Now that the U.S. Supreme Court has upheld prayers before town meetings, it is ready to decide whether to take up another establishment of religion case, this one involving a public school graduation ceremony held at a church. And it is getting fresh advice about what it should do with the latter case.
The justices were holding the appeal involving the Elmbrook School District in Wisconsin pending its decision in Town of Greece v. Galloway, involving a New York state town that had relied predominantly on Christian ministers to deliver prayers before its town council meetings. The court ruled 5-4 to uphold the town’s practice May 5.
To some, it may not seem like the issues in the two cases were all that similar, but the court often holds appeals that might in any way be affected by the outcome of a pending decision.
Besides, in the appeal known as Elmbrook School District v. Doe (Case No. 12-755), at issue are some of the high court’s various tests for evaluating whether a government practice violates the First Amendment’s prohibition on a government establishment of religion.
In Elmbrook, the full U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 7-3 in 2012 that the school district’s use of a Christian church for its high school graduation ceremonies resulted in government endorsement of religion and coercion of students in violation of the establishment clause.
From 2000 to 2009, the school district near Milwaukee had used the auditorium of Elmbrook Church, an evangelical “megachurch” with many Christian symbols on display throughout its facilities, for the graduation ceremonies of its two high schools.
The practice was challenged by a group of non-Christian students and parents, whose suit alleged that during some graduation ceremonies the church operated its information booth or passed out evangelical literature.
The majority on the 7th Circuit court was troubled by the breadth of Christian symbols and activities at the church during the public school event. Dissenters cited various rationales, including that the objectors were being hypersensitive to religious symbols.
Both sides of the Elmbrook case rushed to file new Supreme Court briefs in the case after the court issued its Town of Greece decision this week.
The school district argues in its supplemental brief that the 7th Circuit’s analysis on coercion of non-adherents “is fundamentally at odds with Greece.” The high court should at least vacate the appeals court ruling and order a fresh look, the district says.
But even better, “given the importance of the [coercion] issue and the lingering confusion in the lower courts, the court would be well-served to grant the petition now rather than allow the conflict and confusion to worsen,” the district says.
The brief cites instances from this spring when school districts in Ohio and Georgia moved their graduation ceremonies from church auditoriums because of legal uncertainties.
The school district’s brief was filed May 6, one day after the Town of Greece decision. On May 7, Americans United for Separation of Church and State, a Washington group representing the challengers to the Elmbrook practice, filed a response (which is not yet online).
The Greece decision “reaffirmed that the legislative-prayer context is far different from that of public school graduations,” the Americans United brief says. “The [Supreme] Court concluded that there was no religious coercion in Greece because the audience was composed of adults who could easily avoid the prayers; here, schoolchildren are the audience, and they have no way to avoid Elmbrook Church’s religion-permeated environment without entirely missing their once-in-a-lifetime graduation ceremonies.”
The group urged the Supreme Court to simply decline review of the 7th Circuit decision.
The justices scheduled the appeal for their private conference on May 15, and a public announcement of what they will do with the case could come as soon as May 19.
A version of this news article first appeared in The School Law Blog.