John Doe v. Elmbrook School Dist , 687 F.3d 840 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2922
JOHN D OE, 3, a minor by D OE 3’S
next best friend D OE 2, et al.,
Plaintiffs-Appellants,
v.
E LMBROOK S CHOOL D ISTRICT,
Elmbrook Joint Common
School District No. 21,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-cv-409—Charles N. Clevert, Jr., Chief Judge.
R EARGUED E N B ANC F EBRUARY 9, 2012—D ECIDED JULY 23, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
R IPPLE, K ANNE, W OOD , W ILLIAMS, S YKES, T INDER, and
H AMILTON, Circuit Judges.Œ
Œ
Circuit Judge Rovner took no part in the consideration or
decision of this case.
2 No. 10-2922
F LAUM, Circuit Judge. A group of past and present
students and their parents (collectively, the “Does”)
brought this action against the School District of Elm-
brook (the “District”), claiming that the District’s prac-
tice of holding high school graduations and related cere-
monies at a non-denominational, evangelical Christian
church was violative of the Establishment Clause of
the Constitution of the United States. For redress, the
Does sought injunctive, declaratory, and monetary
relief. After denying the Does’ motions for a preliminary
injunction and for summary judgment, the lower court
granted the District’s motion for summary judgment,
finding that the District did not act unconstitu-
tionally when it held secular high school ceremonies
at Elmbrook Church (the “Church”). The Does appealed.
Prior to being presented to our en banc Court, the
Does’ appeal was heard by a three-judge panel, which
produced a majority opinion with three holdings, of which
two were unanimous. Does v. Elmbrook Sch. Dist., 658 F.3d
710 (7th Cir. 2011) (vacated Nov. 17, 2011). The panel
first concluded that the Does’ case is justiciable, despite
the District’s cessation of holding high school cere-
monies at the Church. Next, the panel determined that
the district court did not err in allowing the Does to
proceed anonymously. Finally, a majority decided that
the District’s use of the Church did not violate the Estab-
lishment Clause. We adopt the panel’s original analysis
on the issues of justiciability and anonymity and
confine our discussion to whether the District’s actions
were constitutional under the First Amendment’s Estab-
lishment Clause. Our conclusion is that the public
No. 10-2922 3
school graduation ceremonies at issue, which took place
in the sanctuary of a non-denominational Christian
church, violated the Constitution.
Before advancing the reasoning behind our decision, it
is important to note the limited scope of this opinion.
The ruling should not be construed as a broad statement
about the propriety of governmental use of church-owned
facilities. Rather, the holding is a narrowly focused one,
as it must be under our Supreme Court’s jurisprudence.
See McCreary Cnty. Kentucky v. ACLU of Kentucky, 545
U.S. 844, 867 (2005) (“[U]nder the Establishment Clause
detail is key.”); Lee v. Weisman, 505 U.S. 577, 597 (1992)
(“Our Establishment Clause jurisprudence remains a
delicate and fact-sensitive one . . . .”); Lynch v. Donnelly, 465
U.S. 668, 694 (1984) (O’Connor, J., concurring) (“Every
government practice must be judged in its unique cir-
cumstances to determine whether it constitutes an en-
dorsement or disapproval of religion.”). See also Cohen v.
City of Des Plaines, 8 F.3d 484, 489 (7th Cir. 1993) (citing
Lynch, 465 U.S. at 678) (“[O]ur inquiry . . . under the
[Establishment Clause] necessarily ‘calls for line-drawing;
no fixed, per se rule can be framed.’ ”); Cooper v. U.S. Postal
Service, 577 F.3d 479, 494 (2d Cir. 2009) (“The fact that
a [Contract postal unit] is located in a religious
facility . . . does not offend the Establishment Clause.
Any violation must arise from the specific conditions
of [the defendant’s] structure and space, and its religious
displays.”).
Nor should this opinion be read as critical of the
cases permitting governmental use, in the proper
4 No. 10-2922
context, of certain church-owned facilities. See, e.g., Otero
v. State Election Bd. of Oklahoma, 975 F.2d 738 (10th Cir.
1992) (holding that the Establishment Clause does not
bar the use of churches as polling places in state and
municipal elections); Porta v. Klagholz, 19 F.Supp.2d 290,
302-04 (D.N.J. 1998) (finding that a charter school’s
use of space on church premises did not violate the Estab-
lishment Clause because, inter alia, “[t]here [was] no
evidence of any religious iconography in the classroom
area or in areas used by [the charter school].”). But see
Spacco v. Bridgewater School Department, 722 F.Supp. 834(D.Mass. 1989) (enjoining a school district from assigning
two students to classes held in facilities owned by
a church, based in part on the need for students to
“pass beneath a large cross” to enter the facility and the
existence of religious flyers that were confronted upon
entry). We do not question the vitality of those deci-
sions; rather, we underscore how this case differs. The
difference is one of degree, not kind. When confronted
with an Establishment Clause challenge of this nature, the
Supreme Court requires us to examine the context in
which government interacts with a religious organization.
Here, the involvement of minors, the significance of the
graduation ceremony, and the conditions of extensive
proselytization prove too much for the District’s actions
to withstand the strictures of the Establishment Clause.
We do not speculate whether and when the sanctuary
of a church, or synagogue, or mosque could hold public
school ceremonies in a constitutionally appropriate man-
ner. Nor do we seek to determine whether and when this
sanctuary, or one akin to it, could be properly used as the
No. 10-2922 5
setting for a graduation under other circumstances.
For example, if a church sanctuary were the only meeting
place left in a small community ravaged by a natural
disaster, we would confront a very different case. It is
not our charge to consider the myriad alterations to
the factual scenario before us in an attempt to determine
what circumstances could have rendered the District’s
practice constitutional. Rather, our duty is to consider
the set of facts before us, and on those facts, we conclude
that an unacceptable amount of religious endorsement
and coercion occurred when the District held important
civil ceremonies in the proselytizing environment of
Elmbrook Church.
I. Background
A. Facts
1. The District
The District is a municipal public school district
centered around Brookfield, Wisconsin, a suburb to the
west of Milwaukee. Its two major high schools are
Brookfield Central and Brookfield East. For part of the
last decade or so, Central and East have held their high
school graduation ceremonies in the main sanctuary
of Elmbrook Church,1 a local Christian evangelical and
1
The Does refer to the room in which the ceremonies were held
as the “sanctuary,” but the District insists that it actually is
called the “auditorium” and that it is labeled as such. Both
(continued...)
6 No. 10-2922
non-denominational religious institution. Central
began the practice in 2000, and East followed in 2002;
both schools rented the Church for graduation every
year thereafter through 2009. For at least some years
since 2003, Central also rented the Church’s chapel,
a smaller room, for its senior honors night. East rented
the Sharon Lynne Wilson Center for the Arts, a secular
facility, for its honors night.
The impetus to move Central’s graduation to the
Church appears to have come from the student
officers of the senior class of 2000, who believed that
the school’s gymnasium—the previous venue—was too
hot, cramped and uncomfortable. Those attending were
packed in; they had to sit on hard wooden bleachers
or folding chairs; and there was no air conditioning.
Seeking a better alternative, the student officers
decided upon the Church, which was much larger than
the gymnasium and had more comfortable seats, air
conditioning and ample free parking. They presented
their idea to District Superintendent Matt Gibson 2 and
1
(...continued)
parties agree that the Church itself refers to the room variously
as the “sanctuary,” the “Sanctuary/Auditorium” and the
“auditorium.” It is clear that the room is a religious venue and
that “[t]he Church holds its weekend worship services” there.
2
In September 1999, the senior class officers sent a letter to
Superintendent Gibson making their case for the Church:
We request that the site of the ceremony be changed to
an auditorium in Elmbrook Church . . . . As you know, the
(continued...)
No. 10-2922 7
then to the senior class, which voted in favor of the pro-
posal. After the vote, Principal Jim Brisco made the ulti-
mate decision to choose the Church, and Superintendent
Gibson approved. A similar process began at East two
years later, and Principal Joe Schroeder “eventually
adopted the proposal, after a majority of seniors voted
for it.” Until 2005, each year the students in the senior class
participated in advisory votes to choose between two
or three venues.3 These preliminary selections were made
2
(...continued)
graduation ceremony has been held in the Brookfield
Central Gymnasium for the past several years. The seating
in the Gymnasium is very limited, causing the atmosphere
to be very busy and perhaps even chaotic. On top of the
crowding, the temperature in the Gymnasium gets ex-
tremely hot in the month of June. We feel that the
Elmbrook Church will overcome the limitations of space
and temperature control, providing ample comfortable
seating and an air-conditioned room. The cushioned seats
are also much more comfortable in comparison to the hard,
wooden bleachers available at school. In addition, there
are more than enough parking spaces and excellent handi-
cap facilities available at the Church.
