Cite as: 565 U. S. ____ (2011) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

UTAH HIGHWAY PATROL ASSOCIATION 

10–1276 v. 

AMERICAN ATHEISTS, INC., ET AL. 

LANCE DAVENPORT ET AL. 

10–1297 v. 

AMERICAN ATHEISTS, INC., ET AL. 

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
 

Nos. 10–1276 and 10–1297. Decided October 31, 2011
 

The petitions for writs of certiorari are denied. 

JUSTICE THOMAS, dissenting from the denial of certiorari. 

Today the Court rejects an opportunity to provide clarity

to an Establishment Clause jurisprudence in shambles. A 

sharply divided Court of Appeals for the Tenth Circuit has

declared unconstitutional a private association’s efforts

to memorialize slain police officers with white roadside

crosses, holding that the crosses convey to a reasonable 

observer that the State of Utah is endorsing Christianity. 

The Tenth Circuit’s opinion is one of the latest in a long 

line of “‘religious display’” decisions that, because of this 

Court’s nebulous Establishment Clause analyses, turn on

little more than “judicial predilections.” See Van Orden v. 

Perry, 545 U. S. 677, 696, 697 (2005) (THOMAS, J., concurring). 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. 

I 

The Utah Highway Patrol Association (Association) is a 

private organization dedicated to supporting Utah High­
 

2 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

way Patrol officers and their families.1 In 1998, the Association began commemorating officers who died in the line 

of duty by placing memorials, in the form of 12- by 6-foot 

white crosses, at or near locations where the officers were 

killed. The fallen officer’s name, rank, and badge number 

are emblazoned across the full length of the horizontal 

beam of each memorial. The vertical beam bears the 

symbol of the Utah Highway Patrol, the year of the officer’s death, and a plaque displaying the officer’s picture, 

his biographical information, and details of his death. To 

date, the Association has erected 13 cross memorials. 

The Association chose the cross because it believed that 

crosses are used both generally in cemeteries to commemorate the dead and specifically by uniformed services to

memorialize those who died in the line of duty. The Association also believed that only the cross effectively and 

simultaneously conveyed the messages of death, honor, 

remembrance, gratitude, sacrifice, and safety that the Association wished to communicate to the public. Surviving 

family members of the fallen officers approved each 

memorial, and no family ever requested that the Association use a symbol other than the cross.

The private Association designed, funded, owns, and

maintains the memorials. To ensure that the memorials 

would be visible to the public, safe to view, and near the 

spot of the officers’ deaths, the Association requested and 

received permission from the State of Utah to erect some

of the memorials on roadside public rights-of-way, at rest

areas, and on the lawn of the Utah Highway Patrol office.

In the permit, the State expressed that it “neither approves or disapproves the memorial marker.” Brief in 

Opposition 3, n. 3 (internal quotation marks omitted).

Respondents, American Atheists, Inc., and some of its 

—————— 

1These cases were decided on a motion for summary judgment. 

These facts are undisputed. 
Cite as: 565 U. S. ____ (2011) 3 

THOMAS, J., dissenting 

members, sued several state officials, alleging that the

State violated the Establishment Clause of the First 

Amendment, as incorporated by the Fourteenth Amendment, because most of the crosses were on state property 

and all of the crosses bore the Utah Highway Patrol’s 

symbol. The Association, a petitioner along with the state 

officials in this Court, intervened to defend the memorials. 

The District Court granted summary judgment in favor of 

petitioners.

A panel of the Tenth Circuit reversed. As an initial 

matter, the panel noted that this Court remains “sharply 

divided on the standard governing Establishment Clause 

cases.” American Atheists, Inc. v. Duncan, 616 F. 3d 1145, 

1156 (2010). The panel therefore looked to Circuit precedent to determine the applicable standard and then applied the so-called “Lemon/endorsement test,” which asks 

whether the challenged governmental practice has the

actual purpose of endorsing religion or whether it has that 

effect from the perspective of a “reasonable observer.” Id., 

at 1157; see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 

573, 592–594 (1989) (modifying the three-pronged test of 

Lemon v. Kurtzman, 403 U. S. 602 (1971), which considered

whether a government action has a secular purpose, has 

the primary effect of advancing or inhibiting religion, or 

fosters an excessive entanglement between government

and religion). The court concluded that, even though the 

cross memorials had a secular purpose, they would nonetheless “convey to a reasonable observer that the state of

Utah is endorsing Christianity.” 616 F. 3d, at 1160. This 

was so, the court concluded, because a cross is “the 

preeminent symbol of Christianity,” and the crosses stood 

alone, on public land, bearing the Utah Highway Patrol’s

emblem. Ibid. According to the panel, none of the other

“contextualizing facts” sufficiently reduced the memorials’

message of religious endorsement. Id., at 1161. 
 

