Supreme Court rejects Utah Highway cross appeal


By Mitch Staley

Last week, the U.S. Supreme Court denied the opportunity to clarify blurry lines in the argument over the separation of church and state.

Fourteen crosses dot Utah highways and were constructed to honor Utah Highway Patrolmen who have died while on duty.

The 12-foot tall crosses were deemed an appropriate symbol of remembrance by the Utah Highway Patrol Association. The association is a private entity, not under the supervision of the state. In 2006, the Utah State Legislature ruled crosses were a secular symbol of death.

According to court documents, the association chose the cross because it believed crosses are used both generally in cemeteries to commemorate the dead and specifically by uniformed services to memorialize those who died in the line of duty.

The nation’s highest court ruled in an 8 to 1 vote rejecting the appeal made by the Utah Highway Patrol Association. The lone dissenter was Justice Clarence Thomas, who issued a 19-page opinion explaining why he thinks turning down the appeal was a mistake.

“It is difficult to imagine an area of the law more in need of clarity,” Thomas said  “Because our [the Supreme Court’s] 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.”

“Certiorari” is the latin-term used to describe an appeal to a higher court to review a lower court’s decision.

In his written opinion, Justice Thomas said he believes that the 10th Circuit Court of Appeal’s ruling the memorials unconstitutional was based on a test, the “Lemon/endorsement test,” that isn’t an accurate measure for defining breaches of the Establishment Clause. The Establishment Clause is from the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion.”

The “Lemon/endorsement test” is defined by the following guidelines:

  1. The government’s action must have a secular legislative purpose;
  2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
  3. The government’s action must not result in an “excessive government entanglement” with religion.

These guidelines were determined by Justice Sandra Day O’Connor in 1984.

“The Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought, ” Thomas said in his opinion. “Indeed, five sitting Justices have questioned or decried the ‘Lemon/endorsement’ test’s continued use.”

The case will now be returned to a federal judge in Salt Lake City to determine an order for the removal of the memorials. The attorney representing the Atheists insists that other options might be possible while still remaining compliant with the Circuit Court’s decision.

Two of Utah’s elected officials have publicly expressed discontent with the Supreme Court’s decision to turn down the appeal.

“I’m upset at our Supreme Court for not taking the case,” said Utah Attorney, General Mark Shurtleff in a KSL report. “They clearly need to resolve a question that differs depending on where you live in the country.”

Utah’s United States Sen. Mike Lee declared similar sentiment in his weekly press-teleconference stating his disappointment in the Court’s decision to ignore the case.

Utah officials are now deciding what will happen to the crosses and how the Association should honor the fallen troopers of which the crosses were dedicated.

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