Post written with Daniel Bennett

Almost as if to coincide with graduation season, the U.S. Supreme Court declined to review a lower court’s decision involving a school district renting church facilities for a school’s commencement activities.

That’s normal. The Court picks only a handful of cases each year; most of the time the court refuses to grant certiorari (“cert”) to cases. And when it denies cert, it almost does so without comment. What’s not normal is what Justice Antonin Scalia did yesterday. He penned a rare rebuke of the Court’s decision, saying that the Court should have remanded the case back down to the appeals court for further review.

Elmbrook Church, Wisconsin’s largest, was the site of multiple Elmbrook School District graduation ceremonies. An appeals court ruled that holding the ceremonies there was unconstitutional, as it violated the separation of church and state principle. On Monday, the U.S. Supreme Court declined to hear the case, effectively affirming the lower court’s decision. For use with RNS-SCHOOLS-GRADUATION, transmitted June 16, 2014. Creative Commons image by Sergeantjoe

Elmbrook Church, Wisconsin’s largest, was the site of multiple Elmbrook School District graduation ceremonies. An appeals court ruled that holding the ceremonies there was unconstitutional, as it violated the separation of church and state principle. On Monday, the U.S. Supreme Court declined to hear the case, effectively affirming the lower court’s decision. Creative Commons image by Sergeantjoe

Scalia said that Elmbrook School District v. Doe had been decided using the “endorsement test” and not the “coersion test” used in the Court’s recent ruling in Town of Greece v. Galloway.

In 2000, Wisconsin’s Elmbrook School District permitted a school to hold its graduation in a nearby church auditorium, due to poor facilities for such an event in the school. No church employees or members participated in the ceremony. However, some students and parents protested the site itself, alleging that the presence of religious symbols and artifacts was troubling and overshadowed what was supposed to be a celebratory occasion. The lower court had decided that using a church auditorium amounted to an endorsement of the church’s religion and coercion of the students, the appeals court decided.

Scalia was characteristically witty or brash (depending on your predilections) in his dissent.  Students and families being offended was irrelevant, said Scalia. He said that he is frequently offended by certain types of music:

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.

But in the Town of Greece decision, said Scalia, the Court ruled that being offended does not mean that one is being coerced. “It is perhaps the job of school officials to prevent hurt dissenting feelings at school events,” Scalia wrote, “But that is decidedly not the job of the Constitution.”

This is not the Court’s first foray into the intersection of religion and high school graduations, of course. The Court previously ruling that prayers offered by clergy at these events violate the First Amendment (Lee v. Weisman). But unlike in that case, the Court’s denial here does not establish nationwide guidelines for future cases – another court of appeals could very well decide that a school is within its boundaries to hold its graduation in churches. Most likely, the Court is waiting for more conflict to emerge in the lower courts before getting involved, despite Justice Scalia’s desire to do so now.

The Court’s denial is yet another instance of the Court tackling questions about the role of religion and the public square this term, all of which are leading up to the highly-anticipated Hobby Lobby case to be handed down sometime this month.

Daniel Bennett, PhD, researches the conservative legal movement. He will be joining the faculty at Eastern Kentucky University this fall.  

Categories: Beliefs, Politics

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Tobin Grant

Tobin Grant

@TobinGrant blogs for Religion News Service at Corner of Church and State, a data-driven conversation on religion and politics. He is a political science professor at Southern Illinois University and associate editor of the Journal for the Scientific Study of Religion.

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