Tuesday, June 17, 2014

Supreme Court Denies Certiorari in Elmbrook School District: The "Graduation in a Church" Case

Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe.  The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.

Recall as we discussed almost two years ago,  the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.  Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway  - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."

image via

Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:

Some there are—many, perhaps—who are 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. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

(emphasis in original).

However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.



Courts and Judging, Establishment Clause, First Amendment, History, Religion, Supreme Court (US) | Permalink

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On May 27, 2014, I attended a seminar presented by Prof. Scott Gaylord of Elon University School of Law. The seminar was titled – “A Brave New (First Amendment) World: How the Roberts Court Found Religion.” Study was concentrated on the holding in Town of Greece, NY v. Galloway and the search for consistency between the tests established and applied in Marsh v. Chambers and Pleasant Grove City v. Summum.

In my humble opinion, had the 7th Circuit not expressly limited its holding in Elmbrook, I think the trajectory for cert being granted may have been substantially altered. In particular, the en banc 7th Circuit prefaced the opinion:

"Before advancing the reasoning behind our decision, it is important to note the limited scope of this opinion. The ruling should not be construed as a broad statement about the propriety of governmental use of church-owned facilities. Rather, the holding is a narrowly focused one, as it must be under our Supreme Court's jurisprudence. [citations omitted] * * * We do not question the vitality of those decisions; rather, we underscore how this case differs. The difference is one of degree, not kind. When confronted with an Establishment Clause challenge of this nature, the Supreme Court requires us to examine the context in which government interacts with a religious organization. Here, the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the District's actions to withstand the strictures of the Establishment Clause.

We do not speculate whether and when the sanctuary of a church, or synagogue, or mosque could hold public school ceremonies in a constitutionally appropriate manner. Nor do we seek to determine whether and when this sanctuary, or one akin to it, could be properly used as the setting for a graduation under other circumstances. For example, if a church sanctuary were the only meeting place left in a small community ravaged by a natural disaster, we would confront a very different case. It is not our charge to consider the myriad alterations to the factual scenario before us in an attempt to determine what circumstances could have rendered the District's practice constitutional. Rather, our duty is to consider the set of facts before us, and on those facts, we conclude that an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbrook Church."

I think where Justice Scalia is grumbling is that, generally, we tolerate what may be termed offensive speech in order to protect our rights to speech which may similarly offend. His analogy to music as a benign form of expression which may be offensive to him does not extend a right “to be protected from being offended by the music” (expression) by legal recourse. However, we have extended the recourse for an “offense” related to the “trappings” of religion by wrapping it in the Establishment Clause. I would proffer that the language of Justice Scalia’s dissent reflects that mere “offense” does not constitute “compell[ing]…citizens to engage in religious observance.”

In distinction, I think it uncontested that incident to entry and egress in Elmbrook there existed extensive proselytization. That, I would argue – not the physical facility or its “trappings,” left the public subject to some form of potential religious observance despite the history of student votes (choosing from three locations from 2000 until 2005) selecting the venue.

Posted by: Tom N | Jun 17, 2014 10:42:04 PM

For this man to have had the effrontery to co-write a treatise on interpretation, and then to toss off "the First Amendment explicitly favors religion" emphasizes the depth to which the analytical work of the US Supreme Court has fallen. And he was the author of Employment Division v. Smith! I don't want to emulate his result-oriented sophistry, but will he be applying this protocol to other constitutional issues? I believe that the First Amendment "favors" speech, so will Scalia uphold the speech rights of anyone other than corporations?

Posted by: Jeffrey G. Purvis | Jun 18, 2014 4:33:47 PM

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