The Court’s Establishment Clause Jurisprudence Provides Clarity … “Except When It Doesn’t”

Today (in Utah Highway Patrol Association v. American Atheists, Inc.) the Supreme Court denied petitions to review a Tenth Circuit decision that held that a private association’s efforts to memorialize slain police officers with white roadside crosses violated the Establishment Clause. In his dissent from the denial of review (available at the last 19 pages of this order), Justice Thomas complains that “our Establishment Clause precedents remain impenetrable … [and] incapable of coherent explanation,” and he offers this apt summary of the state of case law:

Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t. [Case citations and summaries omitted.]

Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t. [Case citations and summaries omitted.]  

A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t. [Case citations and summaries omitted.] 

Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t. [Case citations and summaries omitted.] 

I gather from footnote 11 of Justice Thomas’s opinion that concerns over whether surviving family members could select a symbol other than a cross (and thus over whether the case was a good vehicle for clarifying the confusion in case law) may explain the Court’s denial of review.