There is no information in the record about how the senior
class officers first learned of the Church or its amenities.
3
Other, secular graduation sites that have been suggested to the
District include the School gym and football fields, the Sharon
Lynne Wilson Center for the Arts, Carroll University’s Shattuck
Auditorium, Milwaukee Area Technical College’s Cooley
(continued...)
8 No. 10-2922
by school officials and senior class officers. The Church
was always one of them, and the Church invariably
emerged as the overwhelming favorite.4 In 2006, the
principals of East and Central determined that holding
a vote for the 2007 graduation venue would be pointless
and simply selected the Church after it was recom-
mended to them by the senior class officers of the two
schools.
Superintendent Gibson and Tom Gehl, a member of the
school board since 2005 and president of the school board
since 2009, are both members of the Church. The Does
have not alleged that Superintendent Gibson or
Board President Gehl have engaged in any efforts to steer
graduation ceremonies to the Church, nor do they
allege that either of these officials has misused his office
to benefit the Church or to form a relationship between
the District and the Church. While there is no evidence
that either Superintendent Gibson or Board President
Gehl influenced or attempted to influence the student
vote that resulted in the selection of the Church, Superin-
tendent Gibson ultimately had to approve of the deci-
3
(...continued)
Auditorium, the Pabst Theater in Milwaukee, the Waukesha
County Expo Center, the U.S. Cellular Arena in Milwaukee,
the Midwest Airlines Center in Milwaukee, and the Wisconsin
State Fair Park.
4
For example, in 2005, ninety percent of seniors at East voted
for the Church. Six percent chose the Expo Center, and four
percent chose the East gymnasium.
No. 10-2922 9
sions made at the school level.5
With the exception of Mr. Gibson, who has been Superin-
tendent of the District since 1995, the major players on
the District’s side have changed. Don LaBonte took over
as principal of Central in 2005 after two intervening
successors to Mr. Brisco. 6 In the same year, Brett Bowers
became principal of East when Mr. Schroeder left.7
The Church charged a standard rental rate to the
District, which ran between $2,000 and $2,200 for each
graduation exercise, and between $500 and $700 for
honors night. Money raised by the senior class of each
school covered part of the rental fees, and the District
funded the rest through its general revenues, which
come from property taxes.
2. Elmbrook Church
The atmosphere of the Church, both inside and outside
the sanctuary, is indisputably and emphatically Chris-
tian. Crosses and other religious symbols abound on the
Church grounds and the exterior of the Church building,
5
Superintendent Gibson was also involved in responding to
complaints about the District’s use of the Church and in coordi-
nating certain aspects of the rental arrangement with Church
officials.
6
Mr. Brisco was principal of Central from 1996 to 2002. Two
other principals, each with a tenure of a year, succeeded him
before Mr. LaBonte’s appointment to the position.
7
Mr. Schroeder was principal of East from 1999 to 2005.
10 No. 10-2922
and visitors encounter these symbols as they drive to the
parking lot and walk into the building. Many of these
symbols—including a cross on the Church roof and a
sign with a cross and the words “ELMBROOK
CHURCH”—are visible from the public intersection
outside the Church. The street names given to the drives
approaching the Church are “Agape” and “Barnabas.” 8
To reach the sanctuary, visitors must pass through
the Church lobby, which also has served as a natural
congregation point for graduates and their guests after
past graduation ceremonies. The lobby contains tables
and stations filled with evangelical literature, much
of which addresses children and teens, and religious
banners, symbols and posters decorate the walls.9 In
8
“Agape” is defined by the Oxford English Dictionary as
“Christian love (of God or Christ or fellow Christians . . . ).”
Oxford English Dictionary, available at http:// www. oed. com/.
Barnabas was an early Christian mentioned in the Bible. See Acts
4:36 (Revised Standard Version).
9
Some examples from images captured at past ceremonies:
Banners hanging on the lobby walls bear the messages “Know-
ing the Lord of Jubilee,” “Children’s Ministry: Leading Children
to a Transforming Life in Christ,” “JESUS” and “LORD OF
LORDS.” An antique-style wooden pushcart labeled “PRAYER”
sits in the hallway. A polygonal column displays religious
pamphlets and a large sign asking, “Puzzled . . . About Where
the Church should be Planted?” on one side. On another column
face is a poster labeled “Summer Godsquad.” The poster
proclaims, “Hey Jr. Highers! Who Are Your Heroes?” and
(continued...)
No. 10-2922 11
the middle of the lobby is a large, circular desk displaying
pamphlets such as “{young adults},” “{couples ministry},”
“{middle school ministry},” “{high school ministry}” and
“{college ministry}.” The District admits that Church
members manned information booths that contained
religious literature during the 2009 graduation, and a
DVD recording of the 2002 ceremony shows people
staffing these tables. The District also admits that
during the 2002 ceremony, “Church members passed
out religious literature in the lobby” although neither
the District nor the Does divulge further details about
how the distribution took place or at whose behest. Ac-
cording to Doe 1, when he attended his older sibling’s
graduation, “[m]embers of the church, instead of school
officials, handed out graduation materials during the
ceremony.”
The graduation ceremonies take place on the dais at
the front of the sanctuary, where school officials and
students with roles in the ceremony are seated. A large
Latin cross, fixed to the wall, hangs over the dais
9
(...continued)
displays cut-out images of movie characters such as E.T., Buzz
Lightyear and Marty McFly, a soccer player, unidentifiable
public figures and Jesus. On one wall, a carved wooden plaque
invites those who view it to “ ‘. . . go and make disciples of all
nations . . .’ Matthew 28:19.” On the walls are literature displays
labeled, among other things, “{children}” and “{student}.” In one
corner of the lobby, a table containing a computer and several
displays of religious literature sits under a sign labeled “{chil-
dren & student connect}.”
12 No. 10-2922
and dominates the proceedings. 1 0 The first time Central
held its graduation in the sanctuary, the cross was
covered, apparently by accident.1 1 During subsequent
graduations, the Church refused Superintendent
Gibson’s requests to veil the cross, in keeping with a
general Church policy against covering its permanent
religious displays. The Church did agree, however, to
remove any non-permanent religious symbols from the
dais. The chapel used by Central for its senior honors
night also contains a cross.
During the ceremonies, “graduating seniors . . . sit down
in the front, center rows of pews of the [sanctuary’s]
main level.” Guests sit in the other pews. The parties
agree that “Bibles and hymnal books remain in all the
pews,” as do a “yellow ‘Scribble Card for God’s Little
Lambs,’ a pencil, a donation envelope entitled, ‘Home
Harvest Horizon: offering to the work of Christ,’ ” and
other religious literature. There is no evidence that any
of these materials were placed in the pews specifically
for the graduation ceremonies.
3. The Controversy
Complaints about the District’s use of the Church
arose soon after the practice began. In 2001, a parent asked
10
“The cross is approximately 15 to 20 feet tall and approxi-
mately seven to ten feet wide.”
11
According to an email sent by Superintendent Gibson, the
cross “was inadvertently veiled by a custodian.”
No. 10-2922 13
the District to stop holding graduation ceremonies at
the Church because the parent, a non-Christian, did not
want her child exposed to the Church’s alleged
teachings about those who do not share its faith.1 2 In that
same year, the Freedom from Religion Foundation and
the American Civil Liberties Union (“ACLU”) of
Wisconsin voiced objections to the graduation site
and asserted that it violated the Constitution. The
Anti–Defamation League also objected in 2002, followed
by Americans United for Separation of Church and
State (“Americans United”) in 2007.
A series of exchanges in 2007 between Superinten-
dent Gibson and Aram Schvey, litigation counsel for
Americans United, explored the constitutionality of
the practice. Although he defended the venue, Super-
intendent Gibson assured Schvey that “there are no
references to religion or to the church in the gradua-
tion program,” that no religious literature would be
distributed and that Superintendent Gibson previously
has “request[ed] removal of any non-permanent
religious banners that may be on stage” and would con-
tinue to do so. Schvey appreciated these steps, but he
requested that the District cover the cross and “all other
religious iconography[,] including permanent banners,” or
select a secular venue. Superintendent Gibson responded
12
Specifically, the parent characterized as ” ‘intensely hateful
and violent’ ” the Church’s active promotion of ” ‘the idea that
people like [the parent] . . . are going to . . . a Hell-like place
undergoing endless torments.’ ” (alterations in original).
14 No. 10-2922
that the Church “made a policy decision several years
ago that [the cross] not be veiled for rentals.”
In many of the letters and correspondence, Superin-
tendent Gibson noted that the District was building a
new field house that could accommodate graduation
ceremonies and had been engaging in efforts to obtain
funding to renovate Central’s and East’s gymnasiums.
