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June 20, 2014 2

Public H.S. Graduation In Church? Good News, Bad News From High Court

The good news is that the U.S. Supreme Court recently denied hear­ing an appeal of a lower court case — Doe v. Elm­brook School Dis­trict - which effec­tively affirms sep­a­ra­tion of church and state prin­ci­ples in the pub­lic schools.   The bad news is that Jus­tice Scalia issued an alarm­ing dis­sent which uses the Court’s already dis­turb­ing May 5th leg­isla­tive prayer deci­sion —  Greece v. Gal­loway  — to advance his long­stand­ing con­sti­tu­tional world view against church-state separation.religion-public-schools-supreme-court

The Sev­enth Circuit’s Elm­brook deci­sion involved a school district’s use of a church for high school grad­u­a­tions cer­e­monies over nine years.  Alter­na­tive sec­u­lar loca­tions were avail­able, but the dis­trict super­in­ten­dent, who is a mem­ber of the church, approved its use.  Dur­ing grad­u­a­tion cer­e­monies, the church refused to cover a 15–20 foot Latin Cross at the front of the sanc­tu­ary.  Bibles and hym­nal books remained in the pews.  And the church lobby, which is the only route for vis­i­tors to the sanc­tu­ary and a nat­ural con­gre­gat­ing point, con­tained reli­gious lit­er­a­ture, much of which addressed chil­dren and teens, sym­bols, ban­ners, and posters. The Sev­enth Cir­cuit ruled that these cir­cum­stances con­sti­tuted uncon­sti­tu­tional reli­gious endorse­ment and coercion.

Jus­tice Scalia’s appli­ca­tion of the Greece deci­sion in the pub­lic school con­text is akin to putting a square peg in a round hole.  Greece involved a nar­row, historically-based excep­tion to the Estab­lish­ment Clause for leg­isla­tive prayer, which has no rel­e­vance beyond that con­text.  But that fact did not get in the way of Scalia using the deci­sion to issue a dis­sent pro­mot­ing his view of the First Amendment’s Estab­lish­ment Clause merely pro­hibit­ing an offi­cial state reli­gion and gov­ern­ment com­pelled worship.  

Accord­ing to Scalia, the Elm­brook deci­sion required Supreme Court review for two main rea­sons.   First, the Greece deci­sion elim­i­nated the impor­tant, decades-old endorse­ment test, which means that the Seventh’s Circuit’s con­clu­sion about the school dis­trict endors­ing reli­gion is void.  Sec­ond, the Sev­enth Circuit’s rul­ing on reli­gious coer­cion is invalid because in his view Greece stands for the across-the-board prin­ci­ple that there can­not be reli­gious coer­cion with­out state com­pelled reli­gious wor­ship, which did not occur in the Elm­brook case.

Advo­cates for sep­a­ra­tion of church and state greeted the Greece deci­sion with deep trep­i­da­tion.  Its dis­crete rul­ing allows overtly sec­tar­ian prayers in one-faith tra­di­tion before local leg­isla­tive bod­ies.  As a result, com­mu­nity mem­bers seek­ing redress from such pub­lic bod­ies – par­tic­u­larly those in the reli­gious minor­ity — will likely feel pres­sure to par­tic­i­pate in reli­gious obser­vances not of their own faith.  Fur­ther­more, the decision’s rea­son­ing could be taken out of con­text and used beyond the nar­row con­text of leg­isla­tive prayer.  Jus­tice Scalia’s dis­sent jus­ti­fies that fear.   Although his dis­sent is not bind­ing on any court, oppo­nents of the sep­a­ra­tion prin­ci­ple will undoubt­edly attempt to use it to for­ward their agenda in the pub­lic schools and beyond.