Reader Aelfric, an attorney, called my attention to a new U.S. Supreme Court decision that, surprisingly (given the court’s composition), upholds the separation of church and state. I’ll simply reproduce, with permission, the email he sent me. Granted, it’s only one case, and I’m always worried about the Court’s commitment to the First Amendment, but it’s good news nonetheless:
I wanted to write you because First Amendment establishment issues seem to be very much on your mind lately (with good reason) and especially with regard to public school graduations. That being the case, I wanted to note a bit of good news that happened this morning but is likely to fly under the radar, so to speak.
The United States Supreme Court denied certiorari in Elmbrook School District v. Doe, meaning the decision by Chicago’s own Seventh Circuit Court of Appeals remains intact. This is a very good thing.
The underlying facts are easy enough: a suburban Milwaukee school district chose not to have its graduation in the gym, as was the custom, but rather to hold the ceremony in a local non-denominational church. For obvious reasons, some people had a problem with this. The local district court held that doing so was not unconstitutional; though I confess I have not read the district court opinion, it apparently relied on the fact that no prayer or other religious activity was coerced. The church was just a structure.
Thankfully, the Seventh Circuit Court of Appeals reversed this decision, noting that if a school can’t create a pervasively religious environment, neither can it lease one for school functions. The decision is available here. The court even noted, somewhat unusually, that secular belief systems can offer the same benefits as religions (after the usual platitudes about religion, of course).
I occasionally post on your website as Aelfric, and if you’ve ever noticed such comments, you may know that, as an attorney I am very pessimistic about our court system, especially in this particular arena. As such, I had mentally noted this case when certiorari was filed, and had a nasty feeling it would be a 5-4 decision overturning the Seventh Circuit. To my surprise and delight, the Supreme Court this morning denied certiorari, meaning the case won’t be heard and the decision below stands.
I highly recommend reading Scalia’s dissent from denial (joined by Thomas, because of course) which can be found in today’s orders (it is the very last section of that document). It’s yet another telling look into Scalia’s mindset, in which he likens offense taken at religious imagery in a church to his own dislike of rock music and Stravinsky (and I kind of like Le Sacre du Printemps!). Anyway, I will take up no more of your time, I just felt the need to convey this minor victory to someone, and you seemed apropos.
Scalia and Thomas, then, didn’t have any problem with holding graduation in a church, but were overruled by their colleagues. Just for grins, here’s that part of Scalia’s dissent. (The court’s decision is just the first line.)
UPDATE: Reader Pliny the in Between has made this cartoon for his site Pictoral Theology: