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Elmbrook and Religion as ‘Hazardous Waste’



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The Supreme Court has been pondering for a long time what to do with the pending petition to review Elmbrook School District v. DoeIn Elmbrook, a Milwaukee-area high school decided to hold its graduation ceremony at a large nondenominational church because the school’s cramped gymnasium with no air conditioning lacked adequate space for those coming to see the graduation. Although the graduation contained no religious activity at all, activists still sued the school district, claiming that the mere presence of a cross on the church’s stage rendered the facility constitutionally toxic for the public school event.  The Seventh Circuit, sitting en banc, agreed.

The Becket Fund appealed that troubling decision to the Supreme Court, and the justices have been deliberating for a long time on what to do with that case. Many thought the Court would quickly grant, vacate, and remand the Elmbrook case in light of the Supreme Court’s excellent decision last month in Town of Greece v. Galloway, where the Court applied the Establishment Clause in a more balanced, reasonable way than the Seventh Circuit did in Elmbrook.  But the justices continue to wrestle with that case.

If the Court decides not to reverse or vacate the Seventh Circuit decision, it may trigger a host of lawsuits challenging benign interactions between government and religion that contain no proselytizing or active promotion of religion. An amicus brief by 15 state attorneys general spelled out how states frequently place polling places in a variety of commercial and community buildings, including houses of worship, so that people can access a nearby place to cast their ballots. Voters will suffer if state officials must avoid placing polling places in buildings owned by religious groups due to concerns about “endorsement of religion.”

Leaving the Seventh Circuit decision intact would also call into question the common practice of public schools renting vacant religious schools to deal with overcrowding problems. For years, New York City has dealt with the challenge of exploding school populations in certain neighborhoods by renting vacant parochial schools from the Catholic archdiocese or from Jewish yeshivas.  WNYC radio in New York City reported in 2012 that the New York City Department of Education rented 50 former or current religious schools “to alleviate overcrowding in some neighborhoods,” quoting a school official.  The Department of Education saves money by leasing these buildings because it does not have to construct new buildings as the only way to deal with short-term school-population spikes.

Although the NYC public schools do not conduct or sponsor any religious activities in these rented facilities, the buildings themselves retain passive religious carvings and mosaics, for example, that cannot be easily removed or covered in many instances. If the Supreme Court allows the Seventh Circuit’s decision to stand in Elmbrook, then what New York City does could be challenged in court, even though few people are complaining about the practice.  The WNYC article quoted the head of the New York Civil Liberties Union as receiving only two complaints about NYC’s practice of renting parochial schools. She also said the NYCLU has no desire to sue New York City for renting parochial school buildings to conduct public schools. Other public schools around the nation that are renting local religious buildings to deal with student-overflow issues might face lawsuits in light of the Elmbrook decision.

The Seventh Circuit’s decision reflects the extreme view of religion as “hazardous waste” — that religion is like asbestos in the ceiling tiles — a dangerous substance that the Establishment Clause requires government to eradicate. Supreme Court Justice Arthur Goldberg in 1963 cautioned against that view, rightly urging us to distinguish between “real threat and mere shadow” when applying Establishment Clause principles. What the school officials did in Elmbrook allowed the high school graduates to enjoy their memorable milestone event rather than be distracted by the crowded seating in an overheated gym. The Seventh Circuit’s harsh application of the Establishment Clause would not improve their graduation experience. The Supreme Court should vacate or reverse the Elmbrook decision.

— Jordan Lorence is senior counsel with Alliance Defending Freedom.



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