Although earlier efforts to obtain funding had failed,
the public later voted in favor of funding that
allowed the District to begin construction and renova-
tion. In 2010, Central and East moved their graduation
ceremonies to the District’s newly completed field house.
Additionally, in July 2009, Principal LaBonte declared
his intention to move Central’s 2010 honors night to
its newly renovated gymnasium; in supplemental
briefing before us, the District represented that the prom-
ised move had occurred. The District nonetheless
refused to state that it would never again hold a gradua-
tion in Elmbrook Church.
4. The Does
The plaintiffs are current and former students of
District schools and their parents. Doe 1 graduated
from either Central or East in 2009. Doe 2 is Doe 1’s
parent and has an older child whose graduation
ceremony was held in the Church four years earlier, as
well as younger children who attend Elmbrook schools.
One of Doe 2’s younger children is Doe 3, who “will
graduate from a District high school no later than 2014.”
Does 1 through 3 all attended the graduation ceremonies
No. 10-2922 15
of Doe 1 and of Doe 2’s older child. Does 4 and 9 are
the parents of children currently attending schools in
the district; their eldest children are expected to
graduate from high school in 2016 and 2015, respectively.
“Does 5 and 6 are the parents of Does 7 and 8, who gradu-
ated from a District high school in ceremonies held
at Elmbrook Church in 2002 and 2005, respectively.”
Does 2, 4, 5 and 6 also pay property taxes that go to
the District.
What the Does all have in common is that they are
not Christians.13 Those of the Does who attended
past graduation ceremonies “felt uncomfortable, upset,
offended, unwelcome, and/or angry” because of the
religious setting. In fact, the setting completely ruined
for Doe 5 the experience of his children’s graduation
ceremonies, some of which he did not attend.
Those plaintiffs still in school or with children still
in school do not relish the prospect of attending
future ceremonies at the Church.
According to the Does, there are many other
available venues that the District could use for its grad-
uation ceremonies. Moreover, the Wilson Center
could host Central’s senior honors night and indeed
does host East’s. The District already pays the Wilson
13
Doe 1 “subscribe[s] to a religious faith different from Chris-
tianity,” as do Does 2 and 3. Doe 4 is a humanist, “Does 5, 6, 7,
and 8 are atheists,” and “Doe 9 is non-theistic, chooses not to be
involved in religion, and does not subscribe to the religious
teachings of Elmbrook Church.”
16 No. 10-2922
Center a flat fee each year that allows District schools
ample access. The District responds that, although
other venues are available for graduation, none is
as attractive as the Church, particularly for the
price: approximately $2,000 per school per ceremony.
However, the Does believe that some of the other
venues are roughly equivalent in quality and price.
B. Proceedings Before the District Court
On April 22, 2009, the Does filed this action against
the District and moved simultaneously for a preliminary
injunction that would bar the District from holding its
2009 graduation ceremonies at the Church. After
the district court denied that motion, the Does filed
an amended complaint asking the district court to
enjoin permanently the District from holding school
events at the Church or, in the alternative, to enjoin
permanently the District from using the Church “unless
all visible religious symbols [were] covered or removed.”
They also sought damages and a declaratory judg-
ment. No discovery was taken, and the parties filed
cross-motions for summary judgment. The district
court denied the Does’ motion for summary judgment,
granted the District’s and dismissed the case.
After determining that the plaintiffs had standing, the
district court proceeded to its Establishment Clause
analysis. First, the district court held that the District
was not engaging in religious coercion of the sort that
the Supreme Court held to violate the Establishment
Clause in Lee v. Weisman, 505 U.S. 577 (1992), and Santa
No. 10-2922 17
Fe Independent School District v. Doe, 530 U.S. 290 (2000).
The district court distinguished those cases on the
ground that they “speak to coerced religious participa-
tion as opposed to exposure to religious symbols.” The
district court reasoned that, because there was no
religious exercise at the Elmbrook graduation ceremonies,
there was no coerced religious participation. Relying
on Lee, it held explicitly that the plaintiffs’ “unease and
offense at having to attend graduation ceremonies at the
Church and face religious symbols, while in no way
minor, is not enough.”
Second, the district court concluded that the District’s
use of the Church does not have the primary effect
of endorsing religion in violation of the test set forth by
the Supreme Court in Lemon v. Kurtzman, 403 U.S.
602 (1971). “On its face,” the district court conceded,
“the District’s decision to hold graduation ceremonies
and the senior honors event holds symbolic force.”
But because “the history and context of the community
and the forum reflect that secular concerns directed
the move away from school facilities toward an
adequate, convenient, cost-effective graduation venue,” a
reasonable observer would not understand the events
to be an endorsement of the Church or its teachings.
(internal quotation marks omitted).
Finally, the district court disagreed with the Does
that the use of the Church excessively entangled the
District with religion. The court found the rental of
the Church to be a standard fee-for-use arrangement
and a non-enduring relationship. It also determined
18 No. 10-2922
that the limited interaction between the District and the
Church over the physical setting did not delegate
impermissibly to the Church authority over the graduation
events. Accordingly, the district court granted sum-
mary judgment in favor of the District and dismissed the
case.
II. Discussion
We review a district court’s decision to grant
summary judgment de novo, making all reasonable
inferences in favor of the nonmoving party. Groesch v.
City of Springfield, 635 F.3d 1020, 1022 (7th Cir. 2011).
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
A. Legal Framework
The Establishment Clause of the First Amendment to
the Constitution of the United States, made applicable
to the actions of state and municipal governments by
the Fourteenth Amendment, Everson v. Bd. of Educ. of
Ewing Twp., 330 U.S. 1, 8 (1947), provides that “Congress
shall make no law respecting an establishment of reli-
gion.” U.S. C ONST. amend. I, cl. 1. The three-pronged test
set forth by the Supreme Court in Lemon v. Kurtzman, 403
U.S. 602 (1971), “remains the prevailing analytical tool for
the analysis of Establishment Clause claims.” Books v. City
of Elkhart (Books I), 235 F.3d 292, 301 (7th Cir. 2000); see
No. 10-2922 19
also Sherman ex rel. Sherman v. Koch, 623 F.3d 501, 507
(7th Cir. 2010) (applying the Lemon test), petition for
cert. denied, 132 S. Ct. 92 (U.S. Oct. 3, 2011); Milwaukee
Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 527
(7th Cir. 2009) (same). Under the Lemon test, a governmen-
tal practice violates the Establishment Clause if it
(1) lacks a legitimate secular purpose; (2) has the primary
effect of advancing or inhibiting religion; or (3) fosters
an excessive entanglement with religion. See Lemon,
403 U.S. at 612-13.
The Supreme Court has also advanced two other ap-
proaches by which an Establishment Clause violation
can be detected. In Lynch v. Donnelly, Justice
O’Connor’s concurrence asserted that under Lemon’s
“primary effect” prong, “[w]hat is crucial is that a gov-
ernment practice not have the effect of communicating
a message of government endorsement or disapproval
of religion.” 465 U.S. at 692 (O’Connor, J., concurring).
In accord with further Supreme Court precedent approving
of the endorsement approach, see, e.g., Cnty. of Allegheny
v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-
93 (1989) (opinion of Blackmun, J.) (“[W]e have
paid particularly close attention to whether the chal-
lenged governmental practice either has the purpose or
effect of ‘endorsing’ religion, a concern that has long
had a place in our Establishment Clause jurisprudence.”),
we have viewed the endorsement test as a legitimate
part of Lemon’s second prong, and observed that under
this test, we must “assess[] the totality of the circum-
stances surrounding the display to determine whether
a reasonable person would believe that the display
20 No. 10-2922
amounts to an endorsement of religion.” Books I, 235
F.3d at 304. The second additional Establishment Clause
approach—the coercion test found in Lee and Santa Fe—
seeks to determine whether the state has applied
coercive pressure on an individual to support or partici-
pate in religion. See Santa Fe, 530 U.S. at 312; Lee, 505 U.S.
at 587. Where the coercion test belongs in relation to
the Lemon test is less clear. Compare Doe ex rel. Doe v.
Beaumont Independent School Dist., 173 F.3d 274, 285-86
(5th Cir. 1999) (viewing the Lemon test, the endorsement
test, and the coercion test as separate methods by which
an Establishment Clause violation can be found); with
Lee, 505 U.S. at 604 (Blackmun, J., concurring) (noting that
while “government coercion is not necessary to prove
an Establishment Clause violation,” religious coercion
“is an obvious indication that the government is
endorsing or promoting religion.”). Apart from how one
views the coercion test in relation to the Lemon test,
however, it is evident that if the state “coerce[s] anyone
to support or participate in religion or its exercise,” an
Establishment Clause violation has occurred. Lee, 505
U.S. at 587.
