The Seventh Circuit has come down with a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and other material which run afoul of the standards that the Supreme Court has encrusted on the Establishment Clause. It was undisputed that the choice to hold the graduation in the church was made for the sake of convenience, price, and accommodation of the large number of students, and not for any religious reason. It was also undisputed that no reference was made to religion during the graduation ceremony.
Do read Judge Ripple’s sensible, moderate, and absolutely convincing dissent. But by far the most pungent lines appear in Judge Posner’s dissent — and boy are there a lot of them. Taking the prize:
The best that a judge of determined neutrality faced with a case such as the present one can do is to be guided by Gibbon’s aphorism (from chapter 2 of the Decline and Fall) that “the various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.” For “the Roman world” substitute “the United States” and for “the magistrate” substitute “the judge” and one has the right starting point for the analysis of this case. The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as “equally useful” from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government’s taking sides among competing faiths would engender.
Other memorable lines from Judge Posner’s dissent:
- “The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widelyacknowledged, even by some Supreme Court Justices, tobe formless, unanchored, subjective and provide noguidance.”
- “A judge’s political orientation is a particularly important clue to his or her likely vote in a case arising under the religion clauses of the First Amendment; conservative judges are more favorable to religion in their decisions than liberal ones, though only on average rather than in every case. Michael Heise & Gregory C. Sisk, “Religion, Schools, and Judicial Decision Making: An Empirical Perspective,” 79 U. Chi. L. Rev. 187 (2012); Gregory C. Sisk & Michael Heise, “Ideology ‘All the Way Down’? An Empirical Study of Establishment Clause Decisions in the Federal Courts,” 110 Mich. L. Rev. 1201 (2012).
- “The difference between a public school’s using a church two or three hours a year and its using it a thousand-odd hours a year is one of degree rather than of kind, but differences of degree are inescapable grounds of legal distinctions.”
- “But could it be that the cross and the banners and other religious paraphernalia visible to occupants of the auditorium of the Elmbrook Church would predispose attendants at the graduation to join the church, thus giving the evangelical sect that owns it a competitive advantage? And might not the conferral of such an advantage be thought a form of establishment? But the plaintiffs find the church offensive, and are thus in no danger of being converted. There is no suggestion that holding a high-school graduation at the Elmbrook Church has ever triggered a conversion. How often are visitors to churches converted by the visit? Conversion generally precedes attendance. How many of the millions of non-Catholic visitors to St. Peter’s — Protestants, Jews, Muslims, Hindus, Buddhists, atheists, and so forth — have converted to Christianity as a result of their visit to that awesome site? I mean no disrespect to the Elmbrook Church in pointing out that no counterpart to the treasures of St. Peter’s that include Bernini’s baldacchino and Michelangelo’s Pietà, the tombs of 91 Popes, a fragment of the True Cross, and the spear that pierced Christ’s side at the Crucifixion (of course the authenticity of the last two items has been questioned), is to be found there.”
- “The plaintiffs argue that by holding its graduation ceremony in a church festooned with religious symbols, Broomfield High is “coercing students and parents to attend a house of worship.” “Coercing?” That is hyperbole. Attendance at graduation isn’t compulsory, graduation is not a “coerced activity,” and a student who attends graduation in Elmbrook Church no more attends a religious ceremony than the cleaning crew when it sweeps the church’s aisles. When the Supreme Court said in Lee v. Weisman, supra, 505 U.S. at 586, 595, in florid hyperbole that “attendance and participation in the [graduation ceremony] are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma,” as “it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term ‘voluntary,’ for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years,” it was whistling in the dark.” [Take that, Justice Kennedy]
- “The idea that mere exposure to religious imagery, with no accompanying proselytizing, is a form of religious establishment has no factual support, as well as being implausible. Religion is for good or ill a large component of human culture, including American culture. Religious words and symbols are ubiquitous. I have heard oral argument in this court on more than a thousand occasions, and every session has begun with a member of the court’s staff intoning “God save the United States and this honorable court.” Should this outcry, or the religious paintings in the National Gallery in Washington (another federal facility), seen over time by millions, be considered an establishment of religion? Does it send trial lawyers running to the baptismal font? The court crier’s phrase, if thought anything other than a fossil trace of a more unselfconsciously Christian era in the nation’s history, can’t be interpreted as anything other than a governmental expression of belief in one God who influences the fortunes of our nation and may even if properly appealed to protect the United States Court of Appeals for the Seventh Circuit. It is explicitly religious, but it is also innocuous.”
- “The likely effects of today’s decision will be, first, to confirm the view of many religious Americans that the courts are hostile to religion; second, to infuriate students and their families by depriving them of the best site for their high school graduation (the school district in this case has built a new building that will house future graduation ceremonies, but any other public schools in the Seventh Circuit that hold their graduation ceremonies in churches will have to scramble for alternative sites); and third, to initiate what federal law does not need: a jurisprudence of permissible versus impermissible rentals of church space to public schools and other public entities.”
There’s more, if you can believe it. This set of opinions is quite something. The dissents (Easterbrook’s and Posner’s) are explicitly calling the Supreme Court out.