
tial treatment from the [patrol]—both in their hiring
practices and, more generally, in the treatment that peo­
ple may expect to receive on Utah’s highways.” 616 F. 3d,
at 1160. The dissenters’ reasonable observer, however,
would not take such a “paranoid,” “conspiratorial view of
life,” “conjur[ing] up fears of religious discrimination” by a
“ ‘Christian police,’ ” especially in light of the more plausi­
ble explanation that the crosses were simply memorials.
637 F. 3d, at 1105 (opinion of Kelly, J.). The panel also
emphasized that the “massive size” of these crosses would
heighten the reasonable observer’s fear of discrimination
and proselytization, unlike the “more humble spirit of
small roadside crosses.” 616 F. 3d, at 1161–1162. The
dissenters, by contrast, insisted that the size of the crosses
was necessary to ensure that the reasonable observer
would “take notice of the display and absorb its message”
of remembrance and to ensure that the crosses could
contain all of the secular facts necessary to assuage the
reasonable observer’s fears. 637 F. 3d, at 1105–1106
(opinion of Kelly, J.).
Finally, the members of the court disputed what the
reasonable observer would know. The panel acknowledged
that the reasonable observer would recognize that the
crosses commemorated death, but he would see only that
the symbol “memorializes the death of a Christian.” 616
F. 3d, at 1161. That the designers of the cross memorials
16 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
were Mormons, or that Christians who revere the cross are
a minority in Utah, would have no effect on him. Id.,at 1163–1164. Conversely, the dissenters’ reasonable
observer would have known that the crosses were chosen
by the fallen officer’s family and erected by a private group
without design approval from the State, and that most
Utahns do not revere the cross.8 637 F. 3d, at 1110 (opin­
ion of Gorsuch, J.); id., at 1105 (opinion of Kelly, J.).
To any truly “reasonable observer,” these lines of disa­
greement may seem arbitrary at best. But to be fair to the
Tenth Circuit, it is our Establishment Clause jurispru­
dence that invites this type of erratic, selective analysis of
the constitutionality of religious imagery on government
property. These cases thus illustrate why “[t]he outcome
of constitutional cases ought to rest on firmer grounds
than the personal preferences of judges.” Van Orden, 545
U. S., at 697 (THOMAS, J., concurring).
V
Even if the Court does not share my view that the Es­
tablishment Clause restrains only the Federal Govern­
ment, and that, even if incorporated, the Clause only
prohibits “ ‘actual legal coercion,’ ” see id., at 693, the
Court should be deeply troubled by what its Establish­
ment Clause jurisprudence has wrought. Indeed, five
sitting Justices have questioned or decried the Lemon/
endorsement test’s continued use. Salazar, 559 U. S.,
at ___–___ (plurality opinion of KENNEDY, J., joined in full
by ROBERTS, C. J., and in part by ALITO, J.) (slip op., at
15–18) (emphasizing criticism of the endorsement test and
——————
8 According to the statement of undisputed facts before the District
Court, approximately 57 percent of Utahns are members of the Church
of Jesus Christ of Latter-day Saints. Neither the Church nor its
members use the cross as a symbol of their religion or in their religious
practices. American Atheists, Inc. v. Duncan, 528 F. Supp. 2d 1245,
1249 (Utah 2007).
Cite as: 565 U. S. ____ (2011) 17
THOMAS, J., dissenting
its workability); id., at ___ (ALITO, J., concurring in part
and concurring in judgment) (slip op., at 6) (“Assuming
that it is appropriate to apply the so-called ‘endorsement
test,’ this test would not be violated [here]”); Pinette, 515
U. S., at 768, n. 3 (plurality opinion of SCALIA, J.) (The
endorsement test “supplies no standard whatsoever”); Van
Orden, supra, at 692–693 (THOMAS, J., concurring) (“This
case would be easy if the Court were willing to abandon
the inconsistent guideposts it has adopted for addressing
Establishment Clause challenges,” citing, inter alia, the
Lemon and endorsement tests); Allegheny, 492 U. S., at
669 (KENNEDY, J., concurring in judgment in part and
dissenting in part) (“[T]he endorsement test is flawed in
its fundamentals and unworkable in practice”); see also
McCreary County, 545 U. S., at 890 (2005) (SCALIA, J.,
joined in full by Rehnquist, C. J., and THOMAS, J., and in
part by KENNEDY, J., dissenting) (“[A] majority of the
Justices on the current Court . . . have, in separate opin­
ions, repudiated the brain-spun ‘Lemon test’ ”).
