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    High School Graduations at Church Violated Establishment Clause, En Banc Court Rules

    Joe Forward
    Legal Writer

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    July 24, 2012 – Reviewing the case en banc, a federal appeals court recently ruled that a school district in Wisconsin violated the U.S. Constitution by holding graduation ceremonies at a local Christian church, a practice that non-Christian plaintiffs vehemently opposed.

    Specifically, a majority (7-3) of judges for the U.S. Court of Appeals for the Seventh Circuit held in John Doe v. Elmbrook School District, No. 10-2922 (July 23, 2012)(en banc), that Elmbrook School District in Brookfield violated the Establishment Clause of the U.S. Constitution by holding high school graduations at Elmbrook Church between 2000 and 2009.

    The Establishment Clause (U.S. Const. amend. I, cl. 1) prohibits the government from making laws “respecting an establishment of religion.” Government actors (such as public school districts) violate the Establishment Clause if an action lacks a legitimate secular purpose, has the primary effect of advancing or inhibiting religion, or fosters an excessive entanglement with religion, the so-called Lemon test adopted in Lemon v. Kurtzman, 403 U.S. 602 (1971).

    In 2000, senior class officers at Brookfield Central High School requested that its graduation ceremony be held at the church, which would provide a more comfortable and spacious setting. The students argued that the gymnasium, the traditional venue, was too small and hot in June.

    After the senior class voted in favor of the move, the school’s principal and the district’s superintendent agreed to rent the church space for the graduation. Subsequent graduations were also held at the church, and Brookfield East began holding graduations there in 2002.

    During at least several graduations, members of the church passed out evangelical literature in the church’s lobby, which was decorated with religious posters and banners. In the sanctuary, where religious services were held, a large Latin cross loomed, as did other religious symbols. The church refused, as a matter of church policy, to cover permanent religious fixtures.

    Ultimately, a group of non-Christian students, former students, and their parents, sued to stop the practice of holding graduation ceremonies at the church. They asked for a permanent injunction, declaratory relief, and money damages for the constitutional violations.

    Non-Christian Plaintiffs Prevail

    Although the schools were holding graduations in a newly-built field-house as of 2010, the district refused to ensure that future graduations or events would never be held at the church. The plaintiffs lost in federal district court, which granted summary judgment to the school district. A three-judge appeals court panel, by 2-1 vote, upheld the decision last year.

    Yesterday, however, a majority of the en banc Seventh Circuit Court of Appeals reversed, setting up a likely appeal to the U.S. Supreme Court.

    “We conclude that conducting a public school graduation ceremony in a church – one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries” – runs afoul of the First Amendment’s Establishment Clause,” wrote Judge Joel Flaum for the majority.

    The majority did not condemn all government use of church-owned facilities, noting that Establishment Clause cases are highly fact-specific. In this case, however, “an unacceptable amount of religious endorsement and coercion occurred,” Judge Flaum explained.


    Noting that the U.S. Supreme Court might be asked to hear the case, Judge Kenneth Ripple (joined by Chief Judge Frank Easterbrook and Judge Richard Posner) laid out a lengthy dissent.

    The dissent argued that the majority’s holding “significantly alters existing principles in Establishment Clause analysis with respect to coercion.”

    “In doing so, it sets the circuit’s Establishment Clause jurisprudence in a direction that may result in another form of coercion – the coercion of religious entities to conform to a judicially crafted notion of an acceptable ‘civil religion,’” Judge Flaum wrote. “Those religious entities that resist this pressure will be marginalized in American civil life.”

    Whereas the majority found that non-Christians were coerced to participate in a religious activity endorsed by the school, the dissent found a “total absence” of such evidence.

    “At most, its rental of the space at the church recognized the existence of the church, a reality certainly permissible under the Religion Clauses,” wrote Judge Flaum, noting the Establishment Clause does not protect from “personal emotional and psychological unpleasantness.”

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