The Supreme Court gave no reason for denying the state's petition. But Justice Clarence Thomas wrote a 19-page opinion on why the court should have granted the review. No other justices joined in his opinion. Only four votes from the nine justices are required to grant the review.
Past high court rulings on the issue have "confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess," he wrote.
Thomas suggested the case would have been a good vehicle for a major review and revision of Establishment Clause jurisprudence. "It is hard to imagine an area of the law more in need of clarity," he wrote. The court "should not now abdicate our responsibility to clean up our mess."
"I'm upset at our Supreme Court for not taking the case," he said. "They clearly need to resolve a question that differs depending on where you live in the country."
The appeals court decision, he said, applies to the six states in the 10th circuit — Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah — making crosses illegal in those states, but permissible in every other state.
But Barnard said the case is limited to Utah.
"There are no similar government approved displays or memorial programs for law enforcement officers in other states," he said. No other states allow similar large crosses with state emblems in front of the state offices."
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