U.S. Supreme Court Justice Clarence Thomas says a court decision not to intervene in a dispute over roadside memorials for fallen Utah state troopers is leaving the understanding of the Establishment Clause "in shambles."
His comment came today in a 19-page dissent that criticized the court for refusing to hear the case concerning the constitutionality of roadside crosses that honor troopers killed in the line of duty.
"Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles," he said, likening the court's failure to provide clarity for lower courts to a late-night horror flick.
"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,'" the opinion said.
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The Alliance Defense Fund has been fighting on behalf of the Utah Highway Patrol Association to memorialize fallen troopers "in a way they see fit."
American Atheists sued officials of the Utah Highway Patrol and the Utah Transportation Department in 2005.
"The group claimed that the roadside memorials are a state establishment of religion even though the memorials are funded, owned and maintained by a private organization, the Utah Highway Patrol Association, ADF said.
"The UHPA, which supports highway patrol officers and their families, was allowed to intervene in the lawsuit to defend the memorial crosses in 2006."
In 2007 a federal court upheld the constitutionality of the crosses. The 10th Circuit U.S. Court of Appeals later disagreed.
Today, the high court decided to let that decision stand.
It was in April of this year when ADF attorneys asked the Supreme Court to review the case, Utah Highway Patrol Association vs. American Atheists.
As WND reported, ADF was particularly encouraged by an April 2010 U.S. Supreme Court decision, Salazar vs. Buono, that allowed a cross-shaped memorial in the Mojave Desert to remain.
In that decision, the high court specifically addressed roadside crosses honoring fallen state troopers.
The Supreme Court said, "The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. 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.
"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," that court ruling said.
ADF Senior Counsel Byron Babione argued "one atheist group's agenda shouldn't diminish the sacrifice made by highway patrol officers and their families."
"Thirteen heroic men fell, leaving their survivors to mourn and memorialize their loved ones, and now those widows, children, parents, colleagues, and many more must suffer through losing the very memorials that honored those heroes," he said.
"Justice is not well served when unhappy atheists can use the law to mow down memorial crosses and renew the suffering for the survivors," continued Babione. "But ADF will continue to fight for the right of families to memorialize their heroes in the way they see fit. In the end, justice must prevail."
The Family Research Council, which wrote a friend-of-the-court brief supporting the Utah Highway Patrol Association, said today, "SCOTUS Lets Stand One of Worst Religious Liberty Assaults in American History."
FRC President Tony Perkins said the Supreme Court "has failed to recognize that religious liberty is a fundamental right given to us by God and protected in the Constitution."
"I find it tragic that our freedoms are now at greater risk from our own courts than from the foreign or domestic enemies we've faced," Perkins said.
Ken Klukowski, who co-authored the FRC brief with Professor Nelson Lund said, "The Tenth Circuit Court of Appeals ordered removal of roadside crosses in six states is the worst example yet of the Establishment Clause being turned on its head to sterilize the public square of references to faith."
The refusal by the Supreme Court to hear this case may affect memorials around the country and, according to the FRC, could even impact "crosses on headstones at Arlington National Cemetery."
"Freedom of religion means, in part, that no government should discriminate against those who, using their own funds, wish to erect a non-invasive religious display on public property," concluded Klukowski.
Dave Silverman of American Atheists said, "We have no problem with honoring fallen troopers: they should be honored.
"Erecting divisive religious icons that violate the very Constitution the fallen troopers had sworn to uphold is not the way to honor those troopers who gave the ultimate sacrifice for the citizens of their state."
Apparently displeased with both the 10th Circuit and the Supreme Court, Thomas continued in his dissent, "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."
He said, "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 preferential treatment from the [patrol] – both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways.'"
But Thomas noted the dissenters in the 10th Circuit decision said a "reasonable observer" of the Utah memorial crosses "would not take such a paranoid, conspiratorial view of life, conjuring up fears of religious discrimination by a 'Christian police,' especially in light of the more plausible explanation that the crosses were simply memorials."
"To be fair to the Tenth Circuit, it is our [SCOTUS] Establishment Clause jurisprudence that invites this type of erratic, selective analysis of the constitutionality of religious imagery on government property," Thomas wrote. "These cases thus illustrate why '[t]he outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.'"