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Elmbrook School District v. Doe

United States Supreme Court

June 16, 2014

Elmbrook School District, Petitioner
John Doe, 3, a Minor by Doe 3's Next Best Friend Doe 2, et al


Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.


Petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit denied.


JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting from the denial of certiorari.

Some there are--many, perhaps--who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Erznoznik v. Jacksonville, 422 U.S. 205, 210-211, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Certain of this Court's cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies--this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

In the decision below, the en banc Court of Appeals for the Seventh Circuit relied on those cases to condemn a suburban Milwaukee school district's decision to hold high-school graduations in a church. We recently confronted and curtailed this errant line of precedent in Town of Greece v. Galloway, [134 S.Ct. 2284] 572 U.S. ___, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), which upheld under the Establishment Clause the saying of prayers before monthly town-council meetings. Because that case made clear a number of points with which the Seventh Circuit's decision is fundamentally inconsistent, the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR).


First, Town of Greece abandoned the antiquated " endorsement test," which formed the basis for the decision below.

In this case, at the request of the student bodies of the two relevant schools, the Elmbrook School District decided to hold its high-school graduation ceremonies at Elmbrook Church, a nondenominational Christian house of worship. The students of the first school to move its ceremonies preferred that site to what had been the usual venue, the school's gymnasium, which was cramped, hot, and uncomfortable. The church offered more space, air conditioning, and cushioned seating. No one disputes that the church was chosen only because of these amenities.

Despite that, the Seventh Circuit held that the choice of venue violated the Establishment Clause, primarily because it failed the endorsement test. That infinitely malleable standard asks whether governmental action has the purpose or effect of " endorsing" religion. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592-594, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). The Seventh Circuit declared that the endorsement test remains part of " the prevailing analytical tool for the analysis of Establishment Clause claims." 687 F.3d 840, 849 (2012) (internal quotation marks omitted). [*] And here, " 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." Id., at 853.

In Town of Greece, the Second Circuit had also relied on the notion of endorsement. See 681 F.3d 20, 30 (2012). We reversed the judgment without applying that test. What is more, we strongly suggested approval of a previous opinion " disput[ing] that endorsement could be the proper [Establishment Clause] test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the 'forthrightly religious' Thanksgiving proclamations issued by nearly every President since Washington." 572 U.S. at ___, 134 S.Ct. 1811, 1821, 188 L.Ed.2d 835, 848 (describing County of Allegheny, supra, at 670-671, 109 S.Ct. 3086, 106 L.Ed.2d 472 (KENNEDY, J., concurring in judgment in part and dissenting in part)). After Town of Greece, the Seventh Circuit's declaration--which controlled its subsequent ...

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