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Five current Supreme Court justices have questioned the continued use of the so-called Lemon test for establishment clause violations. But four votes could not be found to revisit it this term in a closely watched religion clause challenge involving memorial crosses to fallen Utah State troopers. The justices on Monday denied review in two cases considered potential blockbusters — Utah Highway Patrol Association v. American Atheists Inc. and Davenport v. American Atheists Inc. As usual, the denial came without explanation, but Justice Clarence Thomas devoted 19 pages to a blistering critique of the Court’s establishment clause jurisprudence, which, he wrote, “has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.” In 1998, the Utah Highway Patrol Association, a private group, began commemorating officers who died in the line of duty by erecting 12-foot by 6-foot crosses at or near where the officers were killed. Some were erected, with state permission, on public roadsides. In the permits issued, the state said it neither approved nor disapproved the memorial marker. The atheist association sued the state, charging that the state violated the establishment clause because most of the crosses were on state property and all of them bore the highway association’s symbol. The highway patrol association, which intervened in the suit, won in the district court, but lost before a panel of the U.S. Court of Appeals for the 10th Circuit. The appellate court applied the so-called Lemon-endorsement test, which asks whether the challenged government practice has the actual purpose of endorsing religion or would appear to do so from the perspective of the reasonable observer. The court concluded that the crosses conveyed to the reasonable observer that Utah endorses Christianity. Thomas, who would have granted review in the Utah cases, pointed out the “erratic, selective analysis” applied by the lower courts because of the Supreme Court’s rulings on religious imagery on government property, and, in particular, its two 2005 decisions involving Ten Commandments monuments. “Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government, and that, even if incorporated, the Clause only permit an ‘actual legal coercion,’ the Court should be deeply troubled by what its establishment Clause jurisprudence has wrought,” wrote Thomas. The two cases drew 46 amicus briefs supporting review. Ken Klukowski, director of the Center for Religious Liberty at the Family Research Council, co-author of an amicus brief with Nelson Lund of George Mason university School of Law, said, “The U.S. Supreme Court decided today to let stand one of the worst court decisions on religious liberty in American history. The 10th Circuit Court of Appeals’ decision, ordering removal of roadside crosses in six states, is the worst example yet of the Establishment Clause being turned on its head to sterilize the public square of references to faith.” Marcia Coyle can be contacted at [email protected]

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