The US Supreme Court on Monday declined to take up a case testing whether a Wisconsin public school district violated the First Amendment’s separation of church and state by conducting its high school graduation ceremony in a local church auditorium.
The case, Elmbrook School District v. Doe, was seen by some analysts as a potential vehicle for the justices to further clarify the high court’s Establishment Clause jurisprudence following the court’s opinion issued on May 5 upholding the conduct of a prayer before public meetings in the Town of Greece, N.Y.
Instead, the court rejected the school district’s petition without comment.
The action allows an appeals court decision barring the district from using the church auditorium to stand.
In a dissent from the decision not to hear the case, Justice Antonin Scalia said the high court should have taken up the case or, at a minimum, granted the petition, vacated the appeals court decision, and remanded the case back to the appeals court to issue a new decision consistent with the Supreme Court’s opinion in the Town of Greece prayer case.
Justice Scalia said much of the foundation of the earlier appeals court’s Elmbrook decision had been undermined by the high court’s Town of Greece decision. Scalia’s dissent was joined by Justice Clarence Thomas.
No other justices commented on the Elmbrook case.
Scalia said that holding a high school graduation in a rented church auditorium was not an endorsement of religion and did not coerce those attending the graduation to engage in government-compelled worship. He added that Elmbrook’s use of a church for graduation was consistent with a history and tradition of many public schools renting religious venues for graduations.
“In this case, it is beyond dispute that no religious exercise whatever occurred,” Scalia said. “At most, respondents complain that they took offense at being in a religious place.”
The justice added: “Were there any question before, Town of Greece made obvious that this is insufficient to state an Establishment Clause violation.”
Critics of the public prayers at the Town of Greece meetings had said they were an unconstitutional endorsement of religion and were coercing citizens to participate in worship. The high court rejected those arguments and upheld the town’s ability to offer pre-meeting prayers.
Similar arguments were made in opposition to holding a high school graduation ceremony in a church auditorium.
There was no allegation in the Elmbrook case that the school district chose the church in an effort to proselytize. Instead, the issue was whether the religious symbols and the overall religiosity of the church building amounted to an unconstitutional endorsement of religion by government.
A majority of the full Seventh US Circuit Court of Appeals said it did. “Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive … a message of endorsement,” the appeals court said.
The Seventh Circuit added that conducting the public school’s graduation ceremony in the church was “religiously coercive” to the graduates and others who attended the ceremony.
In a statement, the Rev. Barry Lynn of Americans United for Separation of Church and State said he was pleased with the high court’s decision not to hear the Elmbrook case.
“The matter was resolved correctly by the court of appeals,” he said. “This case should serve as a warning to public schools that it’s not appropriate to hold important ceremonies like graduation in a religious setting.”
Alex Luchenitser, also of Americans United, argued the case at the appeals court and had urged the high court to reject the school district’s petition.
“No student should ever be forced to choose between missing their own graduation and attending that seminal event in a proselytizing environment inundated with religious icons and exhortations,” he said in a statement.
Others disagreed. “Church buildings should not be treated like toxic warehouses simply because they normally house religious activities. That has never been the intent of the First Amendment,” David Cortman of the group Alliance Defending Freedom said in a statement.
“We hope the Supreme Court will clearly affirm in a future case that government neutrality toward religion is not achieved by treating it like asbestos in the ceiling tiles of society,” he said.
In his brief urging the court to take up the Elmbrook case, Stanford Law School Professor Michael McConnell said the Seventh Circuit’s ruling was in conflict with decisions in other appeals courts upholding the use of church buildings for government purposes such as graduation ceremonies, classrooms, polling places, and post offices.
If allowed to stand, he said, the decision would unsettle longstanding practices in public schools and expose local governments to church-state litigation.
The Elmbrook School District had used the church auditorium for graduations from 2000 to '09.
None of the speeches or other content of the graduation ceremony involved a prayer, religious message, or an attempt to proselytize. And there was no suggestion that school officials were seeking to use the venue as a means to troll for religious converts.
Instead, the Chicago-based appeals court found that the church building – replete with displays of crosses and other symbols of the Christian faith – amounted to a religion-saturated and proselytizing environment.
In his dissent, Scalia said the Elmbrook case stemmed from litigants who were offended by public displays of religion.
“Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended,” Scalia wrote.
“I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky.”
Scalia said that the decision in the Town of Greece case held that mere offense does not amount to a violation of the Establishment Clause.
“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,” he said.
Although there were eleven nonreligious venues available to the school district, none including favorable features of the church, according to district officials. The church offered a large air conditioned, handicapped-accessible auditorium with comfortable seating, ample free parking, and two large “jumbotron” video screens. It was also close to the school.
The church charged a standard rental rate of $2,000 to $2,200 per graduation.
But not everyone was happy. A group of nine students and parents complained that attending the event in a church containing religious symbolism made them feel uncomfortable, offended, unwelcome, and angry.
They sued, asking a federal judge to order the school district to stop using the church. The judge ruled in favor of the school district, and a thee-judge appeals court panel agreed, upholding the decision 2-1.
The case then was taken up by the full Seventh Circuit. It is that court that reversed and ruled that the arrangement violated church-state separation.
Although the case has continued in the courts, Elmbrook School District no longer has to rely on a rented venue for its graduation. The district completed a renovation to a high school gymnasium where graduations now take place.
But another nearby school has had to make alternative arrangements after the appeals court decision. The school is renting Miller Park, a 42,200-seat baseball stadium at a cost three times that of the Elmwood Church.
“After the decision below, only a rare school district would risk $400,000 in attorneys’ fees to save $15,000 in graduation costs,” Professor McConnell said in his brief.