Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 24, 2012

Seventh Circuit: Holding a High School Graduation in a (Richly Iconographically Religious) Church Violates the Establishment Clause

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) [congratulations Greg!]
  • "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.


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The majority and dissents raise several interesting issues, and I'd like to highlight this small nugget from the majority:

"The street names given to the drives approaching the Church are “Agape” and “Barnabas.”8 The attached footnote 8 explains more about the religious meanings of those names.

So the majority adds to the "coercive" context that the attendees must see these religiously-named street names. While the opinion does not say so, I suspect that these are actually public streets, not privately-owned drives, as it is rare for anyone to name (and provide signage for) truly private drives. Most local engineers' offices do allow builders to provide names for streets, so the church may have supplied them, but once adopted, they are public names.

Of course, America is full of religious place names, whether streets or the many "Saint" cities, as well as Corpus Christi and Los Angeles and more. Does that mean that those names must all be purged, or, at a minimum, that no public school may be located on Corpus Christi Drive, so the kids are not forced to see that endorsement every day?

I understand that the court says that it relies on a totality of circumstances, but even including this factor in the totality seems problematic to me.

Posted by: joe reader | Jul 24, 2012 11:09:55 AM

I think it is only logical to assume that when the treaty that ended The Revolutionary War, The Treaty of Paris, was proclaimed to be "In the name of The Most Holy and undivided Trinity, no doubt our Founding Fathers believed that although we need not all be, for example, Anglican, the purpose of protecting Religious Liberty was grounded in our Founding Fathers belief that Religion would serve to complement and thus enhance the value of The State.

In order to respect the spirit of The Law that protects our Religious Liberty, one must begin by recognizing that it was never the intention of our Founding Fathers to build a wall of separation between The State and Religious morals and values that complement the foundational morals and values of The United States of America.

Posted by: N.D. | Jul 24, 2012 11:31:03 AM

That would be illogical.

Posted by: N.D. | Jul 24, 2012 11:36:36 AM

"How often are visitors to churches converted by the visit?"

Judge Posner doesn't read many conversion stories, does he? But he is in fine form in that opinion.

Posted by: Titus | Jul 24, 2012 2:36:47 PM

What should a student do whose religion forbids him or her from entering a church?

Posted by: Ellen Wertheimer | Jul 24, 2012 6:24:32 PM

What should a student do that believes his or her graduation venue ought to be boycotted because it engages in immoral labor practices and that to hold a graduation at the site would gravely violate the dignity of the maltreated workers?

Is such an objection (let's call it 'secular') different in kind in this situation than the 'religious' objection that Ellen W. posits?

Posted by: Catholic Law Student | Jul 24, 2012 11:22:32 PM

The court here appears to be validating the plaintiffs' assertion of the "ick factor" as the basis of a lawsuit.

Posted by: Amelia | Jul 25, 2012 6:01:05 AM

If one's religion--for example, Orthodox Judaism--forbids one from entering a church, it is hardly a manifestation of an "ick" factor. It is a serious religious prohibition. What if the graduation were being held in a temple or a mosque, and the student belonged to a Christian faith that forbade entry into either one?

Posted by: Ellen Wertheimer | Jul 25, 2012 6:55:58 AM

Much of the standard sex and culture curriculum mandated in public schools under the guise of health and safety and anti-bullying training, is in direct conflict with the doctrines of orthodox Christianity, as well as other religions. Yet the trend is for courts to tell parents to just "get over it", in keeping with the admonition of pundits and professors that law and policy must not be influenced by the "ick factor".

Posted by: Amelia | Jul 25, 2012 8:49:36 AM

I love that Easterbrook used that footnote symbol instead of a numeral.

Posted by: Matt Bowman | Jul 25, 2012 10:29:22 AM

Ellen: is your question theoretical or are there religions that forbid their members from going into a place of worship of another religion?

Posted by: Susan Stabile | Jul 25, 2012 11:24:05 AM

Susan Stabile:

A Jew who believes himself or herself to be forbidden to enter a Christian church could certainly make the case that this is a tenet of the Jewish religion.



