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Is Justice Clarence Thomas Right About the Establishment Clause?

By Robyn Hagan Cain | Last updated on

The Supreme Court denied cert this week in combined cases Utah Highway Patrol Association v. American Atheists, Inc., and Davenport, et al., v. American Atheists, two religious display disputes involving cross memorials honoring fallen Utah state troopers.

The Tenth Circuit Court of Appeals narrowly decided last year that the cross displays were an unconstitutional violation of the First Amendment Establishment Clause. Justice Clarence Thomas, in a 19-page dissent to the denial of cert, claimed that sharply divided courts will continue to debate proper application of the Establishment Clause until the Supreme Court issues an opinion to clarify its stance on religious displays on government property.

In reviewing the disposition of the cases, Thomas noted that the Tenth Circuit's decision relied on its own precedent, rather than Supreme Court cases, because "[Supreme Court] jurisprudence provides no principled basis by which a lower court could discern whether Lemon/endorsement, or some other test, should apply in Establishment Clause cases."

That, for Justice Thomas, is a problem.

Thomas notes that in 2005, a majority of the Court declined to apply the Lemon/endorsement test when upholding a Ten Commandments display located at the Texas State Capitol, but applied the Lemon/endorsement test to declare a Ten Commandments display in a Kentucky courthouse to be unconstitutional. The Court can't even attribute the inconsistency to a temporal disconnect: Both opinions were issued on the same day.

Thomas went on to note that Supreme Court jurisprudence dictates that crèches, menorahs, the Ten Commandments, and crosses on government property all violate the First Amendment Establishment clause, except when they don't.

Justice Thomas has a point.

In the last six months, we've seen appellate court decisions challenging Ten Commandments displays inside a courthouse, in front of a courthouse, and in the classroom. We've covered tales of cross displays that could be construed as either a religious monument, or a war memorial. The courts, and the citizenry, are clearly confused about how or when to apply the Establishment Clause.

We're not suggesting that people stop erecting questionably-religious structures on government land, or stop challenging such structures, if the Supreme Court clarifies how the Lemon/endorsement test should be applied to religious displays; that would be expecting too much of our highly-litigious society. We simply think it's time for Supreme Court to iterate a uniform rule for displays on government property.

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