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On religion issues, children are still different

The Supreme Court sent a fairly clear signal on Monday that its new willingness to allow more religion in public life probably does not mean that it will allow children to be exposed to more such symbolism when they don’t have a choice about it.  Over two Justices’ fervent dissent, the Court voted to leave intact a lower court ruling that it is unconstitutional to hold a high school graduation ceremony in a church with prominent religious banners and objects.

The Court issued only a one-line order denying review of a case that it had been holding (Elmbrook School District v. Doe) until it had decided a case about the recital of prayers at local government meetings.  But, in so doing, the Court silently rejected the suggestion of the dissenters that it return the school graduation case to a lower court to take into account the prayers decision (Town of Greece v. Galloway, decided May 5).

Because the Court never explains its refusals to hear a case, there is no way to know what led it to bypass a case, especially when some of the Justices have pressed it energetically to grant review, as almost certainly happened behind the scenes with the Elmbrook case.  The case was listed for the Justices’ discussion ten times after they had decided the Town of Greece case.

The dissenting opinion by Justice Antonin Scalia, joined by Justice Clarence Thomas, gave significant hints about what those discussions could have covered.  Those two argued that the Town of Greece decision had undercut the basis of the lower court ruling against holding graduation rites in a church, that the town board prayers case had made it harder to prove coercion from exposure to religious symbols, and that the case also had demanded a more searching study of the historic background of a practice involving some form of religious expression or display, which the dissenters said the lower court did not do.  None of those arguments, spelled out in a seven-page opinion, moved the rest of the Court.

The practical result is that the lower court decision — by the U.S. Court of Appeals for the Seventh Circuit — becomes binding, at least for the school system involved in the case: a public school district in Brookfield, Wisconsin, a western suburb of Milwaukee.  School officials, finding school facilities too cramped or uncomfortable for graduation exercises, moved them to the sanctuary of a local non-denominational, evangelical church.  That sanctuary was dominated by a very large Christian cross and a number of religious banners, and there were Bibles, hymnals, and religious literature in the pews where students and their families would be seated.

The en banc Seventh Circuit, splitting seven to three, ruled that the exposure of the students and their younger siblings to such symbolism was a form of coercion of religious beliefs.  The school district asked the Supreme Court to take up the case, arguing that there was no attempt to promote religious views on the audience at the ceremonies.

The case was filed at the Court in December 2012, but the Court took no action on it until after it had decided the Town of Greece case.  After the passage of six weeks, the Court acted on Monday with a simple denial of review.

In other orders issued Monday, the Court agreed to add to its decision docket for next Term two new cases.

One case, Elonis v. United States, will give the Court a chance to clarify when it is a federal crime to make threatening statements, including messages or postings on social networking web sites such as Facebook.  The petition asked the Court to rule that punishing such statements violates the First Amendment, if there is no specific proof of an intent to threaten someone else with violence or other harms.   In granting review, the Court told the two sides to be prepared also to argue whether the federal law at issue requires such proof in order to get a conviction.   The Court took no action Monday on a related case raising similar issues, Martinez v. United States.

The other granted case — two petitions consolidated for review — involves whether a federal government agency must get the public’s reaction before it changes a rule that interprets one of its own existing regulations.  The two cases, dealing with whether mortgage loan officers working for financial firms are entitled to overtime pay, are Perez (Labor Secretary) v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association.

The Court asked the U.S. Solicitor General to offer the federal government’s views on two related cases.  The petitions seek clarification by the Court of when military contractors operating in a war zone — such as Iraq or Afghanistan — may be sued by soldiers or their families for injury or deaths blamed on those companies’ hazardous operations on or near battlefields.   The cases are Kellogg Brown & Root Services v.Harris and KBR Inc., v. Metzgar.


Recommended Citation: Lyle Denniston, On religion issues, children are still different, SCOTUSblog (Jun. 16, 2014, 11:45 AM),