4 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

The Tenth Circuit denied rehearing en banc, with four 

judges dissenting. The dissenters criticized the panel for

presuming that the crosses were unconstitutional and 

then asking whether contextual factors were sufficient to 

rebut that presumption. Instead, the dissenters argued,

the panel should have considered whether the crosses 

amounted to an endorsement of religion in the first place

in light of their physical characteristics, location near the 

site of the officer’s death, commemorative purpose, selection by surviving family members, and disavowal by the

State. 637 F. 3d 1095, 1103–1105 (2010) (opinion of Kelly, 

J.). The dissenters also criticized the panel’s “unreasonable ‘reasonable observer,’” id., at 1104, describing him as

“biased, replete with foibles, and prone to mistake,” id., 

at 1108 (opinion of Gorsuch, J.). Noting that the court

“continue[d] to apply (or misapply) a reasonable observer/

endorsement test that has come under much recent 

scrutiny,” the dissenters emphasized that the panel’s 

decision was “worthy of review.” Id., at 1109–1110 (same). 

II 

Unsurprisingly, the Tenth Circuit relied on its own 

precedent, rather than on any of this Court’s cases, when 

it selected the Lemon/endorsement test as its governing 

analysis. Our jurisprudence provides no principled basis by which a lower court could discern whether 

Lemon/endorsement, or some other test, should apply in 

Establishment Clause cases. Some of our cases have simply 

ignored the Lemon or Lemon/endorsement formulations. 

See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002); 

Good News Club v. Milford Central School, 533 U. S. 98 

(2001); Marsh v. Chambers, 463 U. S. 783 (1983). Other 

decisions have indicated that the Lemon/endorsement test

is useful, but not binding. Lynch v. Donnelly, 465 U. S. 

668, 679 (1984) (despite Lemon’s usefulness, we are “unwillin[g] to be confined to any single test or criterion in 
 

 

 

 

Cite as: 565 U. S. ____ (2011) 5 

THOMAS, J., dissenting 

this sensitive area”); Hunt v. McNair, 413 U. S. 734, 741 

(1973) (Lemon provides “no more than helpful signposts”).

Most recently, in Van Orden, 545 U. S. 677, a majority of 

the Court declined to apply the Lemon/endorsement test in

upholding a Ten Commandments monument located on 

the grounds of a state capitol.2 Yet in another case decided the same day, McCreary County v. American Civil 

Liberties Union of Ky., 545 U. S. 844, 859–866 (2005), the 

Court selected the Lemon/endorsement test with nary a 

word of explanation and then declared a display of the Ten

Commandments in a courthouse to be unconstitutional. 

See also Van Orden, supra, at 692 (SCALIA, J., concurring) 

(“I join the opinion of THE CHIEF JUSTICE because I think 

it accurately reflects our current Establishment Clause 

jurisprudence—or at least the Establishment Clause 

jurisprudence we currently apply some of the time”). 

Thus, the Lemon/endorsement test continues to “stal[k]

our Establishment Clause jurisprudence” like “some ghoul

in a late-night horror movie that repeatedly sits up in its

grave and shuffles abroad, after being repeatedly killed 

and buried.” Lamb’s Chapel v. Center Moriches Union 

Free School Dist., 508 U. S. 384, 398 (1993) (SCALIA, J., 

concurring in judgment). 

Since Van Orden and McCreary, lower courts have 

understandably expressed confusion. See American Civil 

Liberties Union of Ky. v. Mercer Cty., 432 F. 3d 624, 636 

—————— 

2 In Van Orden, a plurality determined that the nature of a government display and our Nation’s historical traditions should control. 545 

U. S., at 686; see also ibid. (“Whatever may be the fate of the Lemon 

test in the larger scheme of Establishment Clause jurisprudence, we 

think it not useful in dealing with the sort of passive monument that 

Texas has erected”). In a concurring opinion, JUSTICE BREYER considered the “basic purposes of the First Amendment’s Religion Clauses 

themselves” rather than “a literal application of any particular test.” 

Id., at 703–704 (opinion concurring in judgment); see also id., at 700 

(“[I]n [difficult borderline] cases, I see no test-related substitute for the

exercise of legal judgment”). 
 

