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Full 7th Circuit Revives Church Graduation Suit

CHICAGO (CN) - Two Wisconsin high schools violated religious freedom by holding graduation ceremonies in a church, the full 7th Circuit ruled.

The Elmbrook School District has held graduation ceremonies at Elmbrook Church, a nondenominational Christian parish in Brookfield, since 2000. The school district said it chose the building to provide comfort and space, not to promote Christianity.

The class of 2000 first asked school officials to move the event from the school's "hot, cramped, and uncomfortable" gymnasium, suggesting the church as an alternative. After students raised part of the $2,000 rental fee, Superintendent Matt Gibson obliged. The students repeatedly voted to use the sanctuary, which, unlike the school's old gymnasium, offers amenities such as air conditioning, adequate and comfortable seating, and a large parking lot.

School officials preside over the ceremonies, which proceed on a dais in the main sanctuary.

Several individuals protested, however, over the Christian atmosphere, which the 7th Circuit described as indisputable and emphatic, noting crosses and other religious symbols that decorate church grounds and the exterior building. A giant Latin cross hangs at the front of the church.

A custodian "inadvertently" covered the cross during the 2000 commencement, according to testimony from Gibson, but church officials subsequently refused requests to veil the cross in future events, citing a general church policy against covering its permanent religious displays.

Religious literature, including prayer books, fliers and membership forms, also permeate the pews and entrance hall.

Though school officials moved graduations to a newly constructed field house building in 2009, Americans United for Separation of Church and State had already filed a complaint on behalf of nine pseudonymous individuals.

After a federal judge sided with the school at summary judgment, a divided appellate panel agreed in September 2011 that the use of rented church space was "neither impermissibly coercive nor an endorsement of religion."

Chief Judge Frank Easterbrook and Judge Kenneth Ripple made up the majority in the original decision. Judge Joel Flaum wrote a 13-page dissent.

But the full court vacated the opinion two months later in favor of an en banc rehearing.

The judges split 7-3 on Monday in favor of the plaintiffs.

"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," according to the 34-page lead opinion authored by Flaum. "That is, the activity conveyed a message of endorsement."

High school graduations are ubiquitous in American life - a compulsory school event for all practical purposes - a factor that heabily increases the chances that non-Christian attendees would feel like outsiders to a favored religion, the court said.

"True, the district did not itself adorn the church with proselytizing materials, and a reasonable observer would be aware of this fact," Flaum added. "But that same observer could reasonably conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith ... if the district approved of the church's message."

A church environment could also coerce students to accept Christianity, the judges found.

"The only way for graduation attendees to avoid the dynamic is to leave the ceremony," Flaum wrote. "That is a choice ... the establishment clause does not force students to make."


Judges Kenneth Ripple and Richard Posner, as well as Chief Judge Frank Easterbrook, each objected to this holding in separate dissenting opinions.

Ripple criticized the court for creating a legal standard that favors organizations with more subtle displays.

"It would seem that the probable ... that institutions determined to be 'pervasively religious' will be excluded from any participation in the civil polity," Ripple wrote.

"Only a religious entity that strips itself down to a vanilla version of its real self is to be acceptable in the important moments of American civil life," he added. "That stripped-down version of our diverse and vibrant religious heritage soon will produce the functional equivalent of a judicially created 'civil religion,' as the only 'authorized' religious participant in any aspect of American civil life."

Ripple said students would be unreasonable in attributing a landlord's endorsement of religious iconography to the tenant.

Graduating seniors, most of whom are at least 18 years old, should be capable of exercising such reasonable judgment, the dissent states.

"At most, [the district's] rental of the space at the church recognized the existence of the church, a reality certainly permissible under the religion clauses," Ripple wrote.

The judge also worried about "tremors" sure to arise from the majority's holding.

"Will the schoolteacher be permitted to wear her necklace adorned with the Star of David?" Ripple asked. "Will her Christian colleague be permitted to wear a gold cross as a lapel pin? ... Will the Muslim teacher be allowed to cover her head with a scarf in the classroom? Or will 'the sheer religiosity' of these displays constitute endorsement of religion?"

Easterbrook's dissent focused on the jurisprudence of the religion clauses.

"When the Constitution does not contain legal rules on a particular topic, then the people, through their elected representatives and their appointees, are entitled to decide," Easterbrook wrote. "Those who believe the decision of the Elmbrook School District unwise or offensive - and it may well be both - can ask for relief from legislatures, which historically have protected the rights of religious minorities."

For example, the Religious Land Use and Institutionalized Persons Act explicitly protects minority religious rights, the court said.

The presence of religious icons does not imply district support, he added.

"Suppose instead that the school district had rented a movie theater, full of posters for current and future attractions," Easterbrook wrote. "Would this have endorsed movies or coerced anyone to buy tickets? Of course not. ... Neutrality requires the state to treat religious beliefs and symbols the same as secular beliefs and symbols, not to disfavor religion."

Posner launched a pointed criticism of the majority's opinion.

"The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as 'equally useful' from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government's taking sides among competing faiths would engender," the third dissent states.

It would be hyperbolic to call the iconography "coercive," Posner wrote.

"There is no suggestion that holding a high-school graduation at the Elmbrook Church has ever triggered a conversion," the dissent states.

"The idea that mere exposure to religious imagery, with no accompanying proselytizing, is a form of religious establishment has no factual support, as well as being implausible," Posner added.

Monday's decision likely confirms "the view of many religious Americans that the courts are hostile to religion," the dissent states.

It also could "infuriate students and their families by depriving them of the best site for their high school graduation," as well as create "jurisprudence of permissible versus impermissible rentals of church space to public schools and other public entities," Posner wrote.

Judge David Hamilton disputed each of the dissenters in an opinion concurring with the majority.

Other groups that supported the ACLU and the American Jewish Committee in amicus briefs included the Women's Zionist Organization of America, the Hindu American Foundation and the Sikh American Legal Defense Fund.

School officials were supported by the American Center for Law and Justice and Alliance Defense Fund.

Judge Julie Rovner did not participate in the court's consideration or decision of the case.

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