The Lawletter Vol 37 No 5
The Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I, cl. 1. Among other things, a Government violates the Establishment Clause if its practice could be viewed by a reasonable observer as endorsing religion, either by fostering excessive entanglement with religion, see Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), or by applying coercive pressure to support or participate in religion, see Lee v. Weisman, 505 U.S. 577, 587 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000).
In Doe v. Elmbrook School District, No. 10-2922, 2012 WL 2996743 (7th Cir. July 23, 2012) (en banc), a divided en banc Seventh Circuit held that the Establishment Clause prohibits having high school graduation and related events at a church with an emphatically Christian atmosphere. Due to the hot, cramped, and uncomfortable confines of the high school gymnasium shared for graduation-related events by two area high schools in the Elmbrook, Wisconsin, School District (the "District"), the senior class of 2000 looked for alternative locations in which to hold them. With the backing of the District, they ultimately chose a local evangelical Christian church (the "Church"). "The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and emphatically Christian. Crosses and other religious symbols abound on the Church grounds and the exterior of the Church building, and visitors encounter these symbols as they drive to the parking lot and walk into the building." Id. at *4. A group of students and their parents brought suit against the District, claiming that holding graduation in the Church violated the Establishment Clause.
On cross-motions for summary judgment, the trial court granted the District summary judgment. The plaintiffs appealed, and the District's judgment was affirmed by a panel of the Seventh Circuit. On rehearing en banc, however, in a 4-3 decision, the Seventh Circuit reversed and remanded, holding that the District's practice violated the Establishment Clause.
In relevant part, the majority held first that the District's practice "conveyed a message of endorsement" and that "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." Id. at *10. In addition to the large Latin cross at the front of the sanctuary, the lobby contained numerous child-oriented proselytizing pamphlets, and church staff manned booths during some of the District's activities. Not only was the Church adorned with its own symbols, but it was covered with high school decorations too, such that the District placed its imprimatur on the Church's religious message.
The majority also held that the District's practice constituted religious coercion. By directing students to attend a pervasively Christian, proselytizing environment, the District created a captive audience. "The only way for graduation attendees to avoid the dynamic is to leave the ceremony. That is a choice . . . the Establishment Clause does not force students to make." Id. at *12.