 

 

 

6 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

(CA6 2005) (after McCreary and Van Orden, “we remain in 

Establishment Clause purgatory”).3 This confusion has 

caused the Circuits to apply different tests to displays of 

religious imagery challenged under the Establishment 

Clause. Some lower courts have continued to apply the 

Lemon/endorsement test.4 Others have followed Van 

—————— 

3See also Green v. Haskell Cty. Bd. of Comm’rs, 574 F. 3d 1235, 1235 

n. 1 (CA10 2009) (Kelly, J., dissenting from denial of rehearing en banc)

(noting that “[w]hether Lemon . . . and its progeny actually create 

discernable ‘tests,’ rather than a mere ad hoc patchwork, is debatable”

and describing the “judicial morass resulting from the Supreme Court’s 

opinions”); Card v. Everett, 520 F. 3d 1009, 1016 (CA9 2008) (“Confounded by the ten individual opinions in [McCreary and Van Orden]

. . . courts have described the current state of the law as both ‘Establishment Clause purgatory’ and ‘Limbo’ ” (citation omitted)); id., at 

1023–1024 (Fernandez, J., concurring) (applauding the majority’s 

“heroic attempt to create a new world of useful principle out of the

Supreme Court’s dark materials” and lamenting the “still stalking 

Lemon test and the other tests and factors, which have floated to the 

top of this chaotic ocean from time to time,” as “so indefinite and 

unhelpful that Establishment Clause jurisprudence has not become 

more fathomable” (footnote omitted)); Skoros v. New York, 437 F. 3d 1, 

13 (CA2 2006) (“[W]e confront the challenge of frequently splintered

Supreme Court decisions” and Justices who “have rarely agreed—in 

either analysis or outcome—in distinguishing the permissible from the

impermissible public display of symbols having some religious significance”); Staley v. Harris Cty., 461 F. 3d 504, 515 (2006), (Smith, J., 

dissenting) (admonishing the majority for failing to “integrate 

McCreary and Van Orden into as coherent a framework as possible”),

dism’d as moot on rehearing en banc, 485 F. 3d 305 (CA5 2007). 4See American Civil Liberties Union of Ohio Foundation, Inc. v. 

DeWeese, 633 F. 3d 424, 431 (CA6 2011) (applying Lemon); Green v. 

Haskell Cty. Bd. of Comm’rs, 568 F. 3d 784, 797–798, and n. 8 (CA10

2009) (“While the Supreme Court may be free to ignore Lemon, this 

court is not. Therefore, we cannot . . . be guided in our analysis by 

the Van Orden plurality’s disregard of the Lemon test” (citations and 

internal quotation marks omitted)); Skoros, supra, at 17, and n. 13 

(“The Lemon test has been much criticized over its twenty-five year 

history. Nevertheless, the Supreme Court has never specifically 

disavowed Lemon’s analytic framework. . . . Accordingly, we apply 

Lemon” (citations omitted)); American Civil Liberties Union of Ky. v. 
 

Cite as: 565 U. S. ____ (2011) 7 

THOMAS, J., dissenting 

Orden.5 One Circuit, in a case later dismissed as moot, 

applied both tests.6 

Respondents assure us that any perceived conflict is

“artificial,” Brief in Opposition 8, because the lower courts 

have quite properly applied Van Orden to “the distinct 

class of Ten Commandments cases” indistinguishable from 

Van Orden and have applied the Lemon/endorsement test

to other religious displays. Id., at 12, 16. But respondents’ “Ten Commandments” rule is nothing more than a

thinly veiled attempt to attribute reason and order where

none exists. Respondents offer no principled basis for

applying one test to the Ten Commandments and another 

test to other religious displays that may have similar 

relevance to our legal and historical traditions. Indeed, 

that respondents defend the purportedly uniform application of one Establishment Clause standard to the “Ten 

Commandments’ realm” and another standard to displays

of other religious imagery, id., at 16, speaks volumes

about the superficiality and irrationality of a jurisprudence meant to assess whether government has made a 

—————— 

Mercer Cty., 432 F. 3d 624, 636 (CA6 2005) (“Because McCreary County 

and Van Orden do not instruct otherwise, we must continue to” apply 

“Lemon, including the endorsement test”). 5See Card, supra, at 1018 (applying JUSTICE BREYER’s concurring 

opinion in Van Orden, which “carv[ed] out an exception” from Lemon 

for certain displays); ACLU Neb. Foundation v. Plattsmouth, 419 F. 3d 

772, 778, n. 8 (CA8 2005) (en banc) (“Taking our cue from Chief Justice

Rehnquist’s opinion for the Court and Justice Breyer’s concurring 

opinion in Van Orden, we do not apply the Lemon test”); see also Trunk 

v. San Diego, 629 F. 3d 1099, 1107 (CA9 2011) (JUSTICE BREYER’s 

controlling opinion in Van Orden “establishes an ‘exception’ to the 

Lemon test in certain borderline cases,” but “we need not resolve the 

issue of whether Lemon or Van Orden control” because “both cases 

guide us to the same result”). 6See Staley, supra, at 508–509, and n. 6 (applying Lemon/

endorsement and JUSTICE BREYER’s concurrence in Van Orden after 

concluding that the objective observer standard of the endorsement test 

was “implicit” in JUSTICE BREYER’s opinion). 
8 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

law “respecting an establishment of religion.” See Card v. 

