Thomas: Establishment Clause Jurisprudence ‘In Shambles’

By Mark Walsh — October 31, 2011 4 min read
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Justice Clarence Thomas on Monday said that the U.S. Supreme Court’s establishment-clause jurisprudence is “in shambles.”

Citing divergent lower-court opinions on the display of crosses, the Ten Commandments, and other religious messages in courthouses, city halls, and public schools, Thomas said “our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”

“Even if the court does not share my view that the establishment clause restrains only the federal government, and that, even if incorporated [i.e., applied to the states], the clause only prohibits actual legal coercion, the court should be deeply troubled by what its establishment clause jurisprudence has wrought,” Thomas said in a lone dissent from the court’s denial of certiorari in Utah Highway Patrol Association v. American Atheists Inc. (Case No. 10-1276).

The Supreme Court on Oct. 31 refused to hear the case involving white crosses placed on or near spots where members of the Utah Highway Patrol were killed while on duty. The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that although the crosses were placed by a private group, their location predominantly on public property conveyed a message that the state of Utah endorsed Christianity.

In his 19-page dissent, Thomas referred to a number of school cases that, in his view, reflect confusion or inconsistent application by lower courts of the Supreme Court’s rulings under the First Amendment’s prohibition against government establishment of religion.

He cited a 2005 decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that upheld a Virginia law mandating the recitation of the Pledge of Allegiance in public schools. That court applied Van Orden v. Perry, a 2005 Supreme Court decision about public displays of the Ten Commandments. Thomas used the 4th Circuit reference to rebut the assertion of the group of atheists who challenged the Utah crosses that the high court’s Ten Commandments cases have not been applied to other areas of religious speech in the public square.

Thomas also cited a 2006 case which involved a challenge to the display of a menorah in the New York City public schools. The U.S. Court of Appeals for the 2nd Circuit, in New York City, upheld a school district policy allowing the display of a menorah along with the Islamic star and crescent, the Kwanzaa kinara, the Hebrew dreidl, and a Christmas tree, but prohibiting a Christian creche.

Referring to conflicting opinions by other lower courts, Thomas said that the message of the high court’s rulings is that “a menorah displayed on government property violates the establishment clause, except when it doesn’t.”

Thomas also cited a 2008 decision by the 10th Circuit court that upheld a mural depicting crosses in a public elementary school in Las Cruces, N.M.

Referring to these decisions and numerous others by the lower courts on religious displays, Thomas said, “One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes.”

Appropriately for an opinion issued on Halloween, Thomas also cited with approval a famous description by Justice Antonin Scalia of the high court’s much-maligned Lemon test. Under that test, from the 1973 education case of Lemon v. Kurtzman, a government action that aids religion passes constitutional muster if it has a secular legislative purpose, it neither advances nor inhibits religion, and does not foster an excessive entanglement with religion.

In a concurring opinion in a 1993 school case, Lamb’s Chapel v. Center Moriches Union Free School District, Scalia mocked the Lemon test.

“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, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys” of the Center Moriches school district, Scalia said in Lamb’s Chapel. He said the Lemon test was essentially being ignored by the court, and that “no fewer than five of the currently sitting justices have, in their own opinions, personally driven pencils through the creature’s heart.”

In a footnote to the main opinion in that case, Justice Byron R. White had a retort for Scalia. “While we are somewhat diverted by Justice Scalia’s evening at the cinema, we return to the reality that there is a proper way to inter an established decision, and Lemon, however frightening it might be to some, has not been overruled,” Justice White said.

Thomas concludes his opinion in the Utah crosses case by arguing that confusion over the legality of public displays of religion prompts government officials and “everyday people” to choose a “safer course” of purging “from the public sphere all that in any way partakes of the religious,” which the establishment clause does not compel.

A version of this news article first appeared in The School Law Blog.