Posted by: David Nickol | Jul 25, 2012 11:32:30 AM

Thanks, David.

Anyone: Why isn't that dispositive of the issue at least in schools that have Jewish students? I'm not at all persuaded by the "ick factor." But it seems hard to defend holding a graduation ceremony at a venue at which some graduating students and their families are prohibited by their religion from attending. (Obviously same argument if a school has students of another faith whose faith prohibits them from entering into a church.)

Posted by: Susan Stabile | Jul 25, 2012 12:14:35 PM

Susan, what is the constitutional hook? The free exercise clause? The establishment clause? Neither of these seem obviously dispositive to me as a constitutional matter (the issue of whether it is wise policy to hold a graduation in a church is different -- I agree that it is hard to defend such a policy when there are students whose faiths prohibit them from entering a church or any other religious institution).

This problem has sometimes been solved as a political matter in the context of voting at religious institutions (which at least two appellate courts have upheld against constitutional challenge, and which this court professed to express no opinion about) by the mechanism of absentee ballots. See CJ Easterbrook's dissent at pp.68-69, as well as the dagger footnote that Matt Bowman references. That aside, if the practice of voting within religious institutions is constitutional, why is holding a public school graduation in a religious institution unconstitutional? Isn't burdening the right to vote more consequential than burdening the right to attend one's graduation? I guess one might take the position that voting within religious institutions is unconstitutional too.

Posted by: Marc DeGirolami | Jul 25, 2012 12:48:28 PM

Thanks for your question, Susan, and thanks for your response, David. As you can tell, my question was not theoretical. It was probably put into my mind by my recent rereading of Chaim Potok's incredible book, My Name is Asher Lev, which turns (in part) on a Jewish response to seeing images of the Crucifixion. I also have friends who have in the past told me that their religion forbids them from entering a church.

I am also not sure that I would be happy with a solution that said that it was acceptable to hold the graduation in a church provided there were no Jewish students in the class. For one thing, people might not be comfortable with identifying themselves as facing a religious prohibition against entering a church, especially if such a revelation would cause an increase in expense and hassle for the school. It seems safer just to avoid the problem by not holding graduations in churches (or mosques or temples, etc.)

Posted by: Ellen Wertheimer | Jul 25, 2012 12:51:42 PM

In a constitutional environment in which we assume it does not violate the establishment clause to hold a graduation in a Church (or other religious structure), would Smith apply to the religious objectors?

So, is holding a graduation in a Church (or other space that might cause a religious group to object) a "general rule of neutral applicability"?

Posted by: Catholic Law Student | Jul 25, 2012 2:05:37 PM

Catholic Law Student, if you are asking whether Smith would invalidate a practice such as the school district engaged in here, my guess would be no. The school district is not targeting any religion for especially bad treatment. It is not applying one rule for one set of students and a different rule for a different set of students.

It has made the decision to hold the graduation at the church for non-religious reasons. Indeed, it might have made the decision to hold the graduation at the church in spite of the fact that the church is a religious organization -- because the plusses of convenience, accommodation, traffic flow, cost, etc. outweighed the fact that this is a religious institution (otherwise a negative factor).

On the other hand, might a student whose religious conscientious objections prevented him or her from entering a church have a claim under a state constitutional provision which still requires strict scrutiny (like Wisconsin) or for those states with their own RFRAs (the federal RFRA would not apply here)? That seems much more plausible to me, but it needs to be worked out (using something like the substantial burden, compelling interest, narrowly tailored framework). Note that none of the plaintiffs in this law suit were making any of these claims. They were claiming that the school district's practice is an Establishment Clause violation under the endorsement test and other standards that the Court has announced. These students and their parents were not bringing claims of religious conscientious objection.