Everett, 520 F. 3d 1009, 1016 (CA9 2008) (describing 

“Recent Developments in Ten Commandments Law”). But 

even assuming that the lower courts uniformly understand Van Orden to apply only to those religious displays 

“factually indistinguishable” from the display in Van 

Orden, Brief in Opposition 16, that understanding conflicts with JUSTICE BREYER’s controlling opinion. JUSTICE 

BREYER’s concurrence concluded that there is “no testrelated substitute for the exercise of legal judgment” or

“exact formula” in “fact-intensive,” “difficult borderline 

cases.” 545 U. S., at 700 (opinion concurring in judgment). 

Nothing in his opinion indicated that only Ten Commandments displays identical to the one in Van Orden call 

for a departure from the Lemon/endorsement test. 

Moreover, the lower courts have not neatly confined Van 

Orden to similar Ten Commandments displays. In Myers 

v. Loudoun Cty. Public Schools, 418 F. 3d 395, 402, and 

n. 8 (2005), the Fourth Circuit applied the Van Orden 

plurality opinion and JUSTICE BREYER’s concurring analysis to resolve an Establishment Clause challenge to a 

statute mandating recitation of the Pledge of Allegiance. 

In Staley v. Harris Cty., 461 F. 3d 504, 511–512 (2006),

dism’d as moot on rehearing en banc, 485 F. 3d 305 (2007),

the Fifth Circuit applied Van Orden to a monument displaying an open bible. And, in Green v. Haskell Cty. Bd. of 

Comm’rs, 568 F. 3d 784, 796–797 (2009), the Tenth Circuit 

applied the Lemon/endorsement test to hold unconstitutional a Ten Commandments monument located on the 

grounds of a public building and surrounded by other

secular monuments, facts materially indistinguishable 

from those in Van Orden. 

Respondents further suggest that any variation among 

the Circuits concerning the Establishment Clause standard for displays of religious imagery is merely academic,

for much like the traditional Lemon/endorsement inquiry, 
 

 

Cite as: 565 U. S. ____ (2011) 9 

THOMAS, J., dissenting 

JUSTICE BREYER’s opinion in Van Orden considered the 

“context of the display” and the “message” it communicated. Brief in Opposition 8–12, and n. 5 (internal quotation

marks omitted); see Van Orden, 545 U. S., at 701–702 

(BREYER, J., concurring in judgment); id., at 703 (“For

these reasons, I believe that the Texas display . . . might 

satisfy this Court’s more formal Establishment Clause 

tests”). I do not doubt that a given court could reach the 

same result under either test. See ACLU Neb. Foundation 

v. Plattsmouth, 419 F. 3d 772, 778, n. 8 (CA8 2005) (en

banc) (upholding the constitutionality of a display of the

Ten Commandments under either standard); Trunk v. San 

Diego, 629 F. 3d 1099, 1107, 1125 (CA9 2011) (concluding 

that the display of a cross was unconstitutional under

either standard). The problem is that both tests are so 

utterly indeterminate that they permit different courts to 

reach inconsistent results. Compare Harris v. Zion, 927 

F. 2d 1401 (CA7 1991) (applying Lemon/endorsement to

strike down a city seal bearing a depiction of a cross), with 

Murray v. Austin, 947 F. 2d 147 (CA5 1991) (applying 

Lemon/endorsement to uphold a city seal bearing a depiction of a cross); compare also Plattsmouth, supra (applying 

Van Orden to uphold a display of the Ten Commandments), with Staley, supra (applying Van Orden to strike 

down a display of a Bible). As explained below, it is “the 

very ‘flexibility’ of this Court’s Establishment Clause 

precedent” that “leaves it incapable of consistent application.” Van Orden, supra, at 697 (THOMAS, J., concurring). 

III

 In Allegheny, a majority of the Court took the view that

the endorsement test provides a “sound analytical framework for evaluating governmental use of religious symbols.” 492 U. S., at 595 (opinion of Blackmun, J.); id., at 

629 (O’Connor, J., concurring in part and concurring in

judgment) (“I . . . remain convinced that the endorsement 
10 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

test is capable of consistent application”). That confidence 

was misplaced. Indeed, JUSTICE KENNEDY proved prescient when he observed that the endorsement test amounted 

to “unguided examination of marginalia,” “using little

more than intuition and a tape measure.” Id., at 675–676 

(opinion concurring in judgment in part and dissenting 

in part).

Since the inception of the endorsement test, we have

learned that a creche displayed on government property 

violates the Establishment Clause, except when it doesn’t.

