Justice Thomas dissents from denial of cert on the Utah cross memorial case.
Thomas rips into Lemon:
Unsurprisingly, the Tenth Circuit relied on its own precedent, rather than on any of this Court’s cases, when it selected the Lemon/endorsement test as its governing analysis. Our jurisprudence provides no principled ba- sis by which a lower court could discern whether Lemon/endorsement, or some other test, should apply in Establishment Clause cases. Some of our cases have simply ignored the Lemon or Lemon/endorsement formulations. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Good News Club v. Milford Central School, 533 U. S. 98 (2001); Marsh v. Chambers, 463 U. S. 783 (1983). Other decisions have indicated that the Lemon/endorsement testis useful, but not binding. Lynch v. Donnelly, 465 U. S. 668, 679 (1984) (despite Lemon’s usefulness, we are “unwillin[g] to be confined to any single test or criterion in this sensitive area”); Hunt v. McNair, 413 U. S. 734, 741 (1973) (Lemon provides “no more than helpful signposts”).Most recently, in Van Orden, 545 U. S. 677, a majority of the Court declined to apply the Lemon/endorsement test inupholding a Ten Commandments monument located on the grounds of a state capitol.2 Yet in another case decided the same day, McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 859–866 (2005), the Court selected the Lemon/endorsement test with nary a word of explanation and then declared a display of the TenCommandments in a courthouse to be unconstitutional. See also Van Orden, supra, at 692 (SCALIA, J., concurring) (“I join the opinion of THE CHIEF JUSTICE because I think it accurately reflects our current Establishment Clause jurisprudence—or at least the Establishment Clause jurisprudence we currently apply some of the time”). Thus, the Lemon/endorsement test continues to “stal[k]our Establishment Clause jurisprudence” like “some ghoulin a late-night horror movie that repeatedly sits up in itsgrave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398 (1993) (SCALIA, J., concurring in judgment).
The bulk of the opinion points out the indeterminancy of the Lemon test and the endorsement test.
One might be forgiven for failing to discern a workableprinciple that explains these wildly divergent outcomes.Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion, but instead asks, based on terms like “context” and “message,” whether a hypothetical reasonableobserver of a religious display could think that the government has made a law “respecting an establishment of religion.”7 Whether a given court’s hypothetical observer will be “any beholder (no matter how unknowledgeable), or the average beholder, or . . . the ‘ultra-reasonable’ beholder,” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 769, n. 3 (1995) (plurality opinion), is entirely unpredictable.
Once again, Justice Thomas stands alone.