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No clarity on religious displays


In recent years, five of the Supreme Court Justices have been highly critical of how the Court decides the constitutionality of public displays of religious symbols or messages.  That means, of course, that as a majority among the nine, they have the clear authority to make a change, if they wished.   And, it would only take four of them to agree to grant a new case so that they would have an opportunity to do so.  But, on Monday, only one of those five protested when the Court chose to pass up another test case — one that has been under consideration since before the new Term opened.

Justice Clarence Thomas dissented alone as the Court refused to review the constitutionality of crosses placed along Utah’s highways near the places where state troopers have died in the line of duty, to commemorate their sacrifice.  The Tenth Circuit Court, applying what it could make of the Court’s often conflicting rulings on church-state matters, found those displays to be invalid.  The crosses, that lower court said, would “convey to a reasonable observer that the state of Utah is endorsing Christianity,” and that is something that a state is forbidden to do.  (The combined cases were Utah Highway Patrol Association v. American Atheists, Inc., docket 10-1276, and Davenport, et al., v. American Atheists, 10-1297.)

Thomas, of course, is the one member of the current Court who would start all over in interpreting the Constitution’s ban on government “establishment” of religion, and would rule that the ban in the First Amendment should operate only as a limitation on the powers of the federal government, not of state and local governments.   On Monday, he suggested that the Court need not go that far, but he argued that it “should be deeply troubled by what its Establishment Clause jurisprudence has wrought.”

He aimed his strongest rhetorical complaint against what is called the “endorsement” test, a test that is usually associated most often with the work of retired Justice Sandra Day O’Connor, who was at least the most enthusiastic proponent of that approach (which probably had its theoretical origins in Lemon v. Kurtzman, a case decided in 1971, ten years before O’Connor joined the Court).  The theory is that it amounts to a forbidden “establishment of religion” if a religious display somehow linked to the government — as, say, when it is on the public highways’ right-of-way — is seen as an endorsement of one particular faith preference.

On Monday, Justice Thomas took 19 pages to try to show just how flawed that constitutional test has become.  He ticked off a series of specific kinds of displays, and sarcastically noted, with each, that the display violated the Constitution, “except when it doesn’t.”   He said lower courts have gone so far in their confusing pursuit of a jurisprudence that will work that they use one theory to judge displays of the Ten Commandments, and another to judge every other kind of religious display.   That approach, Thomas wrote, “speaks volumes about the superficiality and irrationality” of what the Court has done in this field of law.

Six years after the Supreme Court itself, on the same day in 2005, upheld one display of the Ten Commandments on government property, but struck down another one, Thomas said, “our Establishment Clause precedents remain impenetrable, and the lower courts’ decisions…remain incapable of coherent explanation.  It is difficult to imagine an area of the law more in need of clarity.”   If this particular case is not worthy of review by the Justices, he concluded, “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.”

Noting that review by the Court had been opposed by the challengers to the cross display at issue with the argument that the specific facts were peculiar to this case, Thomas concluded: “We should not now abdicate our responsibility to clean up our mess because these disputes, by our own making, are ‘factbound.’  This suit, which squarely implicates the viability and application of the Lemon/endorsement test, is as ripe for certiorari as any.”

Because the Court does not usually reveal how its members have voted on whether or not to grant certiorari, there is no certainty that Thomas was the only one who wanted to hear the Utah cross controversy.  But one thing is certain: there were not four Justices who were sufficiently committed to hearing this particular dispute that they would vote to grant.

The Court disposed of that case after returning from a two-week recess, to begin its second sitting of the new Term.  In another significant action, the Court — without any noted dissent — summarily upheld a ruling by a three-judge federal District Court allowing the state of Mississippi until next year to draw new election districts for its state legislature, in order to take account of the shifts in population noted by the U.S. census that was completed in 2010.   The challengers to that ruling had argued that a state legislature must act promptly to implement census population shifts, as soon as the federal government announces the results of the latest ten-year calculation of population.   Mississippi’s state constitution, however, allows the legislature until the second year after a new census to draw up new districts.

As a result of the lower court ruling and the Supreme Court’s decision upholding it, Mississippi will not craft new legislative districts until it does so in 2012 for elections that will be held in 2015 — five years after a census that showed that both houses of the state legislature are clearly in violations of the constitutional requirement for roughly equal population in districts (“one-person, one-vote”).  (The case was Mississippi State Conference of NAACP v. Barbour, docket 11-82.)

In another action, the Court denied review of the first case seeking to test whether public school officials have the authority to discipline students for offensive remarks that they make in Internet postings, written on the students’ computers while they were at home.  The issued has been raised in three petitions before the Court this Term.  The Court refused to hear the first — Doninger v. Niehoff, et al. (docket 11-113), raised by a since-graduated student of a high school in Burlington, Conn., who posted a note on her on-line journal sharply critical of school officials for threatening to cancel a musical “jamfest.”

The Court has not yet considered the other two cases on regulation by school officials of off-campus student remarks: Kowalski v. Berkeley County Schools (11-461) and Blue Mountain School District v. J.S. (11-502).





Recommended Citation: Lyle Denniston, No clarity on religious displays, SCOTUSblog (Oct. 31, 2011, 1:24 PM),