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.