The U.S. Supreme Court announced Monday that it would not review an important case on whether displaying a memorial cross is an unconstitutional “establishment” of religion. Justice Thomas issued a 19-page dissenting opinion noting that “the Court reject[ed] an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

The Court was asked to consider a decision that banned public roadside crosses honoring state troopers killed in the line of duty. The court’s decision leaves a 5–4 appellate court ruling intact, but the issue is far from over. The high court will shortly face a similar request over a memorial cross that is part of a San Diego veterans’ memorial.

ADF asked the Supreme Court to take the Utah case on behalf of our client, the Utah Highway Patrol Association. The association and family members erected memorial crosses to honor the memory of officers who paid the ultimate price while serving their community.

These plain white roadside markers, displaying photos and written tributes to the deceased officers, brought solace to families and fellow officers and a sense of solemn dignity befitting the circumstances. The memorial crosses were paid for and maintained by private funds. Although no government money was involved, the plaintiffs from American Atheists stormed into federal court, claiming they were offended by such memorials and demanded they be torn down.

The Supreme Court’s decision not to review the case contributes to a growing sense of frustration, particularly since the court has sent signals that such memorials are not constitutionally prohibited.

For example, the court recently considered a challenge to a memorial cross honoring veterans in the Mojave Desert. Justice Kennedy, writing for the Court, dismissed the challenge to the memorial on technical grounds, and so the decision did not get to the weightier question on whether the inclusion of a cross violated the Constitution. But, in anticipation of the question, Justice Kennedy expressed his view about such displays:

The goal of avoiding government 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 government support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.

Interestingly, Justice Kennedy volunteered this guidance while the Utah trooper memorial case was pending on appeal. Despite the Supreme Court’s whopping hint, judges in the U.S. Court of Appeals for the Tenth Circuit voted 5–4 against the memorial displays. In light of these circumstances, the high court’s decision to pass on review is unfortunate, though certainly not the end of the story. There are various reasons the justices may select or decline a particular case to decide a topic. Whatever the reasons in this case, we are encouraged by Justice Kennedy’s comments, which reflect the commonsense view that a memorial cross is not an “establishment” of religion.

While we remain hopeful, the Supreme Court’s decision to pass on this case leaves the current unfortunate confusion in place. Justice Thomas’s dissent captured this, noting, “One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes” (referring to Establishment Clause cases generally).

The Utah case is only one of an onslaught of cases filed against memorial crosses. Groups like the ACLU and American Atheists have attacked other memorial crosses honoring veterans and even the well-known steel girder cross included in the 9-11 Memorial and Museum in New York. Their crusade against memorial crosses has incensed much of the public. For example, ADF is privileged to represent the American Legion Department of California in the Mount Soledad Memorial case in San Diego. We also represent the United Retired Firefighters Association, a group of about 7,000 New York City retired firefighters, who are fired-up over the American Atheists’ lawsuit against the 9-11 cross.

Sooner or later, the Supreme Court will have an opportunity to clear up the law on memorial crosses displays. For the sake of those valiant members of society whom we honor in these memorials, let’s hope the high court gets it right.

— Joseph Infranco is senior counsel with the Alliance Defense Fund, which represented the Utah Highway Patrol Association in the lawsuit filed by American Atheists.