Clarence Thomas

“ Brief in Opposition 8, because the lower courts have quite properly applied Van Orden to "the distinct class of Ten Commandments cases" indistinguishable from Van Orden and have applied the Lemon/endorsement test to other religious displays. Id., at 12, 16. But respondents' "Ten Commandments" rule is nothing more than a thinly veiled attempt to attribute reason and order where none exists. Respondents offer no principled basis for applying one test to the Ten Commandments and another test to other religious displays that may have similar relevance to our legal and historical traditions. ”

“ The dissenters' reasonable observer, however, would not take such a "paranoid," "conspiratorial view of life," "conjur [ing] up fears of religious discrimination" by a "'Christian police,'" especially in light of the more plausible explanation that the crosses were simply memorials. 637 F. 3d, at 1105 (opinion of Kelly, J.) . The panel also emphasized that the "massive size" of these crosses would heighten the reasonable observer's fear of discrimination and proselytization, unlike the "more humble spirit of small roadside crosses." ”

“ 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 ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried." ”

“ Finally, the members of the court disputed what the reasonable observer would know. The panel acknowledged that the reasonable observer would recognize that the crosses commemorated death, but he would see only that the symbol "memorializes the death of a Christian." 616 F. 3d, at 1161. That the designers of the cross memorials
page 16, slip opinion were Mormons, or that Christians who revere the cross are a minority in Utah, would have no effect on him. ”

“ We should not now abdicate our responsibility to clean up our mess because these disputes, by our own making, are
page 18, slip opinion "factbound." [9] This suit, which squarely implicates the viability and application of the Lemon/endorsement test, [10] is as ripe a suit for certiorari as any. [11]
↑ 9 In any event, respondents' incredible assertion is belied by the fact that, two days after respondents filed their brief in opposition to certiorari in our Court, respondents sued the Port Authority of New York City and demanded removal of a cross located at Ground Zero. ”