Earlier this year, the Supreme Court upheld the practice of a small town in New York to open its council meetings with prayer, specifically prayers that were exclusively Christian. As I noted at the time, that decision struck me as a reasonable interpretation of the Establishment Clause and the proper role of religion in government, especially given the rather de minimis impact of legislative prayer. In addition to that case, the Court had also been considering whether to grant an appeal in a case out of the 7th Circuit involving a school district that had the practice of holding its graduations in a church facility. Lower courts had found the practice to be unconstitutional, but there was some thought that the Court might take the case to clarify its views on religion in schools in light of the decision earlier this year. As it turned out, however, the Court denied the appeal, although the denial did prompt Justice Scalia to take the unusual step of issuing a dissent to the denial:
The U.S. Supreme Court on Monday (June 16) let stand a lower court ruling that a Wisconsin high school acted unconstitutionally when it held its graduation ceremonies in a local megachurch.
The case, Elmbrook School District. v. Doe, involved a high school in a suburb of Milwaukee that rented the nondenominational Elmbrook Church for its graduation exercises multiple times through 2009. In 2012, the Chicago-based 7th U.S. Circuit Court of Appeals called the event “offensive” and “coercive.” The church’s banners, pamphlets, Bibles and other religious materials remained in the sanctuary during the graduation.
As is their custom, the justices did not give a reason for declining to hear a challenge to the 7th Circuit ruling.
Monday’s decision may be a signal by the court that despite its approval of sectarian prayers at public meetings in the Town of Greece v. Galloway decision in May, it draws the line at exposing children to religious symbols when they have no choice about it.
Justices Antonin Scalia and Clarence Thomas dissented in the decision to let the lower court ruling stand. They argued in a seven-page opinion that the Greece v. Galloway decision undercut the 7th Circuit decision in Elmbrook.
In the dissent, Scalia, a Catholic, likened the exposure of children to religious symbols at graduations to his own distaste for the public playing of “rock music or Stravinsky,” implying he — and they — have to put up with it but are not damaged by it.
“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,’” Scalia wrote. “But Town of Greece makes manifest that an establishment of religion it was not.”
Notwithstanding Scalia’s comments, Lyle Denniston points out correctly that this decision points out the extent to which the Court treats issues regarding government and religion much differently when they impact children:
The Supreme Court sent a fairly clear signal on Monday that its new willingness to allow more religion in public life probably does not mean that it will allow children to be exposed to more such symbolism when they don’t have a choice about it. Over two Justices’ fervent dissent, the Court voted to leave intact a lower court ruling that it is unconstitutional to hold a high school graduation ceremony in a church with prominent religious banners and objects.
The Court issued only a one-line order denying review of a case that it had been holding (Elmbrook School District v. Doe) until it had decided a case about the recital of prayers at local government meetings. But, in so doing, the Court silently rejected the suggestion of the dissenters that it return the school graduation case to a lower court to take into account the prayers decision (Town of Greece v. Galloway, decided May 5).
Because the Court never explains its refusals to hear a case, there is no way to know what led it to bypass a case, especially when some of the Justices have pressed it energetically to grant review, as almost certainly happened behind the scenes with the Elmbrook case. The case was listed for the Justices’ discussion ten times after they had decided the Town of Greece case.
The dissenting opinion by Justice Antonin Scalia, joined by Justice Clarence Thomas, gave significant hints about what those discussions could have covered. Those two argued that theTown of Greece decision had undercut the basis of the lower court ruling against holding graduation rites in a church, that the town board prayers case had made it harder to prove coercion from exposure to religious symbols, and that the case also had demanded a more searching study of the historic background of a practice involving some form of religious expression or display, which the dissenters said the lower court did not do. None of those arguments, spelled out in a seven-page opinion, moved the rest of the Court.
The practical result is that the lower court decision — by the U.S. Court of Appeals for the Seventh Circuit — becomes binding, at least for the school system involved in the case: a public school district in Brookfield, Wisconsin, a western suburb of Milwaukee. School officials, finding school facilities too cramped or uncomfortable for graduation exercises, moved them to the sanctuary of a local non-denominational, evangelical church. That sanctuary was dominated by a very large Christian cross and a number of religious banners, and there were Bibles, hymnals, and religious literature in the pews where students and their families would be seated.
The en banc Seventh Circuit, splitting seven to three, ruled that the exposure of the students and their younger siblings to such symbolism was a form of coercion of religious beliefs. The school district asked the Supreme Court to take up the case, arguing that there was no attempt to promote religious views on the audience at the ceremonies.
As I’ve noted many times in the past, it’s usually mistaken to draw any kind of meaning from the Court’s denial of a specific appeal. In this case, though, it seems rather obvious that the Court was sending the signal that its decision in Town of Greece was not intended to impact the logic behind the long line of case law dealing with the proper role of religion in public schools. Indeed, one could possibly even say that the Court is implying that there may be different standards for even de minimis governmental acknowledgments of religion depending on whether the intended audience is primarily made up of adults or children. There are several reasons why such a distinction would make sense, of course. As Denniston notes, children in public schools do not have the same choice to be present that an adult at a public meeting does, meaning that actions that tend to advance religious ideas in schools have an inherently coercive nature that necessitates greater scrutiny. Additionally, since children generally don’t have the same judgment skills and willingness to speak out against authority figures that adults do, religious endorsements by school officials are potentially more intimidating. These are ideas that have served as the underpinning of nearly every Supreme Court case dealing with religion in public education since the landmark case of Engle v. Vitale, which struck down New York’s mandatory school prayers.
In this particular case, the Court’s denial of certiorari means that the 7th Circuit’s ruling that the practice of holding graduation ceremonies in churches is unconstitutional. This strikes me as a correct result. If the ceremonies were being held in a church-owned property that wasn’t filled with religious symbols, then perhaps it would be a different story, but a public school graduation in a church is clearly beyond the pale. Eventually, however, I think it’s clear that the Supreme Court will have to deal with the impact that the Town of Greece decision has on its religion in schools case law. This was not the case in which that would happen.
Here’s the Scalia/Thomas dissent:
