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The U.S. Supreme Court announced Monday that it would not review the decision of the U.S. Court of Appeals for the 10th Circuit that memorial crosses erected in Utah honoring fallen state troopers were unconstitutional. And because the displays were erected by a private organization using private funds, the Supreme Court's decision "not to decide" simply kicks the Establishment Clause "can" a bit further down the road, and otherwise does very little to clarify what is constitutional in such matters.

At least that's the opinion that Justice Clarence Thomas expressed in his dissent. The court, he said, should have taken the case.

Since 1998, the Utah Highway Patrol Association has erected memorial crosses to commemorate the lives of officers who died in the line of duty. The 12-foot-by-6-foot crosses, a total of 14, have been placed as close to the exact location of an officer's death as possible.

The fallen officer's name, rank and badge number are emblazoned across the full length of the horizontal beam while the symbol of the Utah Highway Patrol, the year of the officer's death, and a plaque displaying the officer's picture, biographical information, and details of his death are on the vertical beam.

Not only were these crosses posted by the Utah State Highway Patrol Association, they were designed and are owned and maintained by the same.

Despite the conspicuously private origins of these memorial crosses, American Atheists brought suit alleging that the memorials violated the First Amendment's prohibition on a government establishment of religion. The given grounds for the suit are that some of the memorial crosses, though privately owned and maintained, are located on public property.

But the Supreme Court itself seriously questioned that reasoning when it wrote last year in another memorial cross case, "The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. 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 governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society."

It's clear that these roadside crosses are not government endorsements of religion in Utah; they are memorial expressions of the families honoring the sacrifice of officers who died in the line of duty serving the public. Such simple and obvious facts illuminate why Justice Thomas was so concerned about the court's refusal to review the 10th Circuit's decision. In his words, "the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought."

Justice Thomas sees the Supreme Court's non-decision here as yet another contributing factor to an "Establishment Clause jurisprudence in shambles," where no one really understands how the court might rule in a given case with memorials that can be interpreted by some as "religious." It represents a shift further from the objective rule of law and what America's founders intended, and instead makes us more vulnerable to the whims of the most easily offended observers — like those who see an effort to "establish" religion in memorials like the crosses in Utah.

Thomas writes: "[Over the years], we have learned that a crèche displayed on government property violates the Establishment Clause, except when it doesn't .… . Likewise, a menorah displayed on government property violates 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 … . [And] finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn't."

Although the high court's decision will be trumpeted by some as a victory for American Atheists and similar groups, the sober-minded among us ought to consider Thomas' words and understand that the Establishment Clause waters are no less muddy today than they were last week.

As with any decision "not to decide," this fight will continue until consistent decisions, based on the objective rule of law rather than the subjective whims of men, are handed down.

Frank D. Mylar, a Salt Lake attorney, was co-counsel for the Utah Highway Patrol Association with the Alliance Defense Fund (http://www.telladf.org).