Of course, the touchstone for Establishment Clause
challenges remains “the principle that the First Amend-
ment mandates government neutrality between religion
and religion, and between religion and nonreligion.”
McCreary Cnty., 545 U.S. at 860 (quotation marks omitted).
The determination is case-specific: whether a particular
practice violates the Establishment Clause is “in large
part a legal question to be answered on the basis of
judicial interpretation of social facts” which “must
No. 10-2922 21
be judged in their unique circumstances.” Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000).
B. Application
We conclude that conducting a public school gradua-
tion ceremony in 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 as applied to
the states via the Fourteenth Amendment’s Due Process
Clause.14 That conclusion is consistent with well-estab-
lished doctrine prohibiting school administrators from
bringing church to the schoolhouse. E.g., People of State
of Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No.
71, Champaign Cnty., 333 U.S. 203, 211-12 (1948) (religious
instruction in public schools held unconstitutional).
The same result should obtain when administrators
bring seminal schoolhouse events to a church—at least
to one with the proselytizing elements present in this
case. The constitutional flaw with such activity is that
14
While our discussion is focused on the school district’s
practice of holding graduation ceremonies at Elmbrook Church,
the same constitutional defects inhere in the district’s use of
the church for its honors night ceremonies. See Santa Fe, 530
U.S. at 311 (reasoning that conducting invocations at high
school football games did not escape the teachings of Lee
v. Weisman because extracurricular activities are “part of a
complete educational experience”).
22 No. 10-2922
it necessarily conveys a message of endorsement. More-
over, the Supreme Court’s “coercion cases,” Lee and
Santa Fe, cannot be meaningfully distinguished—both
because endorsement, especially as it relates to children,
has the potential to be coercive, and because there
was actual coerced activity in this case.1 5
1. Religious Endorsement
Establishment Clause jurisprudence has long guarded
against government conduct that has the effect of pro-
moting religious teachings in school settings, and the case
law has evinced special concern with the receptivity of
schoolchildren to endorsed religious messages. In
Stone v. Graham, 449 U.S. 39 (1980) (per curiam), for in-
stance, the Supreme Court barred enforcement of a Ken-
tucky statute requiring the posting of a copy of the Ten
Commandments on the wall of each public school class-
room within the state. The Court’s brief discussion con-
15
The Does do not argue that the District had a non-secular
purpose in choosing the Elmbrook Church for its graduation
ceremonies; thus, we need not consider the graduation ceremo-
nies under Lemon’s secular purpose prong. The Does do argue
that the District acted unconstitutionally by conferring
control over the physical setting of a public school event,
directing tax funds to support the propagation of religion, and
creating religious divisiveness. Since we conclude that the
District acted unconstitutionally on other grounds, we need
not address these arguments, nor must we consider the
District’s actions under Lemon’s entanglement prong.
No. 10-2922 23
cluded that the statute was in violation of Lemon’s
first prong, whether the legislation had a secular pur-
pose. Id. at 41 (concluding that the purpose for posting the
commandments was “plainly religious in nature”). In
reaching that conclusion, the Court entered into a discus-
sion of Lemon’s second prong, whether the primary effect
of government conduct advances or inhibits religion. The
Court reasoned that “[i]f the posted copies of the Ten
Commandments are to have any effect at all, it will be to
induce the school children to read, meditate upon, perhaps
to venerate and obey, the commandments.” Id. at 42.
We perceive essentially the same problem in the circum-
stances of this case.
Displaying religious iconography and distributing
religious literature in a classroom setting raises constitu-
tional objections because the practice may do
more than provide public school students with
knowledge of Christian tenets, an obviously permissible
aim of a broader curriculum. E.g., Edwards v. Aguillard,
482 U.S. 578, 608 (1987) (Powell, J., concurring).
The concern is that religious displays in the classroom
tend to promote religious beliefs, and students might
feel pressure to adopt them. Such concern was front
and center in Stone and apparent to one degree or
another in the Supreme Court’s school prayer cases.
See Wallace v. Jaffree, 472 U.S. 38 (1985) (Alabama
law authorizing a moment of silence for meditation
or voluntary prayer held unconstitutional); Sch. Dist.
of Abington Twp., Pennsylvania v. Schempp, 374 U.S.
203 (1963) (opening exercises featuring Bible recitation
and reading of Lord’s prayer held unconstitutional);
24 No. 10-2922
Engel v. Vitale, 370 U.S. 421 (1962) (prescribed daily
prayer held unconstitutional). The same problem attends
pervasive displays of iconography and proselytizing
material at a public secondary school graduation.
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 preeminent
symbol of Christianity. That symbol “carries deeply
significant meaning for those who adhere to the
Christian faith.” Salazar v. Buono 130 S. Ct. 1803, 1836 n.8
(2010) (Stevens, J., dissenting). Moreover, it is a symbol
that invites veneration by adherents. E.g., 2 St. Thomas
Aquinas, SUMMA T HEOLOGICA, q. 25, art. 3 at 2157
(Benzinger Bros., 1947). The cross, like many symbols, is
“pregnant with expressive content.” See Texas v. Johnson,
491 U.S. 397, 405 (1989). It acts as a “short cut from mind
to mind,” West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 632 (1943), for adherents who draw strength
from it and for those who do not ascribe to Christian
beliefs. Although the setting in which a symbol is dis-
played can shape its message, cf. Buono, 130 S. Ct. at 1811(plurality opinion) (stating that the purpose and intent
of a Latin cross placed on an outcropping in the desert
was “to honor American soldiers who fell in World
War I”), there is no doubt that a sectarian message
is conveyed by a cross prominently displayed in a
house of worship. See also McCreary Cnty., 545 U.S. at 868(stressing the importance of the context in which a “con-
No. 10-2922 25
tested object appears”) (quoting Cnty. of Allegheny
v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 595
(1989) (opinion of Blackmun, J.)); Van Orden v. Perry,
545 U.S. 677, 701 (2005) (Breyer, J., concurring) (discussing
contexts in which Ten Commandments displays might
appear).
What is more, Elmbrook Church’s sizeable cross was
not the only vehicle for conveying religious messages
to graduation attendees. Upon passing through the
exterior doors of the church, attendees proceeded into a
lobby that contained numerous religious materials. Those
materials included pamphlets for “middle school”
and “high school” ministries. The middle school ministry
pamphlet stated, “We are calling students to live and
love like Jesus.” As previously noted, a poster on the
wall asked, “Hey Jr. Highers! Who Are Your Heroes?”
and depicts pop culture icons alongside Jesus Christ.
Anticipating the desired answer to the poster’s question,
there were several stations indicating that children
and students could obtain religious literature tailored
to them. Among the banners that had been draped from
the lobby’s ceiling during graduation ceremonies was
one that read “Children’s Ministry: Leading Children
to a Transforming Life in Christ.” Moreover, all 360
degrees of the lobby’s substantial, circular informa-
tion booth were stocked with religious pamphlets. It
was staffed during at least some of the school district’s
graduation ceremonies, and the literature was readily
accessible even without the staff presence. Returning to
the sanctuary itself, which is where the ceremonies took
place, the pews were supplied with Bibles, hymnals,
26 No. 10-2922
and additional informational literature. Children in
attendance could find “scribble cards” in the pews on
which “God’s Little Lambs” could draw. Anyone could
partake of the cards soliciting membership in the
Church. During at least one graduation ceremony,
church members passed out religious literature directly
to audience members. Put simply, the environment was
pervasively Christian, obviously aimed at nurturing
Christian beliefs and gaining new adherents among
those who set foot inside the church.
Regardless of the purpose of school administrators 1 6
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
16
Each dissent suggests that the secular motivations underlying
the District’s choice help save the practice from constitutional
rejection, but we believe that this reasoning impermissibly
allows Lemon’s purpose inquiry to seep into the analysis of the
likely effect of the District’s actions. Lemon’s purpose inquiry has
rarely proved dispositive, McCreary Cnty., 545 U.S. at 859, and
the favorable features of the church, such as its space and
comfort, do not drive the ultimate inquiry into the constitu-
tionality of its use as a high school graduation venue. See
Lemon, 403 U.S. at 625 (noting that though taxpayers have been
spared considerable expense through the teaching efforts of
churches, the “benefits of these schools . . . are not the issue . . . .
The sole question is whether state aid to these schools can be
squared with the dictates of the Religion Clauses”).
No. 10-2922 27
and state.17 That is, the activity conveyed a message
of endorsement. High school graduations enjoy an
iconic place in American life. Lee, 505 U.S. at 583.
Given their centrality, the presence of religious iconogra-
phy and literature is likely to prove particularly powerful,
indicating to everyone that the religious message is
favored and to nonadherents that they are outsiders.
