As is its custom, the court gave no reasons for declining to hear the case. Justice Clarence Thomas issued a 19-page dissent, saying the court had rejected “an opportunity to provide clarity to an establishment-clause jurisprudence in shambles.”
The crosses are white and about 12 feet tall, with six-foot crossbars. They were donated by the Utah Highway Patrol Association, a private group, and placed near where the troopers had died. The crosses bear a trooper’s name, picture, badge number and biographical information, along with the symbol of the Utah Highway Patrol.
The Supreme Court’s establishment-clause jurisprudence has been shifting and confusing. The two appeals the court declined to hear on Monday — Davenport v. American Atheists, No. 10-1297, and Utah Highway Patrol Association v. American Atheists, No. 10-1276 — would have given the court an opportunity to clarify the murky guidance it has provided in this area.
The open questions start with the very meaning of the message conveyed by a cross. A three-judge panel of the United States Court of Appeals for the 10th Circuit, in Denver, ruled that the Latin cross was “unequivocally a symbol of the Christian faith.”
But that question has divided the justices as recently as last year, in Salazar v. Buono, a decision concerning a cross that had served as a war memorial in a remote part of the Mojave Desert.
“A Latin cross is not merely a reaffirmation of Christian beliefs,” Justice Anthony M. Kennedy wrote, joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. By way of example, Justice Kennedy wrote that “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 government support for sectarian beliefs.”
Justice John Paul Stevens, who retired last year, rejected that view. “The cross is not a universal symbol of sacrifice,” he wrote in a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. “It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.”