Clarence Thomas says Court needs to clean up mess

Justice Clarence Thomas says he and his fellow Supreme Court Justices need to “clean up our mess” with regard to religious-display cases. He wrote this blunt assessment in a 19-page dissenting opinion in the consolidated cases Utah Highway Patrol Association v. American Atheists (10-1276) and Davenport v. American Atheists (10-1297).

The cases involve a private association’s efforts to post 12-foot high roadside crosses to memorialize and honor slain state troopers. The American Atheists contended that the posting of these religious symbols on government property violated the establishment clause, the first 10 words of the First Amendment, which provide for a degree of separation between church and state.

The 10th U.S. Circuit Court of Appeals ruled that the crosses constituted an impermissible government endorsement of religion in violation of the establishment clause. The case was appealed to the Supreme Court.

In his dissent, Thomas repeatedly said that the Court’s decisions in religious-display cases have created confusion in the lower courts. “Because our 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,” he wrote.

Thomas has a point about the divided nature of the Court’s religious-display cases. On June 27, 2005, the Court decided two Ten Commandment display cases, one from Texas and one from Kentucky. In Van Orden v. Perry, the Court ruled 5-4 that a display in a Texas public park was constitutional and did not violate the establishment clause.

However, the Court ruled 5-4 in McCreary County v. ACLU of Kentucky, that Ten Commandment displays in two Kentucky county courthouses did violate the establishment clause. Only Justice Stephen Breyer voted differently in the two decisions. The Court used different legal tests in the similar cases to determine whether there was a church-state separation problem. In Van Orden, the majority focused on history and tradition, while the majority in theMcCreary County case used the famous Lemon test from the Court’s 1971 decision Lemon v. Kurtzman.

“Since Van Orden and McCreary, lower courts have understandably expressed confusion,” Thomas wrote. “This confusion has caused the Circuits to apply different tests to displays of religious imagery challenged under the Establishment Clause.”

Thomas’ own view of the establishment clause differs sharply from that of his colleagues. He has said he believes that the clause is a “federalism provision” that limits only the federal government, not state governments.  But Thomas is known for staking out bold positions apart from his colleagues in several areas of First Amendment law, including commercial speech and student expression.

In his dissent in the Utah case, Thomas recognized that his position differs from that of his colleagues, but still called for the Court to clarify this area of law: “Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government … the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought.”

The Court’s rulings in the establishment-clause area have wrought much confusion, with lower courts apply a range of different legal tests and principles.

This sharp divide in the lower courts is one reason why the First Amendment Center’s National First Amendment Moot Court Competition chose a religious-display case for its 2012 hypothetical problem.

One may believe that Justice Thomas is an outlier with his establishment-clause position. But his latest dissent hits the mark when he identifies that the Court is inconsistent when fielding church-state separation questions.

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