Compare id., at 579–581 (opinion of Blackmun, J.) (holding unconstitutional a solitary creche, surrounded by a 

“fence-and-floral frame,” bearing a plaque stating “This

Display Donated by the Holy Name Society,” and located 

in the “main,” “most beautiful,” and “most public” part of a

county courthouse (internal quotation marks omitted), and 

Smith v. County of Albemarle, 895 F. 2d 953, 955, and n. 2 

(CA4 1990) (holding unconstitutional a creche consisting 

of “large figures, easily visible, and illuminated at night,” 

bearing a disclaimer reading “‘Sponsored and maintained 

by Charlottesville-Albemarle Jaycees not by Albemarle 

County,’” and located on the lawn of a county office building), with Lynch, 465 U. S., at 671 (upholding a creche 

displaying 5-inch to 5-foot tall figures of Jesus, Mary, 

Joseph, angels, shepherds, kings, and animals, surrounded by “a Santa Claus house, reindeer pulling Santa’s

sleigh, candy-striped poles, a Christmas tree, carolers, 

cutout figures representing such characters as a clown,

an elephant, and a teddy bear, hundreds of colored 

lights, [and] a large banner that rea[d] ‘SEASONS

GREETINGS,’” situated in a park in the “heart of the

shopping district”), American Civil Liberties Union of Ky. 

v. Wilkinson, 895 F. 2d 1098, 1099, 1104 (CA6 1990) (upholding a 15-foot stable “furnished with a manger, two 

large pottery jugs, a ladder, railings, and some straw, but 

not with the figurines or statues commonly found in a 
Cite as: 565 U. S. ____ (2011) 11 

THOMAS, J., dissenting 

crèche,” bearing a disclaimer stating that “‘This display 

. . . does not constitute an endorsement by the Commonwealth of any religion,’” and located on the grounds of the 

state capitol, 100 yards from a Christmas tree), and Elewski v. Syracuse, 123 F. 3d 51, 52 (CA2 1997) (upholding a

solitary creche, raised on a platform “two feet above sidewalk level,” containing “statues representing Jesus, Mary,

and Joseph, a shepherd, a donkey, a lamb, and an angel” 

holding a banner reading “ ‘Gloria in Excelsis Deo,’” “illuminated at night by two forty-watt spotlights” located in a 

park on a “major downtown thoroughfare,” 300 feet from 

a menorah and down the street from secular holiday 

symbols).

Likewise, a menorah displayed on government property

violates the Establishment Clause, except when it doesn’t.

Compare Kaplan v. Burlington, 891 F. 2d 1024, 1026, 1030 

(CA2 1989) (holding unconstitutional a solitary 16- by 12­

foot menorah, bearing a sign stating “ ‘Happy Chanukah’” 

and “‘Sponsored by: Lubavitch of Vermont,’” located 60 

feet away from City Hall, and “appear[ing] superimposed

upon City Hall” when viewed from “the general direction 

of the westerly public street”), with Allegheny, supra, at

587, 582 (opinion of Blackmun, J.) (upholding an “18-foot

Chanukah menorah of an abstract tree-and-branch design,” placed next to a 45-foot Christmas tree, bearing a

sign entitled “‘Salute to Liberty,’” and located outside of a

city-county building), and Skoros v. New York, 437 F. 3d 1 

(CA2 2006) (upholding school policy permitting display of 

menorah along with the Islamic star and crescent, the 

Kwanzaa kinara, the Hebrew dreidel, and a Christmas 

tree, but prohibiting a creche). 

A display of the Ten Commandments on government 

property also violates the Establishment Clause, except 

when it doesn’t. Compare Green, 568 F. 3d, at 790 (holding unconstitutional a monument depicting the Ten Commandments and the Mayflower Compact on the lawn of a 
12 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

county courthouse, among various secular monuments and

personal message bricks, with a sign stating “‘Erected by 

Citizens of Haskell County’”), and American Civil Liberties Union of Ohio Foundation, Inc. v. DeWeese, 633 F. 3d 

424, 435 (CA6 2011) (holding unconstitutional a poster of 

the Ten Commandments and “seven secular ‘Humanist 

Precepts’” in a courtroom, with “editorial comments” that 

link religion and secular government), with Van Orden, 

545 U. S., at 681–682 (plurality opinion) (upholding a

monument depicting the Ten Commandments, the Eye of 

Providence, an eagle, and the American flag and bearing a

sign stating that it was “‘Presented . . . by the Fraternal 

Order of Eagles,’” among various secular monuments, on

the grounds of a state capitol (some capitalization omitted)), Card, 520 F. 3d 1009 (same, on the grounds of old 

city hall), Plattsmouth, 419 F. 3d, at 778, n. 8 (same, in a 

city park), and Mercer Cty., 432 F. 3d, at 633 (upholding a

poster of the Ten Commandments, along with eight other

equally sized “American legal documents” and an explanation of the Commandments’ historical significance, in a 

courthouse).

Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held 

here, except when it doesn’t. Compare Friedman v. Board 

of Cty., Comm’rs of Bernalillo Cty., 781 F. 2d 777, 779 

(CA10 1985) (holding unconstitutional a county seal displaying a Latin cross, “highlighted by white edging and a 

blaze of golden light,” under the motto “‘With This We

Conquer’” written in Spanish), Harris, 927 F. 2d, at 1404 

(holding unconstitutional one city seal displaying a cross 

on a shield, surrounded by a dove, crown, scepter, and a

banner proclaiming “‘God Reigns,’” and another city seal 

displaying a cross surrounded by a one-story building, a 

water tower, two industrial buildings, and a leaf), and 

Trunk, 629 F. 3d 1099 (holding unconstitutional a 29- by 

12-foot cross atop a 14-foot high base on the top of a hill, 
 

 

Cite as: 565 U. S. ____ (2011) 13 

THOMAS, J., dissenting 

surrounded by thousands of stone plaques honoring military personnel and the American flag), with Murray, 947 

F. 2d 147 (upholding a Latin cross, surrounded by a pair of 

wings, in a city insignia), and Weinbaum v. Las Cruces, 

541 F. 3d 1017, 1025 (CA10 2008) (upholding “three interlocking crosses,” with a white, slightly taller center cross, 

surrounded by a sun symbol, in a city insignia, as well as 

a cross sculpture outside of a city sports complex and a

mural of crosses on an elementary school wall). See also 

Salazar v. Buono, 559 U. S. ___, ___ (2010) (plurality 

opinion) (slip op., at 14–15) (“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”). 

One might be forgiven for failing to discern a workable

principle that explains these wildly divergent outcomes.

Such arbitrariness is the product of an Establishment 

Clause jurisprudence that does nothing to constrain judicial discretion, but instead asks, based on terms like “context” and “message,” whether a hypothetical reasonable

observer of a religious display could think that the government has made a law “respecting an establishment of 

religion.”7 Whether a given court’s hypothetical observer 

will be “any beholder (no matter how unknowledgeable), or 

the average beholder, or . . . the ‘ultra-reasonable’ beholder,” Capitol Square Review and Advisory Bd. v. Pinette, 

515 U. S. 753, 769, n. 3 (1995) (plurality opinion), is en­

—————— 

7That a violation of the Establishment Clause turns on an observer’s 

potentially mistaken belief that the government has violated the Constitution, rather than on whether the government has in fact done 

so, is perhaps the best evidence that our Establishment Clause jurisprudence has gone hopelessly awry. See McCreary County v. American 

Civil Liberties Union of Ky., 545 U. S. 844, 901 (2005) (SCALIA, J., 

dissenting) (describing the “oddity” that “the legitimacy of a government action with a wholly secular effect would turn on the misperception of an imaginary observer”). 
14 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

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THOMAS, J., dissenting
 

tirely unpredictable. Indeed, the Tenth Circuit stated 

below that its observer, although not “omniscient,” would

“know far more than most actual members of a given

community,” and then unhelpfully concluded that “[h]ow

much information we will impute to a reasonable observer

is unclear.” 616 F. 3d, at 1159 (internal quotation marks 

omitted). But even assuming that courts could employ

observers of similar insight and eyesight, it is “unrealistic 

to expect different judges . . . to reach consistent answers 

as to what any beholder, the average beholder, or the

ultrareasonable beholder (as the case may be) would 

think.” Pinette, supra, at 769, n. 3. 

IV 

It comes as no surprise, then, that despite other cases

holding that the combination of a Latin cross and a public 

insignia on public property does not convey a message of 

religious endorsement, see Murray, supra; Weinbaum, 

supra, the Tenth Circuit held otherwise. And, of course, 

the Tenth Circuit divided over what, exactly, a reasonable 

observer would think about the Association’s memorial 

cross program.

First, the members of the court disagreed as to what a

reasonable observer would see. According to the panel,

because the observer would be “driving by one of the memorial crosses at 55-plus miles per hour,” he would not see

the fallen officer’s biographical information, but he would 

see that the “cross conspicuously bears the imprimatur of 

a state entity . . . and is found primarily on public land.” 

616 F. 3d, at 1160. According to the dissenters, on the

other hand, if the traveling observer could see the police 

insignia on the cross, he should also see the much larger 

name, rank, and badge number of the fallen officer emblazoned above it. 637 F. 3d, at 1108–1109 (opinion of Gorsuch, J.); id., at 1104 (opinion of Kelly, J.). The dissenters 

would also have employed an observer who was able to 
Cite as: 565 U. S. ____ (2011) 15 

THOMAS, J., dissenting 

pull over and view the crosses more thoroughly and would 

have allowed their observer to view four of the memorials 

located on side-streets with lower speed limits. Id., at 

1109 (opinion of Gorsuch, J.).

