Justices still considering whether to take up establishment case

As graduation approached during the spring of 2000, the senior class of Central High school, in Brookfield, Wis., decided that the gymnasium of the school, which had been for many years the scene of commencement ceremonies, was not an adequate venue. It was hot and uncomfortable, not air conditioned, and the audience was packed onto wooden benches, obviously unsuitable for a suburban Milwaukee high school.

The students wanted the ceremony moved, and requested that the school consider using the Elmbrook Church, a local evangelical Christian church with an impressive building and sanctuary. School authorities concurred, and negotiated lease terms with the church. Subsequent classes agreed with the preference. Graduations were held in the church by Central and, after 2002, East High School.

Construction of a new field house by the school district ended the practice in 2010.

This was a case bound to create controversy. The school district made an eminently practical and popular decision. Objections came from a minority of current and former students and their parents, whom the court describes as "not Christians." They objected to their children being graduated in a sectarian setting of a religion they did not share. Discussions went on for several years, and suit was brought by several parents in 2009. (Because the district will not promise never to use the church again, the cessation of the practice has not caused the case to be ruled moot.)

The plaintiffs claimed the use of the church was violation of the Establishment Clause of the U.S. Constitution. Thomas Jefferson's "wall of separation" of church and state has been frequently invoked in similar circumstances. Over the years, the Supreme Court has ruled in many cases under the clause, and its greatest consistency has been the consistent disagreement among the justices.

To refresh your recollection, the First Amendment provides, "Congress shall make no law respecting an establishment of religion." (The prohibition extends to the states by incorporation in the 14th Amendment.)

The district court dismissed the suit, and a 3-judge panel of the 7th U.S. Circuit Court of Appeals affirmed. When the case was referred for rehearing to the full 7th Circuit sitting en banc, it reversed, holding that the practice violated the Establishment Clause. Supreme Court review has been requested, but the high court has not yet decided whether to take the case. Elmbrook School District v. Doe, No. 12-755.

The Supreme Court's interpretations of the Establishment Clause have been many and various, but can be broken down into several distinct categories. The court has been firm in striking down school-sponsored prayer in the public school classroom, and equally so with respect to attempts to include biblical Creationism into school curriculums. It has been permissive when government funds are allocated for educational purposes in religious schools, finding such support neutral, most recently approving the use of vouchers which allowed parents to pay parochial school tuition with public dollars.

But it has divided in several areas. Two cases involving display of the Ten Commandments outside the school context resulted in opposite decisions, approved in one case and not in another. And two cases of municipal inclusion of creches, seen as Christian symbols, in municipal holiday season displays resulted in contrary holdings.

The result has been that the Court of Appeals, in its opinion in the Elmbrook case, declared that in deciding whether a given situation constitutes a constitutional violation, "The determination is case-specific: whether a particular practice violates the Establishment Clause is in large part a legal question to be answered on the basis of judicial interpretation of social facts" which "must be judged in their unique circumstances."

The precedents on which the circuit court relied in deciding the case are two cases of religion in public school contexts outside the classroom, in one case at a middle school graduation ceremony, and another at a high school football game.

In Lee v Weisman (1992), the invocation and benediction by a clergyman (in this case a rabbi) at a middle school graduation were challenged. The court found that although not formally required of graduates, the occasion of graduation was virtually a mandate, and that attendance was hardly to be considered as wholly voluntary. The subjection of all present to prayer represented, in the court's opinion, endorsement of religion, and violated the Establishment Clause. The opinion also spoke of subtle "coercion" as a further basis for legitimate objection. "Once the school district creates a captive audience, the coercive potential of endorsement can operate." A similar result was found in a case involving student initiated public prayer at Friday night high school football games. Santa Fe Independent School District v. Doe (2000).

The 7th Circuit found these two precedents controlling. It reached that conclusion by analyzing the environment in which the graduation took place. It noted the sizable cross (15 to 20 feet tall) within the sanctuary and the fact that all those entering the church must pass through a lobby replete with religious literature. "Put simply, the environment was pervasively Christian, obviously aimed at nurturing Christian beliefs and gaining new adherents among those who set foot inside the church."

Three dissenters (of a total panel of 10) disagreed, denying that simply exposing the graduates to the religious elements was in any way coercive. They pointed out that many churches are used for voting in elections. Richard Posner, one of the most respected appeals court judges in the country, was among the dissenters. His objections to the decision were many and various, including this observation: "The idea that mere exposure to religious imagery, with no accompanying proselytizing, is a form of religious establishment has no factual support, as well as being implausible."

The endorsement and coercion tests used by the court bypass the more traditional Lemon test, which asks whether a secular purpose can be found for the practice in question, or whether it advances or inhibits religion. There is a clear secular purpose here, but whether the placement advances religion is a close question. The result in the case would probably be the same regardless of the test applied.

The Supreme Court has to date neither granted nor denied certiorari. It may be that its grant of certiorari in a case involving a challenge to prayer at the start of town board meetings, Town of Greece v Galloway, No. 12-696, recently announced for hearing in the fall, will result in a major Establishment Clause decision.

The Elmbrook case involves a practical solution to a specific problem made in good faith, a decision popular with the community. Only a handful of objectors, of a minority religion, seek to invoke the Constitution. It may be that it is in situations like these that the Constitution does its best work.

The case may remain on the books at the Court of Appeals level, or may yet be selected as the basis for a major ruling in the church/state area.