The Supreme Court of the United States on June 16 denied the petition for a writ of certiorari (appeal) in the case of Elmbrook School District v John Doe.
The case was appealed from the Seventh Circuit, which serves Illinois, Indiana, and Wisconsin. That court ruled en banc in August 2012 that the school district’s practice of conducting graduation ceremonies in a church was unconstitutional, after an initial three-judge panel came to a different conclusion. The Seventh Circuit’s final ruling will remain in effect for public schools in those three states.
“No student should ever be forced to choose between missing their own graduation and attending that seminal event in a proselytizing environment inundated with religious icons and exhortations,” the Milwaukee Journal-Sentinel quoted Alex Luchenitser, associate legal director at Americans United for Separation of Church and State, as saying.
The school district, which serves Brookfield East and Brookfield Central high schools in Brookfield, Wis., has said it plans to respect the court’s decision and conduct its future graduation ceremonies on school district property. The district had conducted ceremonies at Elmbrook Church from 2000 to 2009 “due to the lack of adequate facilities at Brookfield Central and East high schools,” the district acknowledged in a statement. The Supreme Court’s denial of the appeal thus brings 14 years of legal battles to an end.
“Over the years, the board of education has carefully considered all options in determining whether to proceed with this case,” the district’s chief information officer, Chris Thompson, said in a statement. “The district respects the ruling of the court and its denial of certiorari, and looks forward to continuing the practice of celebrating with our graduates and their families in Brookfield East’s field house for years to come.”
In 2012, the Seventh Circuit based part of its ruling on the case of Lemon v Kurtzman, 403 US 602 (1971). That Supreme Court ruling established what has become known as the “primary effect” prong of Lemon: A government body violates the Establishment Clause of the First Amendment if it creates a likelihood that citizens will perceive a link between church and state or get a message endorsing a particular religion.
When the Seventh Circuit ruled, it stressed that people shouldn’t interpret the decision to condemn any possible government use of church-owned facilities. The court made it clear, actually, that it didn’t intend to be critical of the government using, in the proper context, certain facilities owned by a church.
Justices Antonin Scalia and Clarence Thomas entered a dissenting opinion on the record, reminding us that in the recently decided Town of Greece, NY case, the Supreme Court all but abandoned the primary effect prong of Lemon. At the very least, they wrote, the Seventh Circuit should have to reconsider the Elmbrook case in light of the recent ruling in Town of Greece, which certainly seems to contradict the 2012 Seventh Circuit ruling in this case.
Practical considerations and the constitutional question
Constitutionally, the case presents a vital question: Is the government allowed to be neutral toward religion, or must it treat religion as something harmful that should be avoided?
As a practical matter, many school gyms are hot and stuffy, and churches offer air-conditioned, often state-of-the-art venues for ceremonies. Most religious artifacts and icons can be covered up during the ceremony, but what happened in Elmbrook is that the large cross was still shown above the center of the stage.