Next, the members of the court disagreed about what a 

reasonable observer would feel. The panel worried that

the use of a Christian symbol to memorialize fallen officers

would cause the observer to think the Utah Highway

Patrol and Christianity had “some connection,” leading

him to “fear that Christians are likely to receive preferential treatment from the [patrol]—both in their hiring

practices and, more generally, in the treatment that people may expect to receive on Utah’s highways.” 616 F. 3d, 

at 1160. The dissenters’ reasonable observer, however, 

would not take such a “paranoid,” “conspiratorial view of 

life,” “conjur[ing] up fears of religious discrimination” by a

“‘Christian police,’” especially in light of the more plausible explanation that the crosses were simply memorials. 

637 F. 3d, at 1105 (opinion of Kelly, J.). The panel also 

emphasized that the “massive size” of these crosses would 

heighten the reasonable observer’s fear of discrimination

and proselytization, unlike the “more humble spirit of 

small roadside crosses.” 616 F. 3d, at 1161–1162. The 

dissenters, by contrast, insisted that the size of the crosses

was necessary to ensure that the reasonable observer

would “take notice of the display and absorb its message” 

of remembrance and to ensure that the crosses could 

contain all of the secular facts necessary to assuage the 

reasonable observer’s fears. 637 F. 3d, at 1105–1106 

(opinion of Kelly, J.). 

Finally, the members of the court disputed what the

reasonable observer would know. The panel acknowledged

that the reasonable observer would recognize that the 

crosses commemorated death, but he would see only that 

the symbol “memorializes the death of a Christian.” 616 

F. 3d, at 1161. That the designers of the cross memorials 
 

 

16 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

 ATHEISTS, INC. 

THOMAS, J., dissenting
 

were Mormons, or that Christians who revere the cross are 

a minority in Utah, would have no effect on him. Id., 

at 1163–1164. Conversely, the dissenters’ reasonable

observer would have known that the crosses were chosen 

by the fallen officer’s family and erected by a private group 

without design approval from the State, and that most 

Utahns do not revere the cross.8 637 F. 3d, at 1110 (opinion of Gorsuch, J.); id., at 1105 (opinion of Kelly, J.). 

To any truly “reasonable observer,” these lines of disagreement may seem arbitrary at best. But to be fair to the 

Tenth Circuit, it is our Establishment Clause jurisprudence that invites this type of erratic, selective analysis of 

the constitutionality of religious imagery on government 

property. These cases thus illustrate why “[t]he outcome

of constitutional cases ought to rest on firmer grounds 

than the personal preferences of judges.” Van Orden, 545 

U. S., at 697 (THOMAS, J., concurring). 

V 

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 

prohibits “‘actual legal coercion,’” see id., at 693, the 

Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought. Indeed, five 

sitting Justices have questioned or decried the Lemon/

endorsement test’s continued use. Salazar, 559 U. S., 

at ___–___ (plurality opinion of KENNEDY, J., joined in full 

by ROBERTS, C. J., and in part by ALITO, J.) (slip op., at 

15–18) (emphasizing criticism of the endorsement test and 

—————— 

8According to the statement of undisputed facts before the District

Court, approximately 57 percent of Utahns are members of the Church 

of Jesus Christ of Latter-day Saints. Neither the Church nor its 

members use the cross as a symbol of their religion or in their religious 

practices. American Atheists, Inc. v. Duncan, 528 F. Supp. 2d 1245, 

1249 (Utah 2007). 
 

 

 

 

 

 

 

Cite as: 565 U. S. ____ (2011) 17 

THOMAS, J., dissenting 

its workability); id., at ___ (ALITO, J., concurring in part 

and concurring in judgment) (slip op., at 6) (“Assuming 

that it is appropriate to apply the so-called ‘endorsement 

test,’ this test would not be violated [here]”); Pinette, 515 

U. S., at 768, n. 3 (plurality opinion of SCALIA, J.) (The

endorsement test “supplies no standard whatsoever”); Van 

Orden, supra, at 692–693 (THOMAS, J., concurring) (“This

case would be easy if the Court were willing to abandon 

the inconsistent guideposts it has adopted for addressing 

Establishment Clause challenges,” citing, inter alia, the 

Lemon and endorsement tests); Allegheny, 492 U. S., at 

669 (KENNEDY, J., concurring in judgment in part and 

dissenting in part) (“[T]he endorsement test is flawed in 

its fundamentals and unworkable in practice”); see also 

McCreary County, 545 U. S., at 890 (2005) (SCALIA, J., 

joined in full by Rehnquist, C. J., and THOMAS, J., and in 

part by KENNEDY, J., dissenting) (“[A] majority of the 

Justices on the current Court . . . have, in separate opinions, repudiated the brain-spun ‘Lemon test’”). 