See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9 n.1
(1989) (quoting Wallace, 472 U.S. at 38 (O’Connor, J.,
concurring)). Here, the church was not just adorned
with its own symbols, it was draped in the high
schools’ decorations. Banners for the high schools were
17
Contrary to Judge Posner’s and Judge Ripple’s suggestions,
we do not view the constitutional violation as having been
triggered by the fact that the Does took offense to the gradua-
tion setting; rather, their reaction was symptomatic of the
violation. Nonadherents of a given faith might reasonably
take offense to the government’s endorsement of that faith, since
the endorsement sends the message that the nonadherents
are “outsiders, not full members of the political community.”
Lynch, 465 U.S. at 688 (O’Connor, J., concurring). If a particular
interaction between the government and religion does not
constitute endorsement, however, it would be unreasonable
for an individual to be offended by the legality of that action.
See Books I, 235 F.3d at 320 (Manion, J., concurring in part and
dissenting in part) (“It is important to note that while the
two plaintiffs involved in this case took offense to the Ten
Commandments monument, that is not dispositive because
the question is whether an ‘objective’ observer would
believe that the display constituted an endorsement of reli-
gion.”).
28 No. 10-2922
displayed in the lobby and in the sanctuary, mixed in with
the church’s religious decor and literature. In the sanctu-
ary, the high schools’ names were projected onto a
large screen adjacent to the Latin cross. Combined with
presence of the Church’s pamphlets for its “school”
ministries, the setting implied to nonadherents in atten-
dance that the school district placed its imprimatur on
Elmbrook Church’s message. See Santa Fe, 530 U.S. at 307-
08 (remarking on the intermixing of the invocation with
the accoutrements and hallmarks of high school life
and concluding that “the listening audience must
perceive the pregame message as a public expression of
the views of the majority of the student body delivered
with the approval of the school administration”).
True, the District did not itself adorn the Church with
proselytizing materials, and a reasonable observer
would be aware of this fact. But that same observer
could reasonably conclude that the District would
only choose such a proselytizing environment aimed at
spreading religious faith—despite the presence of children,
the importance of the graduation ceremony, and, most
importantly, the existence of other suitable graduation
sites—if the District approved of the Church’s message.
The effect of endorsement created by the school
district’s practice is not diminished by the explanation
that the space was rented and school officials could
exercise less control over the church than they could
over a schoolhouse. This view provides only superficial
appeal. The point appears most cogent with respect to
the Church’s cross, although the Church possessed
means of covering the symbol. The point appears less
No. 10-2922 29
cogent with respect to other aspects of the Church which
might have been easily modified to render the space
more inviting to others.1 8 This mode of distinguishing,
however, would have us look at the issue of control
through an exceedingly narrow prism. The critical facts
are that school administrators effectively required atten-
dance, because graduations are not truly optional, see
Lee, 505 U.S. at 595, and school administrators selected
the venue over several other suitable options. See Abington
Twp., 374 U.S. at 222 (the neutrality required by the Estab-
lishment Clause aims at preventing church and state
from acting in concert such that government support is
“placed behind the tenets of one or of all orthodoxies”); cf.
also Lamb’s Chapel v. Center Moriches Union Free Sch.
Dist., 508 U.S. 384, 395 (1993) (no Establishment Clause
concern for church group to use school space for an
event where the district created a public forum and the
event would have taken place outside of school hours
and without school sponsorship). Nor is the effect dimin-
ished by the administrators’ mechanism for choosing
the graduation site. The record indicates that, following
the results of student elections, the principals of the
high schools made the ultimate decisions on where to
hold graduation. A “student election does nothing to
18
None of this is to suggest that school officials should have
exercised a higher degree of control over the Church’s en-
vironment, scrubbing it of religious symbols or working to
tailor its message to a secular audience. Such a course would
have run afoul of emon’s excessive entanglement prong.
See Bowen v. Kendrick, 487 U.S. 589, 615-18 (1988).
30 No. 10-2922
protect minority views but rather places the students
who hold such views at the mercy of the majority.” Santa
Fe, 530 U.S. at 304; see also McCreary Cnty., 545 U.S. at 884
(O’Connor, J., concurring) (“[W]e do not count heads
before enforcing the First Amendment.”).
2. Religious Coercion
In addition to impermissibly endorsing religion, the
District’s decision to use Elmbrook Church for gradua-
tions was religiously coercive under Lee and Santa Fe. In
Lee, the Supreme Court invalidated a school district’s
practice of including benedictions at high school gradua-
tions, and highlighted two dominant facts. 505 U.S. at 585-
86. First, state officials were directing the performance
of a formal religious exercise at a graduation ceremony.
Id. Second, graduation ceremonies were effectively obliga-
tory even if attendance was technically voluntary. Id.After examining the totality of the circumstances, Lee,
505 U.S. at 597 (emphasizing the fact-sensitive nature of
the inquiry), the Court concluded that the conformity
required by the graduation ceremony “was too high an
exaction to withstand the test of the Establishment
Clause.” Id. at 598. The same basic concern was evident in
the Court’s discussions in Santa Fe, where the Supreme
Court rejected student-led prayer at football games. 530
U.S. at 301. The Court noted that while football games
may not be as “extraordinary” in terms of life impact
as graduation ceremonies, “the choice between attending
these games and avoiding personally offensive religious
rituals is in no practical sense an easy one” for some
No. 10-2922 31
students, and thus the principles in Lee governed. Id.
at 311-12.
The Supreme Court’s decisions in Lee and Santa Fe
cannot be meaningfully distinguished from the case at
bar on the ground that the school district did not coerce
overt religious activity. Lee, 505 U.S. at 605 n.6 (Blackmun,
J., concurring) (observing that as a practical matter “any
time the government endorses a religious belief there
will almost always be some pressure to conform”). Al-
though Lee and Santa Fe focus on the problem of coerced
religious activity, it is a mistake to view the coercion
at issue in those cases as divorced from the problem
of government endorsement of religion in the class-
room generally. In fact, they are two sides of the same
coin: “When the power, prestige and financial support
of government is placed behind a particular religious
belief, the indirect coercive pressure upon religious
minorities to conform to the prevailing officially
approved religion is plain.” Wallace, 472 U.S. at 60 n.51
(alteration omitted) (quoting Engel, 370 U.S. at 430). And
governmental efforts at shaping religious views may
prove effective over time. Lee, 505 U.S. at 592; cf. also A
Letter to Richard Burke, Esq., on Protestant Ascendency in
Ireland, in vol. VI W ORKS OF THE R IGHT H ONORABLE
E DMUND B URKE 395 (rev. ed. 1866) (“Man and his con-
science cannot always be at war.”). The fact that gradua-
tion attendees need not do anything but participate in
the graduation ceremony and take advantage of
religious offerings if they so choose does not rescue
the practice.
32 No. 10-2922
Further, there is an aspect of coercion here. It is
axiomatic that “[n]either a state nor the Federal Gov-
ernment . . . can force nor influence a person to go to or
to remain away from church against his will.” Everson
v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947). The
first principle is violated when the government directs
students to attend a pervasively Christian, proselytizing
environment. Cf. Cnty. of Allegheny, 492 U.S. at 664 (Ken-
nedy, J., concurring in part and dissenting in part) (observ-
ing in the context of creche displays that “[p]assersby
who disagree with [their] message[s] . . . are free to
ignore them, or even to turn their backs, just as they
are free to do when they disagree with any other form
of government speech”); Wallace, 472 U.S. at 72 (O’Connor,
J., concurring) (noting that under an appropriately
crafted moment of silence law a student “who objects to
prayer . . . is not compelled to listen to the prayers
or thoughts of others”). Once the school district creates
a captive audience, the coercive potential of endorse-
ment can operate. When a student who holds minority
(or no) religious beliefs observes classmates at a
graduation event taking advantage of Elmbrook Church’s
offerings or meditating on its symbols (or posing for
pictures in front of them) or speaking with its staff mem-
bers, “[t]he law of imitation operates,” Wallace, 472 U.S.
at 60 n.51, and may create subtle pressure to honor the
day in a similar manner. See also id. at 81 (O’Connor, J.,
concurring) (where children are concerned, government
endorsement “is much more likely to result in coerced
religious beliefs”). The only way for graduation attendees
to avoid the dynamic is to leave the ceremony. That is a
No. 10-2922 33
choice, Lee v. Weisman teaches, the Establishment Clause
does not force students to make. See also McCreary Cnty.,
545 U.S. at 881-82 (O’Connor, J., concurring) (“Free people
are entitled to free and diverse thoughts, which govern-
ment ought neither to constrain nor to direct.”).
