On June 16, the U.S. Supreme Court denied certiorari in Doe 3 v. Elmbrook School District (7th Cir. 2012), in which the U.S. Court of Appeals for the Seventh Circuit, in a 7-3 en banc decision, found that two Wisconsin high schools had violated the Establishment Clause by holding their graduation ceremonies in a non-denominational evangelical Christian Church.  The denial is notable for Justice Scalia’s opinion dissenting from the High Court’s denial of review and his discussion of the recent decision in Town of Greece v. Galloway.  Justice Thomas joined the dissent.

The Seventh Circuit’s majority decision explains that “high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise secular education.  Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity. . . .  [T]he sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.”  The majority reasoned that “if constitutional doctrine teaches that a school cannot create a pervasively religious environment in the classroom . . . it appears overly formalistic to allow a school to engage in identical practices when it acts through a short-term lessee.”

Three judges dissented from the majority decision.  One of the dissenters, Judge Posner, wrote: “To the reasonable attendee . . . it was obvious that the public high school that educated the graduates does not own the church and did not place in the church the various displays and iconography that disturb the plaintiffs. . . .  [I]t would be totally unreasonable for any student to attribute to the District any endorsement of the message of the iconography; it belongs to – and they know it belongs to – someone else.  It symbolizes the landlord’s view, not the District’s view. . . .”

The Supreme Court, however, chose not to take up the case.  Justice Scalia begins his dissent with this gem:

Some there are – many, perhaps – who are offended by public displays of religion.  Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended.  I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky.  And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

            My own aversion cannot be imposed by law because of the First Amendment.

Justice Scalia writes in his dissent that the Supreme Court should have granted certiorari to either hear argument on the merits of the case or vacate the Seventh Circuit’s judgment and remand it for reconsideration in light of the Town of Greece decision, which upheld under the Establishment Clause religious prayers before monthly town council meetings.  He first argues that Supreme Court should have granted cert because the Seventh Circuit decision found a violation of the Establishment Clause by applying the “endorsement test,” which asks whether governmental action has the purpose or effect of “endorsing” religion, and which Justice Scalia states was abandoned by Town of Greece.  Second, he notes that “Town of Greece made categorically clear that mere ‘[o]ffense . . . does not equate to coercion’ in any manner relevant to the proper Establishment Clause analysis.”  According to Justice Scalia, taking offense to being in a church for a high school graduation is similar to having his “inner peace” disturbed on a municipal bus in that neither would violate the Establishment Clause, without more.  “Last but by no means least, Town of Greece left no doubt that the Establishment Clause must be interpreted by reference to historical practices and understandings.”  (citation omitted; quotation marks omitted).  Justice Scalia concludes his dissent by engaging in what else — a historical inquiry — and notes that “[e]arly public schools were often held in rented rooms, church halls and basements, or other buildings that resembled Protestant churches.”

Justice Scalia’s dissent is available here (see page 10).

To read a about similar challenge to high school graduations being held in a church in Enfield, Connecticut, click here

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.