by Brittany Meyer
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Just in time for the Northern Hemisphere’s winter solstice, the 10th Circuit declined an en banc review of a previous ruling that 14 large white crosses used as roadside memorials for fallen troopers on public land in Utah violated the Establishment Clause because it gave the appearance of endorsing Christianity.
In other words, the atheists have won the case, and the Circuit Court declined to reverse the ruling.
As it stands, the following cross is still officially an endorsement of Christianity:
Procedurally, here’s what happened: rather than drag the entire court out of bed for a case, decisions at the appellate level are sometimes made by a panel of three judges. The losers can then request an “en banc” rehearing in front of all the judges currently on the bench. The Utah state government did this, but their request was rejected.
After an en banc decision (or a denial of review), the only place left to go is the Supreme Court. Will the state government pursue this route? We don’t know yet.
Substantively, though, this ruling is peculiar considering the Supreme Court spoke explicitly about crosses on the side of freeways in dictum in the majority opinion for Salazar v. Buono earlier this year — they said crosses were not necessarily an endorsement of Christianity:
“The goal of avoiding governmental 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 governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” Salazar v. Buono, 559 U.S. (2010).
Doesn’t that passage lend support to the opposition?
Though the original 10th circuit opinion came out about four months after Salazar v. Buono, the majority does not mention this legally persuasive paragraph. The two dissents in the denial for rehearing both mention the paragraph, showing that the majority knew about — and then rejected — the notion that Salazar mandated a reversal.
What does this mean? It’s possible the Supreme Court could take up this case and use their own past decision to overturn the Duncan case, thus ruling against the atheists.
One difference in the cases is Salazar uses the a full Lemon analysis in its decision and American Atheists v. Duncan uses the more simple Establishment Clause Endorsement test in arriving at the opposite result. The Endorsement test asks whether a government action creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. The Lemon test uses a 3 prong approach where each prong must be met in order for an action to be valid. Right now, both of these are a legitimate way to decide Establishment Clause cases, but current jurisprudence seems to prefer the Lemon analysis.
It’s possible the Supreme Court will take on Duncan and use it to overturn the Establishment Clause Endorsement test. The test is easier to meet than the more complicated Lemon test, so its reversal would change how the church separation community will go about framing arguments.
It is unfortunate that even in the highest court in the nation, a true separation of (Christian) Church and State fails to exist. Maybe in the next Court.