Thomas: Establishment Clause Jurisprudence 'In Shambles'

This from The School Law Blog:

Justice Clarence Thomas on Monday said that the U.S. Supreme Court's establishment-clause jurisprudence is "in shambles."

Citing divergent lower-court opinions on the display of crosses, the Ten Commandments, and other religious messages in courthouses, city halls, and public schools, Thomas said "our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone's guess."

"Even if the court does not share my view that the establishment clause restrains only the federal government, and that, even if incorporated [i.e., applied to the states], the clause only prohibits actual legal coercion, the court should be deeply troubled by what its establishment clause jurisprudence has wrought," Thomas said in a lone dissent from the court's denial of certiorari in Utah Highway Patrol Association v. American Atheists Inc. (Case No. 10-1276).

The Supreme Court on Oct. 31 refused to hear the case involving white crosses placed on or near spots where members of the Utah Highway Patrol were killed while on duty. The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that although the crosses were placed by a private group, their location predominantly on public property conveyed a message that the state of Utah endorsed Christianity.

In his 19-page dissent, Thomas referred to a number of school cases that, in his view, reflect confusion or inconsistent application by lower courts of the Supreme Court's rulings under the First Amendment's prohibition against government establishment of religion...