Posted by: Marc DeGirolami | Jul 25, 2012 2:29:36 PM

To me as a non-lawyer and somewhat of a heathen, this seems to be a case where a court leaned over backwards to protect religious liberty. Neither the hosting church nor the high school using the space themselves had any religious motive. However, some students and parents had objections on religious (or anti-religious) grounds. So religious liberty won out. Didn't it? The only people who had a religious concern were those who brought the suit. And they won. The decision may be a foolish one, but since nobody but the parents and students who raised the objection appealed to religious motives in any way, the side with a religious objection won.

Posted by: David Nickol | Jul 25, 2012 2:30:50 PM

David, I'm afraid I don't understand the comment. It was a victory for religious liberty if one believes that what the court did was to vindicate a constitutional commitment to religious liberty as that commitment is expressed in the Establishment Clause. If one does not believe that what the court did vindicated that commitment, then it is not a victory for religious liberty. The court does not have the jurisdiction to protect all manifestations and conceptions of religious liberty that lie outside of the Constitution. The extent to which one thinks that the court protected religious liberty is exactly coterminous with the extent to which one thinks the Establishment Clause prohibits the conduct of the district.

Posted by: Marc DeGirolami | Jul 25, 2012 6:49:18 PM


I don't pretend to be able to analyze this case very deeply, but it seems to me that since neither the high school nor the church had any intention of promoting religion, but some parents and students felt that nevertheless they were being coerced into a religious environment, those who were concerned with religious liberty won out. Whether the decision was nonsensical or not I don't pretend to know.

Posted by: David Nickol | Jul 26, 2012 10:20:41 AM

David, once again, it does not make any sense to talk about what "religious liberty" demands in an abstracted vacuum. Different societies have had different notions of the rights and responsibilities that attend their respective conceptions of religious liberty. Some of those conceptions are deeply at odds with our own constitutional traditions, so it would be wrong to say that a judicial decision promoting those conceptions also promoted "religious liberty" as it is conceptualized under our Constitution and our traditions.

That someone, somewhere, was advancing a conception of "religious liberty" has no necessary connection at all with whether a judicial decision interpreting the Establishment Clause to forbid certain governmental conduct is consistent with *our* constitutional conception of religious liberty. Your comment assumes that the very fact that somebody may have had a religious reason for bringing suit, and that that reason was accepted by the court, means that "religious liberty won out." I think that is wrong. We can't talk about religious liberty under the Constitution without knowing what our particular conception of religious liberty demands. In this case, I am dubious that "religious liberty won out" under our constitutional conception, because I do not believe that the Establishment Clause forbids what the district did.

Posted by: Marc DeGirolami | Jul 26, 2012 11:17:46 AM

Prof. Stabile and all, what would your limit be to a suggested principle that it "seems hard to defend holding a graduation ceremony at a venue at which some graduating students and their families are prohibited by their religion from attending."?

Would that preclude Saturday graduations if anyone's Sabbath commitments made attendance impossible or incredibly difficult?

What if someone's objection to the location did not seem as "reasonable," to some of us, as an objection to entering a house of worship not our own? Perhaps someone so opposed to liquor that she would not enter a building that even holds a liquor license and serves it, such as some sports arenas or other gyms or auditoriums? A locale that features pinups of athletes in "immodest" outfits?

I agree at first blush with your rule as a matter of policy, but as others have said, it seems hard to root that doctrinally in either Establishment Clause or in the objectors' Free Exercise rights, and the workable limits would be a problem with policy as well as legal doctrine.

Posted by: joe reader | Jul 26, 2012 2:05:13 PM


Thank you for taking time to respond at length. I think the lesson here is that on a site about law maintained by Catholic law professors, sometimes those of us with degrees only from the Google School of Law (and Theology) need not necessarily post every thought that occurs to us, although it often winds up teaching us a bit of law and sometimes even a bit of humility.

Posted by: David Nickol | Jul 26, 2012 4:02:57 PM

David, thanks -- and not at all. Your comments often help and challenge me to think things through, for which I'm always grateful.

Posted by: Marc DeGirolami | Jul 26, 2012 5:12:34 PM