Supreme Court’s Internal Battles Come to Light in Refusal to Hear Religion Case

For nearly a decade, the Elmbrook School District, located just outside of Milwuakee, Wisconsin, held their high school graduation in the auditorium of Elmbrook Church. The church’s auditorium was air-conditioned, handicapped accessible, plenty of parking and seating, as well as jumbo screens on which to view ceremonies. The church bills itself as a nondenominational Christian church.

Beginning in 2001, various entities, including non-Christian parents, complained about having graduation ceremonies at the church, saying that the overt displays of Christian faith, as well as manned information tables about the church and its activities violated the rights of non-Christians and the nonreligious. In 2009, a group of students and their parents filed suit to stop the graduation from occurring at the church.

While the graduation was not stopped, the lawsuit continued. The students claimed they were forced to choose between not attending their graduation or to be in an environment in which they felt uncomfortable. They said that the religious displays, that included crosses and bibles, made them feel unwelcomed and angry. Some of the plaintiffs, a mixture of current and former students, said that their younger children were considering not attending their own future graduation because of the location. The ceremony did not include any religious activities such as prayer.

A federal district judge, and later a three judge panel, ruled in favor of the school district. On appeal to the full Seventh Circuit Court of Appeals, the court reversed the previous decision, declaring that the school had violated the Establishment Clause of the First Amendment. In their decision, they noted that the sheer religiosity of the space, which included the students passing through a lobby that contained pamphlets for middle school and high school ministries, as well as a 20-foot tall Latin cross, created a likelihood that the high school students and their younger siblings would perceive a link between the church and the state (aka the school). The dominant iconography presented a powerful message of a favored religion, creating an unwelcoming environment for nonadherents attending the ceremony.

In addition to the unconstitutional endorsement of a particular religion, the appeals court found that there was also an element of coercion. By forcing the students to attend a graduation ceremony in a pervasively Christian environment, they have created the potential for coercion. Students of differing faiths or the nonreligious could feel subtle pressure to participate or otherwise honor the space, such as meditating on the religious symbols, as their Christian classmates.

The school district appealed to the Supreme Court. After the Court’s recent ruling allowing prayer at legislative meanings, many felt that Elmbrook School District v Doe could solidify the Court’s position on how to address the various tests on government practices violating the Establishment Clause. In a surprise move, however, the Court refused to hear the case and the Seventh District’s ruling stands.

Normally, the Supreme Court’s refusal to hear cases garners little attention. There is some speculation that unlike in the Town of Greece v Galloway, in which the majority ruled that the long established history of legislative prayer did not amount to coercion of the adults attending council meetings, the Elmbrook case involved minors and may have been satisfied with the Seventh Circuit’s analysis regarding coercion. However, in an unusual move, the Court’s two most conservative justices wrote a seven page dissent disagreeing with the decision to not hear the case, giving insight to a deeper divide.

Justices Scalia and Thomas, who reportedly lobbied forcefully for the case to be heard, wrote that the Seventh Circuit’s case was fundamentally flawed, especially considering the Court’s recent ruling in Town of Greece. Written by Justice Scalia, he noted that the lower court’s analysis failed the endorsement test (a test that recent SCOTUS decisions have seemed to ignore, relying more strongly on the harder to prove coercion test). He also writes that it was irrelevant that students and minors felt uncomfortable in the space and disagreed they were forced to attend or otherwise participate in religious activities. Besides, he said, the First Amendment explicitly favors religion.

The justices respectfully dissented from the denial of certiorari.

We will never know how the Court would have ruled, though it is clear that it would have been a fight for reversal of the Seventh Circuit’s decision, at least by the conservative wing. For now, Elmbrook School District now has a newly renovated high school gymnasium for its graduation ceremonies. They also face a hefty bill for the plaintiffs’ attorney’s fees now that they’ve lost the case.


Jim Ven
Jim Ven2 years ago

thanks for the article.

Dominic C.
Dominic C4 years ago

America's SCOTUS is the vision of the world. If SCOTUS is bent on conservatism, how do you expect the many conservative Asian countries to change? The West, especially America, must show that brave footing and not show pound to the conservatives because conservatism begets extremism. Humanism does not beget liberalism; its rationalism.

Kevin Brown
Kevin Brown4 years ago

Aw Poindexter, maybe if you didn't post so much garbage and nonsense you would not be called out so much?

Dan Blossfeld
Dan Blossfeld4 years ago

Carole l.,
Kevin just posts insults to those with whom he disagrees (even some of those with whom he agrees). Since you have chosen to copy him, instead of debating reasonably, why should U waste my time?

Carole L.
Carole L4 years ago

@Dan refer to Kevin's post if you don't have the mental reasoning powers to understand my response to you.

Kevin B
“Jesus Poindexter, do you ever post anything that is not utter bullsh#$?

You are obviously completely ignorant of the concept of public and non-public forums and free speech activities."...

thank you Kevin, my point exactly.

Vasu M.
.4 years ago

In an 1819 letter to Robert Walsh, James Madison, the father of the Constitution, wrote, “...the number, the industry and the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church from the state.”

Vasu M.
.4 years ago

Marion W. wrote: "There is nothing in the Bill of rights that gives you 'freedom FROM religion. It states that government shall make no law regarding the establishment of religion or prohibiting the free exercise of religion. If your 'religion' is atheism, you have the right to not believe in God, but you don't have the right to stop my free expression of my (beliefs) religion."

According to Isaac Kramnick, a professor of government at Cornell University, "It was Thomas Jefferson who established the separation of church and state. Jefferson was deeply suspicious of religion and of clergy wielding political power."

And Marion W. writes: "You have the right to not believe..."

Liberals argue church-state separation means freedom FROM religious tyranny and theocracy. Conservatives argue (the other side of the coin!) that one of the reasons the founding fathers established the principle of separation of church and state was to prevent the government and non-parishioners in general from interfering in religious affairs.

Apart from friendly interfaith discussion on serious theological topics like the holy names, animal rights and vegetarianism, intoxication, gambling, the afterlife and reincarnation, idolatry, the incarnations of God, etc., Christians would never let us tell them how to read their Scriptures, nor even when to hold a church picnic. Neither should they dictate to us about our religious affairs, like establishing a formal laity.

Vasu M.
.4 years ago

Marion W. writes, "The reason behind this is clear if you know your history. In England the State aka Monarchy dictated what to believe and how you should worship. The king was head of the 'state' and also head of the church. Our forefathers wanted to guarantee the freedom to worship as one wished."

As president, James Madison put his separationist philosophy into action. He vetoed two bills he believed would violate church-state separation. The first was an act incorporating the Episcopal Church in the District of Columbia that gave the church the authority to care for the poor. The second was a proposed land grant to a Baptist church in Mississippi.

Had Madison, the father of the Constitution, believed that all the First Amendment was intended to do was bar setting up a state church, he would have approved these bills. Instead, he vetoed both, and in his veto messages to Congress explicitly stated that he was rejecting the bills because they violated the First Amendment.

Later in his life, James Madison came out against state-paid chaplains, writing, “The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles.” He also concluded that his calling for days of prayer and fasting during his presidency had been unconstitutional.

In an 1819 letter to Robert Walsh, Madison wrote, “the number, the industry and the morality of the priesthood, and the devotion of the people have been

Phillip Ferrell
Phillip Ferrell4 years ago

In the town where I live the schools have school auditoriums as part of the building.

Charlie Rush
Charlene Rush4 years ago

One can only guess, which Supreme Court justice, is behind this rejection, not wanting his religious bias to show.