Utah Highway Patrol Ass'n v. American Atheists, Inc.
The Supreme Court declined to hear an appeal over whether large white cross memorials honoring fallen Utah Highway Patrol officers, placed partly on public land, violated the separation of church and state.
Justice Thomas dissented from the denial, arguing the Court's confusing and inconsistent Establishment Clause tests have left lower courts unable to predict which religious displays on government property are constitutional.
How it got here: A federal trial court upheld the cross memorials; a Tenth Circuit panel reversed and found them unconstitutional; rehearing en banc was denied over four dissents; the Supreme Court then denied certiorari.
The Case in Depth
What happened
A private group, the Utah Highway Patrol Association, erected 13 large white cross memorials—many on public roadside land—to honor troopers killed in the line of duty, each bearing the trooper's name and the Patrol's insignia. American Atheists, Inc. and some of its members sued state officials, arguing the crosses on state land amounted to government endorsement of Christianity.
The question before the Court
Should the Supreme Court have stepped in after a court of appeals ruled that giant roadside crosses honoring fallen Utah troopers amounted to unconstitutional religious endorsement?
Why it matters
Because the Court refused to weigh in, the Tenth Circuit's ruling against the cross memorials stands, and other courts around the country remain free to apply different, sometimes conflicting tests to religious displays on public property—leaving governments, private groups, and families uncertain about what commemorative displays are legally safe.
What changes now
Because certiorari was denied, the Supreme Court did not decide the constitutional question, and the Tenth Circuit's ruling against the cross memorials remains in effect for that circuit. The broader legal uncertainty Justice Thomas described persists nationwide, since no majority opinion resolved which Establishment Clause test governs religious displays on government property, leaving the door open for similar disputes to return to the Court later.
What this does not decide
This is an order denying certiorari, not a ruling on the merits. The Supreme Court did not decide whether the cross memorials are constitutional, did not adopt or reject any particular Establishment Clause test, and left the Tenth Circuit's decision undisturbed without endorsing its reasoning.
Concurrences and dissents
Dissent — Justice Thomas
“Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”Thomas's opening criticism of the Court's decision not to hear the case.
Justice Thomas argued the Court should have granted certiorari to clarify its 'nebulous' Establishment Clause tests, which he said let lower courts reach inconsistent, unpredictable results on nearly identical religious displays. He detailed conflicting circuit rulings on crosses, creches, menorahs, and Ten Commandments monuments to show the doctrine offers no workable standard. He would have granted review to resolve which test—Lemon/endorsement or the Van Orden approach—actually governs, and separately noted his view that the Establishment Clause restrains only the federal government and requires actual legal coercion.
How the Court got there
The legal reasoning, step by step
- The Tenth Circuit panel applied the Lemon/endorsement test, which asks whether a government practice has the purpose or effect of endorsing religion in the eyes of a hypothetical 'reasonable observer.'
- The panel concluded that even though the memorials had a secular purpose, a reasonable observer driving by would see a Christian cross bearing the state patrol's emblem on public land and would perceive state endorsement of Christianity.
- Four Tenth Circuit judges dissented from denial of rehearing en banc, arguing the panel wrongly presumed the crosses unconstitutional first and then searched for contextual facts to rebut that presumption, rather than asking upfront whether a reasonable observer would actually perceive endorsement.
- In dissenting from the Supreme Court's denial of certiorari, Justice Thomas argued that the Court's own precedents give lower courts no principled way to choose between the Lemon/endorsement test and the approach used in Van Orden v. Perry, producing inconsistent outcomes across similar religious displays nationwide.
- Justice Thomas concluded that this unpredictability—illustrated by conflicting rulings on nearly identical creches, menorahs, Ten Commandments displays, and crosses—showed the case was a suitable vehicle for the Court to clarify the governing standard, but the majority of the Court disagreed and left the petition undecided on the merits.