Today the Supreme Court denied certiorari in Utah Highway Patrol Ass’n v. American Atheists, the Utah highway crosses case. The Tenth Circuit had held that memorial crosses an association of police officers had erected alongside public roadways violated the Establishment Clause under the endorsement test. Justice Thomas filed a 19-page dissent from the denial of cert, arguing that the case would have provided a good vehicle for reconsidering the test, which, he argues, confuses lower courts and leads to unpredictable results.
As Lyle Denniston explains at SCOTUSBlog, it’s impossible to know whether any of the other justices voted to grant cert — though, obviously, there were not four who wanted to hear the case. Perhaps the fractured nature of the last religious display case the Court decided, Salazar v. Buono (2010), which also involved a cross on public property, has chastened the justices and made them reluctant to try again so soon. Perhaps there were problems with the record. Perhaps the justices who favor abandoning the endorsement test cannot yet agree on a substitute and don’t want to confuse things even more. One fact is clear. Public religious displays continue to generate an enormous amount of interest. The Court received 46 amicus submissions in support of cert in the Utah case. — MLM