Last term, Justice Kennedy said in Salazar v. Buono, that a “cross by the side of a public highway,” marking “where a state trooper perished,” was not a statement of “governmental support for sectarian beliefs,” and therefore, would not violate the Establishment Clause.

As Lee Corso would say: Not so fast Justice Kennedy!

In August of 2010, the Tenth Circuit held otherwise. A three-judge panel concluded that a reasonable observer driving past a memorial with 12-feet high crosses (used to signify the secular purpose of honoring fallen State Troopers) would “fear that Christians are likely to receive preferential treatment” from the Utah Highway Patrol. The court went on to say that the display of crosses conveys to a “reasonable observer” that Utah “prefers or otherwise endorses Christianity.”

Several judges voiced vigorous dissents from rehearing en banc and noted the end result of the panel’s ruling:

Confronted with the court’s decision, governments face a Hobson’s choice: foregoing memorial crosses or facing litigation. The choice most cash-strapped governments would choose is obvious, and it amounts to a heckler’s veto. Some might greet that result with enthusiasm—but it is certainly not required by the constitution.

BEWARE: I am going to digress here for a moment before I get to the petition for certiorari that was filed in this case.

Now I know the “reasonable person” test has a long pedigree in American jurisprudence. But is there another test that is more maddening? Exactly what a reasonable person would do or think in a particular circumstance gives judges carte blanche to do whatever they think is reasonable under the circumstances. Or what they think the Supreme Court will say a reasonable person would do.

We should be more honest and call it the “reasonably subjective judge” test.

Since we are talking about legal fictions here, let’s assume that I am a reasonable person (my wife could tell you why this is a fiction!) driving in Utah. So I am driving along at 55 mph, and I see a large white cross with a deceased trooper’s name on it in big black letters. The last thing I would think is that, as a Christian, I will be treated preferentially in Utah. Like I can now speed up to 80 mph, because state troopers will give me a pass if I can recite John 3:16 when they pull me over.

If this is what a reasonable person would think than I need to be committed. Again!

Okay, we better stop with the digression.

Look, even as a person of religious conviction, I believe in separation between church and state. But this case borders on the preposterous—which is one reason why the Supreme Court may very well take it. (Just think what it would mean for Arlington National Cemetery.)

The cert petition argues additional reasons why the Court should review the Tenth Circuit’s decision:

This case presents an ideal vehicle for resolving a three-way circuit split on an important question of constitutional law. The circuit courts are divided 2-2-1 on whether the “endorsement test” articulated by Justice O’Connor’s concurrence in Lynch v. Donnelly, 465 U.S. 668 (1984), or the “legal judgment test” presented by Justice Breyer’s concurrence in Van Orden v. Perry, 545 U.S. 677 (2005), supplies the proper framework for evaluating Establishment Clause challenges to passive displays with religious imagery.

This Court’s review is needed to resolve the conflict among the lower courts (not to mention the confusion among local, state, and federal officials) regarding when a public display that has an unquestionably secular purpose nonetheless violates the Establishment Clause.

Moreover, the Tenth Circuit’s decision, if left undisturbed, will effectively render unconstitutional roadside crosses to memorialize the dead in Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah—while they remain entirely permissible by highways across the rest of the Nation.

I think the Court will take this case because a majority of Justices oppose the endorsement test, and I don’t think they will hesitate to change it—if ever there was an unworkable precedent, it is the Court’s current endorsement test.

If the Court does take the case, it will not be heard until next term. So next term, we could have an Establishment Clause case, a case challenging the Affordable Care Act, a case on Affirmative Action, and possibly the Prop 8/Gay Marriage case.

As my friend Mike Sacks said: “I’ve said it before and I’ll say it again: next term is going to be a doozy.”

The case is Davenport, et al., v. American Atheists, et al. (no docket number has been assigned as of 4/22). For additional coverage of Davenport, you can check out the Salt Lake Tribune, the Volokh Conspiracy, the Audacity of Reason, the Digital Journal, and the American Atheists.