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Plea for a new church-state ruling

Lawyers for a school district in a Milwaukee suburb have urged the Supreme Court to take the next step toward clarifying when government activity and religion are to be kept separate.  Rather than sending this already-pending case back for lower courts to weigh the Justices’ new ruling on Monday, the new brief argued, the Court needs to give new constitutional guidance promptly.

The filing in Elmbrook School District v. Doe has both a direct and an indirect message.  The direct argument is that the Court has not gone far enough to end confusion and division among lower courts in this field of constitutional law.  The indirect argument is that the Court needs to go further toward casting aside a theory that has been a feature of church-state doctrine for decades, and to replace it fully with a standard more tolerant of religion in public life.

This case is now set for consideration by the Justices at their private Conference on May 15.  It has been held on the docket pending the outcome of the legislative prayer case, Town of Greece v. Galloway.  That ruling was issued on Monday, allowing local governing bodies to open their meetings with prayers by citizens, even if the practice is dominated by expressions of one faith — the Christian religion.

The Elmbrook case is not about prayer.  Rather, it is about a public high school’s decision to stage a graduation ceremony in a church that is adorned with numerous religious symbols, displays, and literature.  The U.S. Court of Appeals for the Seventh Circuit barred such a locale for graduation, relying primarily upon prior Supreme Court rulings that had barred religious prayers at a public school graduation and at a public school sporting event.

The Seventh Circuit applied a mix of two constitutional standards:  the coercion theory and the endorsement theory.  That court said that the two approaches “are two sides of the same coin.”

The Supreme Court itself has applied both approaches in church-state cases, but it primarily applied the coercion theory in the Town of Greece decision this week, finding no compulsion — on an adult audience — when prayers were said as part of the ceremonial opening of a town board’s monthly meeting.

It is not clear whether the adult character of the audience was critical to that decision.  And the Elmbrook case, because it involves an audience that would include teenagers and younger children, could provide the Court with an opportunity to say whether the constitutional equation changes when youth are involved and a government-sponsored meeting has a religious cast to it.

Justice Anthony M. Kennedy, who wrote the lead opinion in the Town of Greece case, has been a critic of the endorsement theory and a supporter of the coercion theory for judging  cases under the First Amendment’s ban on government “establishment” of religion.  He mainly used the coercion approach on the issue of legislative prayer.  The decision overturned a ruling by the U.S. Court of Appeals for the Second Circuit, which had relied upon the endorsement theory.

In the new brief filed Tuesday by the Elmbrook school district, its lawyers argued that the Court, at a minimum, should vacate the Seventh Circuit’s ruling against the use of a church for graduation rites.  But it put stronger emphasis on the argument that the Court should not “allow the division [among lower courts] to fester.”

Local governments, the filing contended, “have a strong financial incentive to capitulate” to demands that they avoid activities that might be challenged as too close to religion.  The Elmbrook district, the lawyers noted, has been told by the attorneys for those who challenged the use of the church that if they ultimately win, they will seek to recover fees totaling $838,486.43 for legal services even before the appeal to the Supreme Court was filed.

After the Seventh Circuit ruling against the graduation site in Elmbrook, the brief said, “school districts have only become more uncertain about the constitutional lines in this area.”  Although many districts have often held graduation ceremonies in churches, some are beginning to abandon the practice “in response to threatened litigation.”

The brief, in discussing constitutional standards in this area, argued that the Court’s decision in Town of Greece gave a “cool reception” to the endorsement theory, and it noted that there is confusion in the lower courts as to how to apply that test.

Recommended Citation: Lyle Denniston, Plea for a new church-state ruling, SCOTUSblog (May. 7, 2014, 12:48 PM),