And yet, six years after Van Orden, our Establishment 

Clause precedents remain impenetrable, and the lower

courts’ decisions—including the Tenth Circuit’s decision 

below—remain incapable of coherent explanation. It is 

difficult to imagine an area of the law more in need of 

clarity, as the 46 amici curiae who filed briefs in support 

of certiorari confirm. Respondents tell us there is no

reason to think that a case with facts similar to this one 

will recur, Brief in Opposition 17, but if that counsels

against certiorari here, this Court will never again hear 

another case involving an Establishment Clause challenge

to a religious display. It is this Court’s precedent that has 

rendered even the most minute aesthetic details of a 

religious display relevant to the constitutional question. 

We should not now abdicate our responsibility to clean up 

our mess because these disputes, by our own making, are 
18 UTAH HIGHWAY PATROL ASSN. v. AMERICAN

 ATHEISTS, INC. 

THOMAS, J., dissenting
 

“factbound.”9 This suit, which squarely implicates the 

viability and application of the Lemon/endorsement test,10 

is as ripe a suit for certiorari as any.11 

—————— 

9 In any event, respondents’ incredible assertion is belied by the fact 

that, two days after respondents filed their brief in opposition to certiorari in our Court, respondents sued the Port Authority of New York 

City and demanded removal of a cross located at Ground Zero. See 

Complaint in American Atheists, Inc. v. Port Auth. of New York, No. 

108670–2011 (N. Y. Sup. Ct.); Notice of Removal in American Atheists, 

Inc. v. Port Auth. of New York, No. 1:11–cv–06026 (SDNY). 10That the petition of the Association presents the question whether 

the cross memorials in this suit are government speech is no obstacle to

certiorari. The Court need not grant certiorari on that question, and 

the state petitioners only ask this Court to resolve the viability and

application of the endorsement test. 11Respondents argue that this suit would be a poor vehicle to explore 

the contours of a coercion-based Establishment Clause test because the 

State has raised the specter of a preference for one religion over others. 

In this regard, respondents point out that the State took the position

before the lower courts that it would not be able to approve the Association’s memorials “ ‘in the same manner’ ” if the Association, as it indicated it would, allowed an officer’s family to request a symbol other 

than a cross. Brief in Opposition 3–4, 31. 

Because no such situation has ever arisen, and because the State has 

only indicated it could not approve a different marker in the same 

manner as the roadside crosses, respondents distort the record by

claiming that the State has put families to the choice of “a Latin cross

or no roadside memorial at all.” Id., at 4. Moreover, it is undisputed 

that the State’s position stemmed from its belief that “if [the Association] were to change the shape of the memorial to reflect the religious

symbol of the fallen trooper, rather than the shape of the cross, the 

memorial would no longer be a secular shape recognized as a symbol of 

death.” App. to Brief in Opposition 9a–15a (emphasis added). That 

position is entirely consistent with the Tenth Circuit’s conclusion that 

the purposes of the State and Association in permitting and implementing the memorial program were secular. In any event, that the State

and Association, both defending the memorial program’s constitutionality, took conflicting positions about whether it was impermissibly

religious to use only crosses, or impermissibly religious to use other 

symbols reflective of the deceased’s religious preference, only highlights

the confusion surrounding the Establishment Clause’s requirements. 
 

 

 

Cite as: 565 U. S. ____ (2011) 19 

THOMAS, J., dissenting
 

* * * 

 Concurring in Allegheny, JUSTICE O’CONNOR wrote that 

“the courts have made case-specific examinations” of

government actions in order to avoid “sweep[ing] away all 

government recognition and acknowledgment of the role of

religion in the lives of our citizens.” 492 U. S., at 623 

(opinion concurring in part and concurring in judgment). 

But that is precisely the effect of this Court’s repeated

failure to apply the correct standard—or at least a clear,

workable standard—for adjudicating challenges to government action under the Establishment Clause. Government officials, not to mention everyday people who

wish to celebrate or commemorate an occasion with a 

public display that contains religious elements, cannot 

afford to guess whether a federal court, applying our

“jurisprudence of minutiae,” id., at 674 (KENNEDY, J., 

concurring in judgment in part and dissenting in part),

will conclude that a given display is sufficiently secular.

The safer course will be to “purge from the public sphere 

all that in any way partakes of the religious.” Van Orden, 

545 U. S., at 699 (BREYER, J., concurring in judgment). 

Because “the Establishment Clause does not compel” that 

result, ibid., I would grant certiorari.