Last month, in one of the largest curtailments of the Establishment Clause in recent history, the Seventh Circuit Court of Appeals held that public schools in Wisconsin could hold high school graduation ceremonies in churches without offending the First Amendment.

For nearly ten years, Brookfield Central and Brookfield East high schools held their high school graduation ceremonies in the sanctuary of Elmbrook Church, a non-denominational evangelical Christian Church.  As one might expect, the church grounds are filled with religious symbols.  At the front of the sanctuary, in the backdrop of the ceremony, hangs a 20-foot cross, which the church refused to cover up.  Additionally, during the ceremony, members of the congregation manned booths in the lobby containing religious brochures, many of which were directed at young adults.  The ceremony itself, however, contained no religious elements.

Parents in the school district raised concerns over the venue almost immediately after the practice began in 2000.  In 2009, a group of non-Christian parents filed suit in federal district court in Wisconsin, seeking damages and an injunction against using the church for school events.  The district court dismissed the case, entitled Doe v. Elmbrook School District.  On appeal, a divided court agreed that a ceremony that contained religious symbols but was devoid of any coerced religious participation did not constitute excessive entanglement with religion in violation of the First Amendment.

The Seventh Circuit’s holding is utterly inconsistent with the Supreme Court’s 1992 ruling in Lee v. Weisman, a seminal case about religion in public schools.  Lee concerned a non-sectarian invocation and benediction delivered by a rabbi during a public middle school’s graduation ceremony.  In a 5-4 decision, the court ruled that the prayer constituted “a state-sponsored and state-directed religious exercise in a public school.”  Writing for the majority, Justice Kennedy recognized that students faced pressure to stand as a group and remain silent during the prayer, and that, while attendance at one’s graduation ceremony is voluntary, “absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.”  Hosting graduation ceremonies in religious institutions creates the same harms that Supreme Court recognized in Lee.  The students who brought the case felt “uncomfortable, upset, offended, unwelcome and/or angry” due to the ceremony’s setting.  Students were faced with the choice between entering an inherently religious setting, where they would undoubtedly encounter prominent religious symbols with which they were uncomfortable, or not attending their commencement.  As the court noted in Lee, “It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.”

Unfortunately, the Seventh Circuit is not the only court to erode the Court’s holding in Lee over the last twenty years.  Five months after the Supreme Court handed down its decision, the Fifth Circuit Court of Appeals upheld a Texas school district’s policy of allowing public high school students, selected by the student body, to deliver non-sectarian, non-proselytizing invocations at their graduation ceremonies.

Should the students of Elmbrook School District decide to petition the Supreme Court to hear the case, there is a genuine possibility that the Court will decide to grant certiorari.  While many school districts around the county hold graduation ceremonies in religious institutions, most districts agree to change venues upon threat of a lawsuit.  For example, after the ACLU filed a lawsuit to enjoin a New Jersey high school from continuing to hold graduation ceremonies in a Baptist Church, the school district quickly agreed to hold the ceremony elsewhere in subsequent years.  Consequently, few lawsuits make it to trial, preventing the development of a circuit split.  The only other court to take up the issue, a federal district court in Connecticut, granted a preliminary injunction last year prohibiting a Connecticut high school from conducting graduation ceremonies at a Christian church, finding that there was “a substantial likelihood” that the ceremonies would violate the Establishment Clause, but has yet to rule on whether a permanent injunction should be issued.  Even without a circuit split, there may be four justices on the Supreme Court who are willing to grant certiorari to reiterate the importance of Lee and put the issue to rest.

Given the current makeup of the Court, Elmbrook provides the opportunity for a rare victory for civil libertarians, should it make its way to the Supreme Court.  Only three of the current justices—Justices Kennedy, Scalia, and Thomas—participated in the Lee decision.  Justice Kennedy wrote the majority opinion, while Justice Scalia wrote a scathing dissent, joined by Justice Thomas.  Chief Justice Roberts and Justice Alito would be almost certain to join with Justices Scalia and Thomas in upholding the constitutionality of hosting graduation ceremonies in religious institutions.  As Deputy Solicitor General, John Roberts filed an amicus brief in Lee, in which he wrote that the graduation ceremony was not a violation of the Establishment Clause.  As a judge on the Third Circuit, Justice Alito dissented in a case that declared unconstitutional a policy that allowed the high school’s senior class to vote on whether to have a student-led prayer at their graduation.  On the other side, Justices Breyer and Ginsburg, who voted to strike down a student-led invocation during pregame ceremonies at high school football games, would likely be joined in striking down Elmbrook School District’s practice by Justices Kagan and Sotomayor, who reiterated the importance of the Establishment Clause in a dissenting opinion in Arizona Christian School Tuition Organization v. Winn.  Since Justice Kennedy wrote the majority opinion in Lee, one would expect him to reach the same outcome in Elmbrook, resulting in a 5-4 decision to reverse the Seventh Circuit.  As usual, as Kennedy goes, goes the Court.

UPDATE (11/18/2011)

The Seventh Circuit Court of Appeals yesterday vacated the opinion of the three-judge panel, and will hear the case en banc.  A date has not yet been set for oral argument.