III. Conclusion
In sum, if constitutional doctrine teaches that a
school cannot create a pervasively religious environment
in the classroom, Wallace, 472 U.S. 38; Stone, 449 U.S.
39; Abington Twp., 374 U.S. 203; Engel, 370 U.S. 421, or
at events it hosts, Santa Fe, 530 U.S. 290; Lee, 505 U.S. 577,
it appears overly formalistic to allow a school to engage
in identical practices when it acts through a short-term
lessee. See Lee, 505 U.S. at 595 (“Law reaches past formal-
ism.”). The same risk that children in particular
will perceive the state as endorsing a set of religious
beliefs is present both when exposure to a pervasively
religious environment occurs in the classroom and
when government summons students to an offsite
location for important ceremonial events.
The determination that the District operated outside
permissible constitutional bounds should in no way
be viewed as expressing hostility toward Elmbrook
Church or its members. The First Amendment, via its
Free Exercise Clause, guarantees that government will not
impinge on the freedom of individuals to celebrate
their faiths, in the day-to-day, or in life’s grand moments.
Without question, that is a desirable goal. Whether the
event is a meal, a graduation, or a funeral, a signpost or
34 No. 10-2922
a diversion, sincerely held religious beliefs can remind
one to give thanks, spur reflection, or provide emotional
rescue in dark days. Religion can lead one to perform
works that benefit the community or meditate on what
it means to live the good life. Secular belief systems,
of course, can serve those ends, too, e.g., A RISTOTLE,
N ICHOMACHEAN E THICS (J. E. C. Welldon trans., 1923);
Seneca, On the Shortness of Life, in I A D L UCILIUM E PISTULAE
M ORALES 322 (Richard M. Gummere trans., 1918), and the
Establishment Clause reinforces the promise of the
free exercise clause by prohibiting government from
influencing how a person relates to the universe. “A state-
created orthodoxy puts at grave risk that freedom of
belief and conscience which are the sole assurance that
religious faith is real, not imposed.” Lee, 505 U.S. at 592;
see also McCreary Cnty., 545 U.S. at 883 (O’Connor, J.,
concurring).
We conclude that the practice of holding high school
graduation ceremonies in the Elmbrook Church sanctuary
conveys an impermissible message of endorsement.
Under the circumstances here, the message of endorse-
ment carried an impermissible aspect of coercion, and
the practice has had the unfortunate side effect of
fostering the very divisiveness that the Establishment
Clause was designed to prevent.
Accordingly, we R EVERSE the district court’s grant
of summary judgment for the District, R EVERSE the
district court’s denial of summary judgment in favor of
the Does, and R EMAND to the district court for pro-
ceedings consistent therewith.
No. 10-2922 35
H AMILTON, Circuit Judge. I join fully Judge Flaum’s
opinion for the en banc court. His opinion provides
a straightforward application of Establishment Clause
doctrine to a relatively new context, when a public school
chooses to hold one of its defining ceremonies in the
sacred worship space of a particular faith. Judge Flaum’s
opinion explains thoroughly and persuasively why
this case cannot be meaningfully distinguished from Lee
v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent
School District v. Doe, 530 U.S. 290 (2000). I write
separately only to respond to some concerns raised by
the dissenting opinions—not their disagreements with
Supreme Court precedents, but three specific criticisms
of the court’s opinion that deserve respectful attention
and response.
First, Judge Ripple’s and Judge Posner’s dissents
suggest that this decision will invite a new jurisprudence
of iconography, one that will focus on the details of
religious symbols on display and that may even allow
public school graduation ceremonies in worship spaces
used by some faiths and not others. Judge Ripple
suggests that this decision will itself endorse “safe reli-
gions,” and Judge Posner wonders how this precedent
should apply to churches that have few religious
symbols or images in their sanctuaries. I do not share
these fears. Judge Flaum’s description of the details of
the large cross over the altar and the other religious
symbols and activities in the Elmbrook Church
illustrates the sacred character of this particular wor-
ship space and the experience of non-believers when
they attend public school graduation ceremonies there. The
36 No. 10-2922
logic of the court’s opinion points toward a conclusion
that those specific details are not decisive. The critical
point is that this important rite of passage in the life of a
public school and its students is held in the sacred
worship space of any faith, absent unusual and ex-
tenuating circumstances such as a temporary emergency.
We all recognize that a divisive parsing of differences
between faiths would be anathema to First Amendment
law and religious liberty. Nevertheless, Judge Flaum
is prudent to decide only the facts actually before us
and to leave room to consider unexpected facts and
new arguments in later cases.
Second, the dissenting opinions accuse the plaintiffs
and those who agree with them of hypersensitivity or
applying a standard of an “obtuse” observer rather
than a reasonable one. In Establishment Clause litiga-
tion, this is often the response to plaintiffs of minority
religious traditions. The point calls for a deeper response
in terms of how courts evaluate claims that a govern-
ment practice endorses a particular faith. When federal
courts deal with entanglements between government
function and private religious faith, we confront some
of the most sensitive aspects of our Nation’s public life.
We try to hold the delicate balance between the Estab-
lishment Clause and the Free Exercise Clause. We try
to ensure that we recognize and protect faith and its
importance in our individual, community, and national
lives, on the one hand, while avoiding government sup-
port, endorsement, and subtle coercion in favor of par-
ticular faiths, on the other. To maintain these balances,
the endorsement test asks whether a reasonable observer,
No. 10-2922 37
apprised of the circumstances and history of the disputed
governmental practice, would conclude that it conveys
a message of endorsement or disapproval of religious
faith. E.g., Milwaukee Deputy Sheriffs’ Ass’n v. Clarke,
588 F.3d 523, 528 (7th Cir. 2009).
The danger, of course, is that this “reasonable, objective
observer,” as in most fields of law, tends to sound a lot
like the judge authoring the opinion. See Utah Highway
Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12, 19-
21 (2011) (Thomas, J., dissenting from denial of certiorari)
(describing disagreements among circuit judges’ views
of the reasonable observer). Judge Posner raises this
concern, noting that judges in Establishment Clause
cases inevitably will “fall back on their priors, that is,
on beliefs based on personality, upbringing,” atti-
tudes toward religion, and even political orientation.
Post at 71-72.
The solution is not to require those troubled by gov-
ernment endorsement of religion to stop complaining
and adopt an austere, Senecan stoicism. Rather, as
judges, we must do our level best to overcome our individ-
ual perspectives. We can do so by deliberately trying
to see the situation from others’ points of view. When
deciding a question of endorsement, it is critical that
the inquiry include the perspective of those who do not
share the faith at issue. The key question is whether a
given practice “sends the . . . message to . . . nonadherents
‘that they are outsiders, not full members of the political
community.’ ” Santa Fe, 530 U.S. at 309-10 (opinion for
the Court), quoting Lynch v. Donnelly, 465 U.S. 668, 688
38 No. 10-2922
(1984) (O’Connor, J., concurring); see also Capitol Square
Review & Advisory Bd. v. Pinette, 515 U.S. 753, 799 (1995)
(Stevens, J., dissenting) (“It is especially important to
take account of the perspective of a reasonable observer
who may not share the particular religious belief [the
State] expresses.”); Lee v. Weisman, 505 U.S. at 606
n.9 (Blackmun, J., concurring) (“Direct government
action endorsing religion or a particular religious
practice is invalid under this approach because it sends
a message to nonadherents that they are outsiders, not
full members of the political community, and an accompa-
nying message to adherents that they are insiders,
favored members of the political community.”), quoting
Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J.,
concurring in judgment); Lawrence H. Tribe, American
Constitutional Law § 14-15, at 1293 (2d ed. 1988) (“in de-
ciding whether a government practice would im-
permissibly convey a message of endorsement, one
should adopt the perspective of a non-adherent”).
Adopting the perspectives of reasonable non-
adherents should dampen any tendency judges may have
to allow their own subjective sensibilities to creep
into the legal analysis. By asking whether a govern-
m en tal prac tice w ou ld m ake m embers of a
religious minority group reasonably feel that their faith
is disfavored, the focus shifts from the perceptions
of the in-group to those of the out-groups. These two
perspectives will often diverge. “[A]ctions that
reasonably offend non-adherents may seem so natural
and proper to adherents as to blur into the background
noise of society.” Tribe, supra, at 1293. It is too easy for
No. 10-2922 39
a majority to underestimate the needs and values of
minorities. See Goldman v. Weinberger, 475 U.S. 503, 523-
24 (1986) (Brennan, J., dissenting).
This additional focus also strengthens the First Amend-
ment’s core value of protecting members of minority
faiths and non-believers from persecution and exclu-
sion by religious majorities. See Engel v. Vitale, 370 U.S.
