As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.” 

The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner.  I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:

• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s various tests all attempt to assure that the state remains religiously neutral, in order to promote tolerance and civil peace. Neutrality is a very contested concept, though, especially the idea that the state must be neutral between religion and non-religion. And, as to that, it’s not clear that forbidding high schools from renting space from churches but not from other private landlords is neutral as between religion and non-religion. A ban on churches but not movie theaters and sports arenas may suggest a hostility to religion and lead to greater civil strife.

• Proselytizing Effect: the decision revives a theme that appeared in the first religious symbols case, Stone v. Graham, the Court’s 1980 decision forbidding the placement of the Ten Commandments in public school classrooms. The Court worried that the Commandments might have a proselytizing effect on impressionable students; even though the students were not required to do anything in response, the mere presence of the Commandments might encourage veneration. Here, the Seventh Circuit emphasized the presence of a large Latin cross and evangelical materials in the pews and in the sanctuary’s lobby. Unlike in Stone, of course, the state was not directly responsible for these things; but the state had chosen to hold the ceremonies in a space where these “proselytizing elements” were present. It would be interesting to see what the Court would do with this line of reasoning. (Judge Posner dismissed the idea that these decorations amounted to proselytizing — at least, not effective proselytizing. They were, he believed, insufficiently powerful to convert anyone).

• Posnerian Irony: Marc has already quoted several of Judge Posner’s quips in this case, but actually I was struck most by one Marc doesn’t mention. At the end of his dissent, with some bemused exasperation, it seems to me, Posner notes Hume’s famous observation that established churches tend to be lazy and spiritually weak —  and that is why, Posner suggests, society should encourage them! It’s an ironic reversal of Madison’s famous condemnation of established churches in his Memorial and Remonstrance. Here’s Posner: “Religions thrive on persecution, real or imagined. Where would Christianity be without its martyrs? The real winner in this case is likely to be — Elmbrook Church.”

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