Monday, October 31, 2011

Justice Clarence Thomas Writes That Establishment Clause Jurisprudence in Shambles ( Full Text)

The Court decided not to hear the Utah highway Cross case today. Justice Clarence Thomas gave a rather lengthy Dissent on the choice. The full text can be here . Thomas does a good job in pointing out how all inconsistent this is and there is no workable standard.

He gives a list of examples and looks at the different out comes to the situation below. As he points out:


..creche displayed on government property violates the Establishment Clause, except when it doesn’t..


Likewise, a menorah displayed on government propertyviolates the Establishment Clause, except when it doesn’t...


..A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t. ..


..Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t ..

One problem of course is why exactly Justice Thomas thinks that a coalition of 5 Justices or more would provide clarity this time. However he is right that this is all slightly a mess I think.

This just came out this morning so many legal sites have not given commentary. I hope to update this post tonight with that. One place that has comment is Bench Memos over at National Review. The observation is made:

,,,,I gather from footnote 11 of Justice Thomas’s opinion that concerns over whether surviving family members could select a symbol other than a cross (and thus over whether the case was a good vehicle for clarifying the confusion in case law) may explain the Court’s denial of review.

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