And yet, six years after Van Orden, our Establishment
Clause precedents remain impenetrable, and the lower
courts’ decisions—including the Tenth Circuit’s decision
below—remain incapable of coherent explanation. It is
difficult to imagine an area of the law more in need of
clarity, as the 46 amici curiae who filed briefs in support
of certiorari confirm. Respondents tell us there is no
reason to think that a case with facts similar to this one
will recur, Brief in Opposition 17, but if that counsels
against certiorari here, this Court will never again hear
another case involving an Establishment Clause challenge
to a religious display. It is this Court’s precedent that has
rendered even the most minute aesthetic details of a
religious display relevant to the constitutional question.
We should not now abdicate our responsibility to clean up
our mess because these disputes, by our own making, are
18 UTAH HIGHWAY PATROL ASSN. v. AMERICAN
ATHEISTS, INC.
THOMAS, J., dissenting
“factbound.”9 This suit, which squarely implicates the
viability and application of the Lemon/endorsement test,10
is as ripe a suit for certiorari as any.11
——————
9 In any event, respondents’ incredible assertion is belied by the fact
that, two days after respondents filed their brief in opposition to certio­
rari in our Court, respondents sued the Port Authority of New York
City and demanded removal of a cross located at Ground Zero. See
Complaint in American Atheists, Inc. v. Port Auth. of New York, No.
108670–2011 (N. Y. Sup. Ct.); Notice of Removal in American Atheists,
Inc. v. Port Auth. of New York, No. 1:11–cv–06026 (SDNY).
10 That the petition of the Association presents the question whether
the cross memorials in this suit are government speech is no obstacle to
certiorari. The Court need not grant certiorari on that question, and
the state petitioners only ask this Court to resolve the viability and
application of the endorsement test.
11 Respondents argue that this suit would be a poor vehicle to explore
the contours of a coercion-based Establishment Clause test because the
State has raised the specter of a preference for one religion over others.
In this regard, respondents point out that the State took the position
before the lower courts that it would not be able to approve the Associa­
tion’s memorials “ ‘in the same manner’ ” if the Association, as it indi­
cated it would, allowed an officer’s family to request a symbol other
than a cross. Brief in Opposition 3–4, 31.
Because no such situation has ever arisen, and because the State has
only indicated it could not approve a different marker in the same
manner as the roadside crosses, respondents distort the record by
claiming that the State has put families to the choice of “a Latin cross
or no roadside memorial at all.” Id., at 4. Moreover, it is undisputed
that the State’s position stemmed from its belief that “if [the Associa­
tion] were to change the shape of the memorial to reflect the religious
symbol of the fallen trooper, rather than the shape of the cross, the
memorial would no longer be a secular shape recognized as a symbol of
death.” App. to Brief in Opposition 9a–15a (emphasis added). That
position is entirely consistent with the Tenth Circuit’s conclusion that
the purposes of the State and Association in permitting and implement­
ing the memorial program were secular. In any event, that the State
and Association, both defending the memorial program’s constitutional­
ity, took conflicting positions about whether it was impermissibly
religious to use only crosses, or impermissibly religious to use other
symbols reflective of the deceased’s religious preference, only highlights
the confusion surrounding the Establishment Clause’s requirements.
Cite as: 565 U. S. ____ (2011)
19
THOMAS, J., dissenting
* * *
Concurring in Allegheny, JUSTICE O’CONNOR wrote that
“the courts have made case-specific examinations” of
government actions in order to avoid “sweep[ing] away all
government recognition and acknowledgment of the role of
religion in the lives of our citizens.” 492 U. S., at 623(opinion concurring in part and concurring in judgment).
But that is precisely the effect of this Court’s repeated
failure to apply the correct standard—or at least a clear,
workable standard—for adjudicating challenges to gov­
ernment action under the Establishment Clause. Gov­
ernment officials, not to mention everyday people who
wish to celebrate or commemorate an occasion with a
public display that contains religious elements, cannot
afford to guess whether a federal court, applying our
“jurisprudence of minutiae,” id., at 674 (KENNEDY, J.,
concurring in judgment in part and dissenting in part),
will conclude that a given display is sufficiently secular.
The safer course will be to “purge from the public sphere
all that in any way partakes of the religious.” Van Orden,
545 U. S., at 699 (BREYER, J., concurring in judgment).
Because “the Establishment Clause does not compel” that
result, ibid., I would grant certiorari.