Simpson v. United States
The Supreme Court declined to hear a challenge to Utah's practice of allowing a private group to place large white roadside crosses memorializing fallen state troopers, after the Tenth Circuit had ruled the crosses unconstitutional.
Justice Thomas dissented from the denial, arguing that the Court's conflicting tests for judging religious displays on government property have left lower courts hopelessly divided, and that this case was a clean opportunity to bring order to the law.
How it got here: A federal trial court granted summary judgment for the state and the Association; a Tenth Circuit panel reversed and en banc rehearing was denied over dissent; the state and the Association asked the Supreme Court to take the case, which it declined.
The Case in Depth
What happened
A private nonprofit, the Utah Highway Patrol Association, began placing 12-by-6-foot white cross memorials bearing the state patrol's insignia at sites where troopers died in the line of duty, with families' approval. An atheist advocacy group and some of its members sued state officials, arguing the crosses on public land amounted to state endorsement of Christianity in violation of the Establishment Clause.
The question before the Court
Should the Supreme Court have stepped in to clarify how courts decide whether roadside memorial crosses for fallen state troopers violate the separation of church and state?
Why it matters
Because the Court declined to weigh in, the Tenth Circuit's ruling against the cross memorials stands within that circuit, and other courts around the country remain free to keep applying different, sometimes contradictory, tests to religious displays on public property. Governments, private groups, and families who want to place memorials or holiday displays on public land still cannot predict with confidence whether a court will approve or strike down a similar display.
What changes now
Because certiorari was denied, the Tenth Circuit's decision holding the cross memorials unconstitutional remains in effect within that circuit, and the underlying case is not otherwise before the Supreme Court. The broader disagreement among circuits over which test governs religious displays remains unresolved, and Thomas's dissent signals that future cases raising the same conflict may prompt renewed calls for the Court to intervene.
What this does not decide
A denial of certiorari is not a ruling on the merits and sets no precedent; it does not mean the Supreme Court agrees with the Tenth Circuit's reasoning or with the constitutionality of the crosses. It leaves the split among lower courts over which Establishment Clause test applies entirely unresolved.
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 dissented from the denial of certiorari, arguing the Court should have granted review to resolve confusion over which legal test governs Establishment Clause challenges to religious displays on government property. He canvassed dozens of conflicting circuit decisions on crosses, menorahs, and Ten Commandments displays to show the law is unpredictable, and urged the Court to supply a workable standard rather than let lower courts guess.
How the Court got there
The legal reasoning, step by step
- Justice Thomas argued that the Supreme Court has never settled which legal test governs Establishment Clause challenges to religious displays, leaving lower courts to choose on their own between an older three-part test (the 'Lemon' test, which asks about secular purpose, religious effect, and government entanglement with religion) and a related 'endorsement' inquiry asking whether a reasonable observer would see government approval of religion.
- He noted that in some cases the Court has ignored these tests entirely, in others called them merely 'helpful,' and in Van Orden v. Perry accepted a Ten Commandments display without applying them at all, while the same day striking down a similar display in McCreary County using the endorsement test.
- Surveying dozens of circuit court decisions on crosses, menorahs, creches, and Ten Commandments displays, Thomas showed that materially similar displays have been upheld in some circuits and struck down in others, with no principled line separating the outcomes.
- He concluded that the 'reasonable observer' standard at the heart of the endorsement test is inherently unpredictable, since courts disagree about what such an observer would see, feel, and know, making the constitutional outcome depend on judicial intuition rather than a consistent legal rule.
- Because this case cleanly presented that unresolved conflict and had drawn dozens of amicus briefs urging review, Thomas argued the Court should have granted certiorari to supply a workable standard rather than leave the law in what he called an incoherent state.