On June 16, 2014, the Supreme Court of the United States denied certiorari to Doe Ex Rel. Doe v. Elmbrook School Dist. 687 F.3d 840 (7th Cir. 2012), cert. denied, Elmbrook School District v. John Doe 3, 134 S.Ct 2283 (2014), and let stand a decision of the United States Court of Appeals for the Seventh Circuit that ruled that a school district’s practice of holding high school graduation ceremonies at a Christian church violated the Establishment Clause. See, Elmbrook School District v. John Doe 3, 134 S.Ct 2283 (2014)
In response, Justice Scalia, with whom Justice Thomas joined, issued an opinion dissenting from the denial of certiorari. Justice Scalia argued that, in accordance with the recent decision of Town of Greece v. Galloway, 132 S.Ct. 1811 (2014), courts should refrain from applying the Endorsement Test to Establishment Clause claims; that taking offense should not be interpreted as religious coercion; and the courts should conduct an inquiry with respect to historical practice and understanding for purposes of adjudicating Establishment Clause claims.
The case presented a situation in which the student body of the Elmbrook School District decided to hold its high school graduation ceremonies at Elmbrook Church, a nondenominational Christian house of worship. The students of the first school to move its ceremonies preferred the site to what has been the usual venue, the school’s gymnasium. According to Justice Scalia, the move was made based on the fact that the school’s gymnasium was “cramped, hot, and uncomfortable . . . . The church offered more space, air conditioning, and cushioned seating. No one disputes that the church was chosen only because of those amenities.”
Nevertheless, the Seventh Circuit held that the choice of venue violated the Establishment Clause because it failed the Endorsement Test. The Endorsement Test requires a court to ask whether the governmental action has the purpose or effect of “endorsing” religion. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592-94 (1989). According to the Seventh Circuit, the Endorsement Test remains a part of “the prevailing analytical tool for the analysis of Establishment Clause claims.” In the instant case, “the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.” Therefore, the school’s use of a religious venue for a secular ceremony was perceived to have the purpose or effect of endorsing religion.
In disagreement with this view, Justice Scalia noted that, in Town of Greece, the Second Circuit also relied on the Endorsement Test to reach its decision. However, the Supreme Court subsequently reversed the lower court’s decision without applying the Endorsement Test. Specifically, the Court “disput[ed] that [E]ndorsement could be the proper [Establishment Clause] test, as it would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and ‘forthrightly religious’ Thanksgiving proclamations issued by nearly every president since Washington.” 572 U.S., at __ (slip op. at 11) (describing County of Allegheny, supra, at 670-71 (Kennedy, J., concurring in judgment in part and dissenting in part)). Therefore, according to Justice Scalia, after the decision in Town of Greece, the Seventh Circuit’s declaration that the Endorsement Test remains a part of “the prevailing analytical tool” for assessing Establishment Clause challenges, misstates the law.
The Seventh Circuit also held that the school’s practices were in violation of the Establishment Clause because the district’s “decision to use Elmbrook Church for graduations was religiously coercive” under Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000). Justice Scalia disagreed, stating that Lee and Santa Fe are inapposite, as the students were not coerced to engage in school-sponsored prayer, but rather religious exercise was completely absent from the graduation ceremonies. “At most, respondents complain[ed] that they took offense at being in a religious place[,]” as they had asserted that they “‘felt uncomfortable, upset, offended, unwelcome and/or angry’ because of the religious setting” of the graduations. However, the decision in Town of Greece makes clear that mere “[o]ffense . . . does not equal to coercion” in any manner relevant to the proper Establishment Clause analysis[,]” and that “an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views.” As Justice Scalia stated: “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” (quoting Lee, supra, at 640, 112 S.Ct. 2649 (Scalia, J., dissenting)). Further, State ex rel. Conway v. District Board of Joint School Dist. No. 6, 156 N.W. 477, 480 (1916), makes clear that
[a] man may feel constrained to enter a house of worship belonging to a different sect from the one with which he affiliates, but if no sectarian services are carried on, he is not compelled to worship God contrary to the dictates of his conscience, and is not obliged to do so at all . . . . It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution. It may well be . . . that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was “unwise” and “offensive.” But Town of Greece makes manifest that an establishment of religion it was not.
(Emphasis added).
Finally, Justice Scalia addressed the Seventh Circuit’s material omission of an analysis of the historical practices surrounding graduation ceremonies. Town of Greece established that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’” Moreover, “if there is any inconsistency between [a ‘test’ set out in the opinions of this Court] and … historic practice . . . , the inconsistency calls into question the validity of the test, not the historic practice.” Justice Scalia then noted that public schools have long held graduations in churches, and that “[e]arly public schools were often held in rented rooms, church halls and basements, or buildings that resembled Protestant churches.” Further, an 1821 Illinois law provided that a meetinghouse erected by a Presbyterian congregation “may serve to have the gospel breached therein, and likewise may be used for a school-house for the township.” Accordingly, Justice Scalia recommended that the case be remanded to the Seventh Circuit to conduct the historical inquiry mandated by the Supreme Court in Town of Greece.
The delicate balance between religion and public discourse continues in the context of public schools. Please contact a professional at Dalton & Tomich PLC to help guide your organization through these issues.
