The Story: The Seventh Circuit Court of Appeals issued a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and symbolism in the building.
The Background: The court ruled in Doe v. Elmbrook School District that a high school administration violated the First Amendment’s no-religious-establishments by holding a graduation ceremony in a church building because of that particular building’s “proselytizing environment.”
As Richard Garnett explains, there was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise. The court wrote:
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 link between church and state. That is, the activity conveyed a message of endorsement.
Why It Matters: The ruling appears to be a peculiar and disconcerting expansion of the Supreme Court’s already flawed Establishment Clause jurisprudence. The ruling does not explain what type or number of religious imagery constitutes a “proselytizing environment.” If this standard is allowed to become a precedent, future rulings could determine that any religious imagery creates an environment of proselytization and must be excluded.
Judge Richard Posner, in a blistering (and often humerous) dissent, addresses the absurdity of the claim:
But could it be that the cross and the banners and other religious paraphernalia visible to occupants of the auditorium of the Elmbrook Church would predispose attendants at the graduation to join the church, thus giving the evangelical sect that owns it a competitive advantage? And might not the conferral of such an advantage be thought a form of establishment? But the plaintiffs find the church offensive, and are thus in no danger of being converted. There is no suggestion that holding a high-school graduation at the Elmbrook Church has ever triggered a conversion. How often are visitors to churches converted by the visit? Conversion generally precedes attendance. How many of the millions of non-Catholic visitors to St. Peter’s—- Protestants, Jews, Muslims, Hindus, Buddhists, atheists, and so forth – have converted to Christianity as a result of their visit to that awesome site? I mean no disrespect to the Elmbrook Church in pointing out that no counterpart to the treasures of St. Peter’s that include Bernini’s baldacchino and Michelangelo’s Pietà, the tombs of 91 Popes, a fragment of the True Cross, and the spear that pierced Christ’s side at the Crucifixion (of course the authenticity of the last two items has been questioned), is to be found there.
[. . .]
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. Religion is for good or ill a large component of human culture, including American culture. Religious words and symbols are ubiquitous. I have heard oral argument in this court on more than a thousand occasions, and every session has begun with a member of the court’s staff intoning “God save the United States and this honorable court.” Should this outcry, or the religious paintings in the National Gallery in Washington (another federal facility), seen over time by millions, be considered an establishment of religion? Does it send trial lawyers running to the baptismal font? The court crier’s phrase, if thought anything other than a fossil trace of a more unselfconsciously Christian era in the nation’s history, can’t be interpreted as anything other than a governmental expression of belief in one God who influences the fortunes of our nation and may even if properly appealed to protect the United States Court of Appeals for the Seventh Circuit. It is explicitly religious, but it is also innocuous.