421, 431 (1962) (“When the power, prestige and
financial support of government is placed behind a par-
ticular religious belief, the indirect coercive pressure
upon religious minorities to conform to the prevailing
officially approved religion is plain.”); Everson v. Bd.
of Educ. of Ewing Twp., 330 U.S. 1, 9-10 (1947) (Religion
Clauses were adopted against backdrop of “religious
establishments which all, whether believers or
non-believers, would be required to support and attend”
and “old world practices and persecutions” “designed to
strengthen and consolidate the established faith by gen-
erating a burning hatred against dissenters”); see also
Pinette, 515 U.S. at 799 (Stevens, J., dissenting) (“A para-
mount purpose of the Establishment Clause is to protect
such [a nonadherent] from being made to feel like an
outsider in matters of faith, and a stranger in the political
community.”); Goldman, 475 U.S. at 524 (Brennan, J.,
dissenting) (“A critical function of the Religion Clauses
of the First Amendment is to protect the rights of
members of minority religions against quiet erosion
by majoritarian social institutions that dismiss
minority beliefs and practices as unimportant, because
unfamiliar.”).
40 No. 10-2922
This does not mean that any time a non-adherent plain-
tiff perceives a government endorsement of another
faith, the inquiry is over and the plaintiff wins. Far from
it. The reasonable observer test assumes a non-
adherent who knows the history and circumstances of
the governmental practice in question, and who
remains, well, reasonable. This case becomes relatively
easy, though, when the relevant constitutional question
is: Would a non-Christian student or parent attending
the graduation at Elmbrook Church have reasonably
felt excluded by the choice of location? Judge Flaum’s
opinion for the court considers this question and
correctly concludes that the answer is yes.
To make the point another way, it would be much
easier to treat these plaintiffs as “hypersensitive” or
“obtuse” if there were any evidence that other public
schools in the United States were using worship spaces of
minority religions for graduation ceremonies. Would
Christian majorities feel comfortable or excluded if
their public school graduation ceremonies were held in
synagogues, mosques, or Baha’i temples, for example?
There is no indication that has ever happened anywhere
in the United States. If it were proposed, I expect there
would be significant opposition from many Christian
students and their families, probably expressing views
familiar to the plaintiffs in this case. In applying the
endorsement test, therefore, if we think non-adherents
might be hypersensitive, we should imagine the shoe
on the other foot. Call it the Golden Rule, the Categorical
Imperative, or what you will, this principle of reciprocity
is fundamental to morality and the rule of law. In the
No. 10-2922 41
endorsement analysis in this case, therefore, we
should ask ourselves whether members of the religious
majority would be comfortable participating in and
attending graduation ceremonies in such venues sacred
to other faiths. In the absence of evidence of such events,
I believe the answer for many would be no.
This point is not a criticism of those who would prefer
not to have their ceremonies in such locations. The
point is that the plaintiffs in this case, who are not ad-
herents of the majority Christian faith in this school
district, were not unreasonable, obtuse, or hypersensitive
in perceiving a government endorsement of Christianity
when rites of passage with the symbolic importance
of public high school graduations were held in a
Christian sanctuary beneath the powerful symbol of the
empty cross.
Third, the dissenting opinions say the court’s decision
will invite a parade of difficult challenges to routine
and benign government activities. I respectfully sug-
gest that these challenges are not difficult. The dissenting
opinions attempt, for example, to equate holding a gradu-
ation ceremony in sacred worship space to holding
a ceremony in a sports arena or a movie theater, to se-
lecting a brand of piano or beverage, or to praising
the virtues of eating beef. These comparisons all have
the unintended effect of demeaning religious faith
and denying the power of its symbols, both for those
who believe and for those who do not. The dissents’
hypotheticals are easily distinguishable on this basis.
The dissents’ strongest point is the analogy to voting.
Voting in public elections takes place in many churches
42 No. 10-2922
and at least some synagogues and mosques, as well
as schools, fire stations, town halls, and other public
buildings. Voting is the defining way that citizens par-
ticipate in governing. Why does the court’s reasoning
on the public school’s graduation ceremony not extend
to voting in churches and other places of worship? A
closer look at the “history and circumstances” of voting
practices provides the answer.
First, voting usually takes place in non-consecrated
parts of the church or other place of worship. See, e.g.,
Otero v. State Election Bd., 975 F.2d 738, 741 (10th Cir. 1992)
(use of churches as polling places defended where
churches “typically have a commons area, parish hall,
foyer, nursery or some other such nonconsecrated
portion of the church building which can be used as
the polling place”). In addition, there are ready alterna-
tives—such as absentee or early voting—for voters who
do not wish to vote in a house of worship where they
are not comfortable. See Berman v. Bd. of Elections, 420
F.2d 684, 685 (2d Cir. 1969) (holding that availability of
absentee voting and voting in adjoining district
rendered moot the First Amendment claims of a voter
who objected to voting in church).1
1
Chief Judge Easterbrook notes the variations in state laws on
absentee voting and early voting, post at 68 n. †, but most states,
including Illinois and Wisconsin, allow early or absentee voting
for any reason. See 10 ILCS 5/19-1; Wis. Stat. § 6.20. Indiana law
allows both early and absentee voting for a host of reasons, so it
would not be difficult for a voter who was unwilling to vote at
(continued...)
No. 10-2922 43
In terms of history and circumstances, American
election days have historically been all-hands-on-deck
efforts, calling on hundreds of thousands of volunteer
poll workers and owners of many thousands of all sorts
of public and private buildings to provide convenient
neighborhood voting. Yes, voting takes place in churches,
but also in synagogues, mosques, Masonic temples, skating
rinks, funeral homes, bakeries, and so on. Even if a voter
perceives an endorsement by use of a church for his
particular polling place, the informed reasonable observer
would know that many houses of worship from many
faiths, along with a wide variety of other public and
private spaces, are used to make voting as convenient as
possible. From this more complete perspective, there is
no endorsement of a particular faith but instead a some-
times frantic effort to find enough places willing to put
up with the traffic and disruption that go with running
an election. Finally, voting in the modern United States
remains an individual act, alone in a voting booth, rather
than a public ritual that is a symbolic rite of passage,
like a graduation ceremony. All of these circumstances
diminish the risk of government endorsement of a particu-
lar faith when churches are used as polling places. If these
1
(...continued)
a place of worship to do so. See Ind. Code § 3-11-10-24. If the
court confronts a case where conscience prevents a voter from
voting at the designated site and there truly is no practical
alternative, the court can deal with it then. For the students and
families of the Elmbrook School District, by contrast, there was
no alternative graduation ceremony.
44 No. 10-2922
grounds for distinction may not apply in a particular
voting case, there will be time to consider the particulars.
The court’s reasoning in this case should not affect the
way that voting is ordinarily handled in the United States.
* * *
When the Nation’s Founders set the boundaries on
the power of government, the first words they ratified in
the Bill of Rights were “Congress shall make no
law respecting an establishment of religion . . . .” The
Founders recognized that we are a people of many
strong and vigorous faiths. They acted to protect the lib-
erty to practice any of those faiths or none at all.
They also knew centuries of history in which religious
conflicts had caused war and oppression. They recognized
that even the best intentions of people of faith can lead
to division, exclusion, and worse. So enforcing the Estab-
lishment Clause is not hostile to religious liberty. It pro-
tects that liberty for all. It is no accident that religious
faith remains so vibrant in this Republic that has
guarded against government establishment, including
government endorsement, of particular faiths. As the
author of the First Amendment wrote: “experience
witnesseth that ecclesiastical establishments, instead of
maintaining the purity and efficacy of Religion, have had
a contrary operation.” James Madison, Memorial and
Remonstrance Against Religious Assessments (1785), in 8
The Papers of James Madison 295, 301 (W. Rachal, R. Rutland,
B. Ripel & F. Teute eds., 1973). Judge Flaum’s opinion
for the court reaches and ably explains the correct result
in this case.
No. 10-2922 45
R IPPLE, Circuit Judge, with whom E ASTERBROOK, Chief
Judge, and P OSNER, Circuit Judge, join, dissenting. In the
panel opinion,1 I set forth, in plenary fashion, my views
on the appropriate disposition of this case. There, I
wrote that, on the basis of existing law and on the facts
of record, the district court correctly granted summary
judgment because, in reply to the defendants’ motion for
summary judgment, the plaintiffs simply had not come
forth with sufficient evidence to establish a violation of
the Establishment Clause. I adhere to that view, and,
rather than elongate unduly this opinion, I invite the
reader’s attention to the views that I expressed there.
Although I could stop at this point, my respect for the
views of my colleagues in the majority and my obligations
to the Supreme Court, which very well might be asked
to review this matter on a petition for a writ of certiorari,
and to my fellow judges in other circuits, who might
face similar arguments in future cases, require that I set
forth the basis of my respectful disagreement with the
analysis employed in the majority opinion.
