Bench Memos

The Seventh Circuit Makes a Mess of the Establishment Clause

Take the time to read the opinions — especially Judge Richard Posner’s dissent — in Doe v. Elmbrook School District. The U.S. Court of Appeals for the Seventh Circuit, en banc, ruled that it violated the First Amendment’s no-religious-establishments rule to hold high-school graduation ceremonies in a particular church building because of that particular building’s “proselytizing environment.” There was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise. The court wrote: 

Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.  That is, the activity conveyed a message of endorsement.

Now, I believe (as does, say, Pope Benedict XVI) that the distinction between political and religious authority — that is, the “separation of church and state,” properly understood — is an essential feature of, and safeguard for, religious freedom. See, for example this short essay or this article. I also think that, for a variety of reasons, it makes sense for public-school officials to be sensitive to the fact that many student bodies are diverse in terms of religious observance and affiliation, and so even a more comfortable and convenient church setting might not, all things considered, be appropriate for a public-school graduation ceremony. But, this decision provides, for me, additional evidence that the business of using the First Amendment as a judicial warrant to scrutinize closely the social meaning and endorsement-conveying-potential of interior decorations, holiday displays, war memorials, etc., is an exercise in futility, one that does little to vindicate or protect religious liberty and that instead often conveys a message of aversion to religion-in-public-life that is inconsistent with American traditions, history, and life.


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