In
John Doe, 3 v. Elmbrook School District, (7th Cir., Sept. 9, 2011), the 7th Circuit, in a 2-1 decision, upheld against an Establishment Clause challenge the practice by two Wisconsin public high schools of holding their graduation ceremonies in a Christian church that the district rented for the occasion. Judge Ripple's majority opinion held:
We do not doubt that symbols can be used to proselytize or that, in the appropriate circumstances, coerced engagement with religious iconography and messages might take on the nature of a religious exercise or forced inculcation of religion.....
On this record, however, graduates are not forced—even subtly—to participate in any religious exercise “or other sign of religious devotion,” ... or in any other way to subscribe to a particular religion or even to
religion in general. They are not forced to take religious pamphlets, to sit through attempts at proselytization
directed by the state or to affirm or appear to affirm their belief in any of the principles adhered to by the Church or its members. Instead, the encounter with religion here is purely passive and incidental to attendance at an entirely secular ceremony.
Judge Flaum, dissenting, however argued:
I believe that conducting a public school graduation ceremony at a church—one that among other things
featured staffed information booths laden with religious literature and banners with appeals for children to join
“school ministries”—runs afoul of the First Amendment’s establishment clause....
In this case, high school students and their younger siblings were exposed to graduation ceremonies that put
a spiritual capstone on an otherwise secular education. Literally and figuratively towering over the graduation
proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the pre-eminent symbol of Christianity.... [T]he sheer religiosity of the space created a likelihood that high school students and their
younger siblings would perceive a link between church and state.
AP reports on the decision.
