The Supreme Court denied cert this week in the Utah Highway Cross Cases out of the Tenth Circuit Court of Appeals: Utah Highway Patrol Association v. American Atheists, Inc., and Davenport, et al., v. American Atheists.
The Tenth Circuit, relying on the Lemon/endorsement test, ruled in both cases last year that cross memorials honoring fallen troopers on Utah highways were unconstitutional under the Establishment Clause.
Justice Clarence Thomas authored a 19-page dissenting opinion to the Court’s decision to deny cert, noting that the appellate court had relied on its own precedent, instead of a Supreme Court decision, when deciding the case because the Supreme Court was “sharply divided” on First Amendment Establishment Clause cases.
The Tenth Circuit Court of Appeals precedent that Justice Thomas referred to was Green v. Haskell County Board of Commissioners, the 2009 decision in which the Tenth Circuit affirmed that "the touchstone for Establishment Clause analysis remains the tripartite test set out in Lemon."
Barring further Supreme Court consideration of First Amendment Establishment Clause cases, the Lemon/endorsement test remains the best bet for Tenth Circuit practitioners when evaluating potential cases for litigation. Under the Lemon test, a challenged item must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster an excessive government entanglement with religion.
While judges dislike being second-guessed and overruled by the Supreme Court, do you think the Tenth Circuit Court of Appeals would benefit from a conclusive opinion regarding religious displays under the Establishment Clause? In his dissent, Justice Thomas wrote at length about the Court's inconsistent interpretation of the Establishment Clause; would the Utah Highway Cross case have been a strong test case to clarify the Court's position?