Last December, Brewster County, Texas Sheriff Ronny Dodson distributed cross-shaped stickers to his deputies, to be placed on the back of official sheriff’s department vehicles. This endorsement of religion became a statewide story when Gov. Greg Abbott (R-TX) backed the sheriff’s decision to associate his office with Christianity.
On Wednesday, the Freedom From Religion Foundation, along with two residents of Brewster County, filed a federal lawsuit seeking to have the stickers removed. According to one of the plaintiffs, the cross stickers “convey the divisive message that non-Christians like himself are not equally valued members of the community and that Christians are favored by the Brewster County Sheriff’s Office and the county government.”
The sheriff’s action is a minor skirmish in a longstanding siege on the wall of separation between church and state, but it is also one whose outcome could very much depend on who gets to fill the late conservative Justice Antonin Scalia’s vacant seat on the Supreme Court.
Relatively liberal justices, including the moderate conservative Justice Sandra Day O’Connor, tend to favor what is know as the “endorsement test” in cases alleging a violation of church/state separation. As O’Connor described this test, the government may not endorse a particular religious belief, or take an action that would convey such a “message of endorsement to the reasonable observer.”
Decorating police cruisers with Christian crosses like the stickers at issue in Brewster County undoubtedly conveys such a message, especially because Sheriff Dodson’s office explicitly stated in a Facebook post that Dodson distributed the stickers because he “wanted God’s protection over his deputies.”
Conservative justices, however, tend to reject the endorsement test. At most, the Court’s conservative wing may enforce a less protective standard that, in Justice Anthony Kennedy’s words, provides that “government may not coerce anyone to support or participate in religion or its exercise.” Under this test, it is likely that Sheriff Dodson’s crosses are permitted. (Although the the Freedom From Religion Foundation may be able to argue that many messages from a law enforcement officer are inherently coercive, given the nature of that officer’s job.)
Prior to Scalia’s death, the Court’s conservative wing started to roll back decisions ensuring robust church/state separation. Now, however, with the Court evenly divided, the fate of precedents outlawing Sheriff Dodson’s crosses is likely to depend on who replaces Scalia.