February En Banc Part II: Doe v. Elmbrook School District

23 February 2012 Wisconsin Appellate Law Blog

On February 9, the Seventh Circuit heard en banc the thorny issue of whether conducting a public high school graduation ceremony in a church violates the First Amendment. The panel decision, written by Judge Ripple and joined by Chief Judge Easterbrook, affirmed the Eastern District of Wisconsin’s ruling that holding the ceremonies for Brookfield Central and Brookfield East in the Elmbrook Church sanctuary did not offend the Establishment Clause. Judge Flaum dissented.

The en banc argument suggests that the judges are divided on analytic approach and outcome. The plaintiffs’ counsel, who argued that holding graduation in a church has an impermissible endorsement effect, was met first with a question from Judge Posner about the nature of the perceived harm. Judge Wood later suggested that the harm might be the feeling of exclusion by some non-Christians. Some members of the Court also appeared concerned about the breadth of the plaintiffs’ proposed rule, inquiring whether a school outing to visit a cathedral or a municipality’s decision to put a polling place in a church would offend the Constitution. Judge Posner asked whether his public high school’s decision to hold ballroom dancing at a church would have been unconstitutional under the plaintiffs’ understanding of the First Amendment. And Judge Ripple queried whether, in the plaintiffs’ view, a public school-sponsored trip to Arlington should be prohibited because of the many crosses marking soldier burial sites. In response to counsel’s attempt to invoke the extent of the religious iconography present in Elmbrook church,  Judge Wood, who otherwise seemed receptive to the plaintiffs’ claim, joined Judge Posner in expressing skepticism about creating a jurisprudence that requires a federal court to scrutinize the interior design of religious buildings to decide whether the decor crosses a prohibited line.

Counsel for the school district was met with equally skeptical questioning from several judges. Much of the inquiry focused on the presence of the fact that the graduation occurred in a religious sanctuary. The district’s counsel essentially embraced the position that the Establishment Clause is not violated simply because some persons will choose not to attend graduation if it occurs in a place of worship other than their own. She was not willing, however, to concede that a village board could hold its meetings in the church sanctuary, at least if the history and context of the decision might suggest to a “reasonable objective observer” that the village was endorsing religion. Debate followed about whether the “reasonable observer” was a person who held beliefs other than those of the arguably endorsed religion — even beliefs that would prohibit them from attending activities in a church.

Identifying this “reasonable objective observer” to decide whether there is an impermissible endorsement of religion is no easy task. One could argue the hypothetical observer should be agnostic, burdened with neither the sensitivities of the minorities or the comfort of the majority with respect to the religious display at issue. One the other hand, if one views the purpose of the inquiry as deciding whether the government has impermissibly burdened persons with exposure to religious iconography that they do not favor, then it may be perfectly sensible to judge the impact from the standpoint of an “objective other-believer.” At all events, if the argument is any indicator, the judges are unlikely to reach unanimity on whether the decision to hold this government-sponsored graduation ceremony in a church sanctuary offends the First Amendment.

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