Religious Liberty and Freedom of Conscience
Elmbrook School District v. Doe (2012)
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Issue
Whether holding a public high school graduation ceremony at a church violates the Establishment Clause of the First Amendment.
Facts
In 2000, Brookfield Central High School in Brookfield, Wisconsin, chose to hold its graduation ceremonies in Elmbrook Church to provide a more comfortable environment for attendees. Prior to having graduation ceremonies in the church, the school held graduation in a poorly ventilated, cramped, hot school gym. Two years later, Brookfield East High School also chose to hold ceremonies in Elmbrook Church. No one disputes that the purpose for the change of venue was only because of the more comfortable amenities. Every year the administrations of the two schools consulted with the senior class officers to determine where the ceremonies should be held, and every year the students chose to hold graduation at Elmbrook Church.
Beginning in 2001, the school district received complaints from special interest groups including the Freedom from Religion Foundation, the American Civil Liberties Union, the Anti-Defamation League, Americans United for Separation of Church and State, and numerous individuals. In 2009, nine anonymous members of the community, namely John Doe, filed suit against Elmbrook School District, claiming that holding graduation ceremonies in a church violated the Establishment Clause of the First Amendment as applied to the states via the Fourteenth Amendment. The school district claimed that it was a temporary location chosen by the students on an annual basis due to the comfort and capacity of the venue. The event itself was absent any religious activity; it was merely held in a church.
The Court Below
The United States District Court for the Eastern District of Wisconsin was the first to hear the case. The court decided in favor of Elmbrook School District and granted summary judgment, holding that the school district was neither coercing nor endorsing religion, nor was there excessive entanglement of church and state relations, nor were taxes being used to support religion. See opinion below:
John Doe appealed to the Seventh Circuit Court of Appeals. The court overturned the decision of the district court, holding that the “religious environment” might portray “the state as endorsing a set of religious beliefs.” See opinion below:
Doe, Doe v. Elmbrook School District, 687 F.3d. 840 7th Cir., 2012
Elmbrook appealed to the Supreme Court, but the Court denied certiorari. Justice Thomas joined Justice Scalia in dissenting from the denial. See the dissent below:
Elmbrook School District v. Doe, 134 S.Ct. 2283 2014
Question before the Court
1. Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience.
2. Whether the government “coerces” religious activity in violation of Lee v. Weisman, 505 U.S. 577 1992, and Santa Fe Independent School District v. Doe, 530 U.S. 290 2000, where there is no pressure to engage in a religious practice or activity, but merely where unrelated religious symbols are present.
3. Whether the government “endorses” religion when it engages in a religion-neutral action in a location where unrelated religious symbols are present.
CCJ filed an amicus curiae in favor of Elmbrook School District
Summary:
The appellate court’s interpretation of the Establishment Clause has no basis in the original understanding of the First Amendment. In 1787 most state constitutions addressed religion, yet all in different manners, granting different degrees of religious freedom. Jonathan Elliot wrote in 1788 that during the state ratifying conventions, Anti-Federalists feared that the Constitution would give the federal government the power to not only interfere with the free exercise of religion, but also the power to abolish existing state establishments to implement a new national religion. Madison included the Establishment Clause in the First Amendment to calm these fears and guarantee the protection of religious practice within the states. The clause was meant to keep the federal government from encroaching on an area already managed by the states.
Contrary to the ruling of the Seventh Circuit, the Founders never intended to outlaw the “subtle pressure” one might feel when observing others who are practicing religion. Given the meaning of “establishment” in 1787, the Establishment Clause was referring to legal coercion impressed upon the states by the federal government. Such coercion looked like the government dictating church doctrine and selecting church officials. As stated by Justice Thomas in his concurring opinion of Elk Grove Unified School District v. Newdow 2004, establishment requires that there be legal coercion of either the church or the individual; without such coercion there is no establishment. Because Elmbrook School District is coercing neither church nor individual, there is no establishment of religion.
Without considering the original meaning of “Establishment,” the courts are left to guess about its purpose and meaning. As demonstrated by the court below, often these guesses are mistaken. The clause is often misinterpreted to prohibit religious activities in public buildings and secular activities on religious property, an interpretation that ignores two centuries of practice. Since the infancy of our nation, Congress has employed chaplains that open sessions with prayer, and the president of the United States has taken the oath of office by placing his hand on the Bible. Both examples are governmental actions that might cause “subtle pressure” to be felt by individuals hostile to religion. The lower court’s interpretation would imply that it is the court’s purpose to outlaw all public expressions of faith and religious symbols, including the long-practiced examples, to protect individuals from the “subtle pressure” they may feel.
The Supreme Court also needs to grant certiorari because current Establishment Clause jurisprudence fails to guide the lower courts. Judges within the appellate courts have acknowledged the severity of the problem. In the Seventh Circuit’s decision, Judge Posner complained: “The case law that the Supreme Court has heaped on the defenseless text of the Establishment Clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective, and provide no guidance.” Justice Thomas recognized in his dissent for denial of certiorari of Utah Highway Patrol Association v. American Atheist 2011 that the two tests used to decide Establishment Clause cases, the Lemon and endorsement tests, “are so utterly indeterminate that they permit different courts to reach inconsistent results.” If the Supreme Court is supposed to set precedent to be followed by the lower courts, it must grant certiorari to reestablish a coherent and definite interpretation of the Establishment Clause—one based not on ignorance, but on history.
Final Outcome
The Supreme Court denied certiorari and the decision of the appellate court was upheld. The decision of the lower court was contrary to CCJ’s argument, which read that having graduation at a church conveyed a message of religious endorsement that carried with it an aspect of coercion, thus violating the Establishment Clause.
