Sunday, November 13, 2011

Crosses Cause Avoidance

On Monday, October 31st 2011, in an 8-1 ruling the Supreme Court rejected to listen to an appeal of a ruling on the placement of religious symbols alongside a state highway. Along interstate fifteen in Utah, there are dozens of crosses that have been erected to honor fallen state troopers. These crosses are white, twelve feet tall, with six-foot crossbars. These structures were donated by the Utah Highway Patrol Association and placed near where the troopers died. The Utah Highway Patrol Association is a private group and since 1998 has paid for and erected fourteen memorial crosses, created to honor state troopers who have died while on duty. Of these fourteen, eleven are on state property while three are on private property. Not only do these crosses display the name of the deceased trooper, but also their picture, badge number, biographical information, as well as the symbol of the Utah Highway Patrol.

In 2005 the Texas-based American Atheists Inc. along with three Utah members sued the state of Utah for violation of the establishment clause. The American Atheists Inc. believed that there was an improper mixing of government and religion because the shield of the Utah Highway Patrol is on the crosses. At a federal appeals court in Denver in 2010 the crosses were deemed an unconstitutional endorsement of Christianity by the state government. The crosses were too be removed from public property immediately. The basis of this decision, as the three judge panel stated was the crosses would leave any “reasonable observer” with the impression that “Christians are likely to receive preferential treatment”. Although this state court ruled against the crosses, the Supreme Court side stepped the entire problem. The Supreme Court refused to listen to the appeals for this case. In his dissent, Justice Clarence Thomas stated that this case would allow the court to clear up the confusion over how to determine whether or not the Establishment Clause has been violated. Since the Supreme Court has declined to make a decision, the case will now go to a federal judge in Salt Lake City for an order to have the state take down the crosses.

This case has brought up a large amount of criticism of the Supreme Court. The purpose of the Supreme Court is to settle debates over constitutional rights, and if the Court can’t make a decision how are the lower courts supposed to know what to follow. By refusing to address the problem, the Supreme Court is not following its duty. Justices are supposed to handle complicated constitutional issues and determine a ruling, by not picking a side it leaves all lower courts confused. Not only that, but by not setting a standard the Court leaves room for greater discrepancy between cases. Another problem with the Supreme Court’s decision is that they did not even bother to utilize their favorite tool, which they have often used to determine establishment clause cases. The Lemon Test has been a useful instrument used by the Court for many different cases, so why did the Court choose not to use it now? Although this case is certainly not simple, by reviewing it with the Lemon Test it is clear that these crosses create government entanglement with religion. The cross is widely recognized as a religious symbol and by allowing it to be placed on public property with a state organization’s shield; the crosses clearly violate the establishment clause. Had the Court chosen to review this case, it should have ruled the crosses to be unconstitutional. To that effect, the Supreme Court would determine another way that those who have died could be honored, such as putting the crosses on private property or by creating different memorial structures without religious implications. Overall it is apparent that the Court could have made an effective decision, but instead they decided to not get involved.

In its entirety, by refusing to listen to the appeals the Supreme Court has forgotten the key issue here, separation of church and state. The Supreme Court should have addressed this issue, which would have an effect taken away much of the gray area surrounding establishment clause issues. How do you think the Supreme Court should have handled this case? Do you believe not taking an active role in this case was the right decision? If you believe the Supreme Court should have heard the appeals, what do you think their ruling would be?


Harry R. said...

By not granting a writ of certiorari, the Supreme Court upheld the lower court's ruling that the crosses represented an unconstitutional establishment of religion. Someone driving along the road at fifty miles an hour would not recognize the memorial aspect of the crosses and would instead see large white crosses representative of Christianity. I feel that the Supreme Court recognized this fact and am pleased that they did not use additional taxpayer money to reiterate the lower court's decision.

Christopher J. said...

I disagree with Harry's "reasonable observer" argument. Seeing one large cross on the side of the road is one thing, but seeing dozens in a row with names, pictures, etc. on them should be enough for someone to realize they are religiously-oriented memorials, not a governmental endorsement of said religion. The traditional cross (i.e. one that is representative of Christianity as a whole) is typically plain, with the only adornments being a representation of Jesus and the acronym for "King of the Jews" at the top (usually in Hebrew, Greek or Latin). The crosses in question are different enough from the traditional cross that it should be clear that they are not meant to endorse Christianity, but are rather there to honor fallen police officers.

As for the constitutionality of the crosses, I disagree with both Allison's and Harry's assertion that they are clearly unconstitutional. The concept of private religious symbols on public land is an issue that the Court has failed to give a decisive and consistent ruling on. What it really comes down to is the definition of what "public" land is. Is the land in question "state" land (i.e. privately-owned state land that the government has allowed the public to use) or is it true "public" land (i.e. land owned by the citizens of Utah and merely administered in a trust by the government)? The former gives the government much more authority over how the land can be used, meaning the latter is much more difficult to deal with. After all, if the land in question is truly owned by the sum off all the citizens of Utah, shouldn’t that land be representative of the beliefs of the citizenry? If a private organization comprised of Utah citizens wants to place memorial crosses on land that they in part own, shouldn’t that be allowed? Same thing with other organizations, religious or otherwise; if the citizens of Utah want to use the land that they own (and is merely administered for them by the government) to display their beliefs, they should be able to do so.

I am disappointed the Supreme Court decided not to grant certiorari, but can understand why; there are only so many cases the Court can hear in any given session and the docket may have been too full to allow for another case to be reviewed. The fact that the case is not going to be heard by the Court does not necessarily mean that it agrees with the decision of the lower court, as Harry argued. It may just be that there were too many other cases that the Court decided were more important for there to be time for this case to be heard as well. Because of the many lingering questions and conflicting rulings concerning the concept of religious symbols on public land, I would not be surprised if the Court decides to hear a similar case at some point in the future.