There is no disagreement between myself and the
majority about the general principles of Establishment
Clause jurisprudence. The majority correctly notes the
three-pronged test of Lemon v. Kurtzman, 403 U.S. 602(1971), under which a governmental practice violates the
Establishment Clause if it lacks a legitimate secular pur-
pose, if it has the primary effect of advancing or inhibiting
1
Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 710 (7th Cir.
2011).
46 No. 10-2922
religion or if it fosters an excessive entanglement with
religion. See Lemon, 403 U.S. at 612-13. The majority also
observes, correctly, that the Supreme Court has held
that, under the “primary effect” prong of the Lemon test,
the government cannot engage in a practice that has
the primary “effect of communicating a message of gov-
ernment endorsement or disapproval of religion.” Lynch
v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., con-
curring) (emphasis added); see also Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 308 (2000) (recognizing that
the endorsement analysis proposed by Justice O’Connor
is a “relevant question” in Establishment Clause cases).
To violate this principle, the governmental practice must
amount to an endorsement of religion or of non-religion.
Finally, the majority notes, again correctly, that the Estab-
lishment Clause forbids coercive pressure on an
individual to support or to participate in a religious
activity. See Santa Fe, 530 U.S. at 312; Lee v. Weisman,
505 U.S. 577, 587, 592-93 (1992).
Although we agree on the basic legal framework gov-
erning Establishment Clause cases, there remains a sig-
nificant legal disagreement between my views and those
expressed by my colleagues in the majority opinion.
With great respect, I cannot accept, as a threshold
matter, the majority’s view that its holding today is only
a fact-specific application of these general principles and
that this case is nothing more than the judicial analogue
No. 10-2922 47
of an excursion ticket “good for this day and train only.” 2
In my view, today’s holding significantly alters existing
principles in Establishment Clause analysis with respect
to coercion. In doing so, it sets this circuit’s Establish-
ment Clause jurisprudence in a direction that may result
in another form of coercion—the coercion of religious
entities to conform to a judicially crafted notion of an
acceptable “civil religion.” 3 Those religious entities that
resist this pressure will be marginalized in American
civil life. This result is neither required nor sanctioned
by Supreme Court precedent. In short, by extending
established law beyond the limits of its underlying ratio-
nale, the majority has transformed, significantly, the
work of the Supreme Court and recalibrated, significantly,
the relationship of religion and government. The court
therefore “has decided an important federal question in
a way that conflicts with relevant decisions” of the Su-
preme Court of the United States.4
The court’s decision today rests on its extension of the
Supreme Court’s decisions in Lee and Santa Fe beyond
the boundaries of their rationales. In those cases, the
Supreme Court held that including a prayer in the
official program of a high school graduation ceremony
or football game amounted to state sponsorship of reli-
gious activity and coerced the attending students to
2
Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dis-
senting).
3
See infra note 17 and accompanying text.
4
Supreme Court Rule 10(c).
48 No. 10-2922
participate, at least passively, in that religious prayer
activity. There, the state had affirmatively sponsored,
endorsed and coerced participation in a specific
religious activity. In Lee, students were expected to
stand while a member of the clergy publically recited a
prayer as part of the graduation program. The Court
noted that “[t]he undeniable fact is that the school
district’s supervision and control of a high school grad-
uation ceremony places public pressure, as well as peer
pressure, on attending students to stand as a group or,
at least, maintain respectful silence during the invoca-
tion and benediction.” Lee, 505 U.S. at 593. What had
occurred, concluded the Court, was that the public school
district, by conducting its graduation ceremony in such
a way, effectively had “required participation in a
religious exercise.” Id. at 594. Similarly, in Santa Fe, the
Court determined that including a student-led prayer
in the program of a football game placed the same sort
of pressure on the unwilling student attendee. The gov-
ernment, the Court concluded, had improperly coerced
the student attendees to participate in an act of religious
worship. Santa Fe, 530 U.S. at 312. This practice violated
the basic maxim that “the religious liberty protected by
the Constitution is abridged when the State affirma-
tively sponsors the particular religious practice of
prayer.” Id. at 313.
The majority takes the view that the situation before
us today is controlled by the holdings of Lee and Santa Fe.
The difficulty is that the record simply does not show
the same governmental endorsement, sponsorship or
coercion of any religious activity. Indeed, an examination
No. 10-2922 49
of the record makes it clear that no such governmental
sponsorship, endorsement or coercion in fact took place.
Faced with this total absence of any showing of govern-
mental sponsorship, endorsement or coercion of any
religious activity—the essential focus of the Supreme
Court’s holdings in Lee and in Santa Fe—the majority
opinion makes the fulcrum of its argument another anal-
ogy and declares that the leasing of space in a church for
a high school graduation is the constitutional equivalent
of “bringing church to the schoolhouse.” Majority Op.
at 21. It suggests that the mere presence of religious
iconography and similar furnishings in the rented
church makes the use of the church’s facility an imper-
missible endorsement of religion that has the coercive
effect of promoting religion. An examination of the situa-
tion before us reveals the inappropriateness of this
analogy and the novelty of the legal principle and the
resulting judicial methodology that it produces.
Here, the District did not yet have a field house that
could accommodate large assemblies and was in need of
an interior venue for its graduation and honors cere-
monies until it could construct a suitable facility of its
own. The space at the church was among the rental
spaces available in the area. Indeed, it appears from
the record that the church regularly makes its facility
available to groups for other assemblies. There is no
indication in the record—and counsel makes no argu-
ment—that the rental was anything other than an arm’s-
length business transaction between the District and the
church. There is no indication that the church made any
50 No. 10-2922
special concession from its usual rental policies in order
to attract the District’s business or to facilitate its use of
the property.
Because the court believes that the degree of religiosity
of the church’s physical appearance is of prime im-
portance to its new theory of coercion, it presents a de-
tailed description of the church’s interior and its sur-
rounding landscape, a description that would differ
very little if one were to visit countless places of worship
across our Nation on any given day. There is no sugges-
tion in the record that the church altered its appearance
in any way to proselytize its visitors. Indeed, there is
no indication in the record that the church viewed this
rental arrangement as an opportunity to proselytize.
The graduation ceremony was completely devoid of
references to religion, to the church that rented the space
or to any other church. There was no prayer, no religious
speaker. No member of the clergy, from the landlord
church or from any other congregation, participated in
the ceremony or was present on the dais.
The mere recitation of these facts demonstrates that
the rhetorical analogy of “bringing church to the school-
house” limps badly; a closer examination makes it clear
that the analogy falters completely. Common, practical
experience establishes that the graduation ceremony is
hardly the same as the instructional setting of a public
high school. No doubt, as the Justices noted in Lee, a
public high school graduation is a community celebra-
tion of great significance to the students, their parents and
relatives, the faculty and the entire community whose
No. 10-2922 51
tax dollars have supported the educational endeavor. 5
Student attendance, even if not technically mandatory, is
to be expected. Nevertheless, although the graduating
students, and presumably their guests, may have been a
“captive audience,” 6 it certainly cannot be maintained
that, like in Lee and in Santa Fe, they were coerced
into participating, actively or passively, in any religious
ceremony or activity. The validity of the majority’s prop-
osition therefore depends on whether the students
can be said to have been coerced or indoctrinated in
any other way by their attendance at the graduation
ceremony.
As the majority points out, the Supreme Court has held
that the posting of theologically based material, such as
the Ten Commandments,7 in a public school classroom,
or the saying of a prayer 8 or the affording of a period of
5
See Lee v. Weisman, 505 U.S. 577, 595-96 (1992).
6
Id. at 630 (Souter, J., concurring).
7
Cf. Stone v. Graham, 449 U.S. 39, 42 (1980) (“Posting of religious
texts on the wall serves no such educational function. If the
posted copies of the Ten Commandments are to have any effect
at all, it will be to induce the schoolchildren to read, meditate
upon, perhaps to venerate and obey, the Commandments.
However desirable this might be as a matter of private
devotion, it is not a permissible state objective under the
Establishment Clause.”).
8
Engel v. Vitale, 370 U.S. 421, 430-31 (1962).
52 No. 10-2922
silence for prayer or meditation 9 in the classroom
setting, carries a message of endorsement of the under-
lying religious principles to the students and, in the
classroom environment, can have a coercive effect on
those students who do not adhere to those underlying
beliefs. “When the power, prestige and financial support
of government is placed behind a particular religious
belief, the indirect coercive pressure upon religious
minorities to conform to the prevailing officially approved
religion is plain.” Engel v. Vitale, 370 U.S. 421, 431 (1962).1 0
From these cases, the majority asks that we accept that
the students will perceive the same endorsement
and the same coercion from the incidental presence of
iconography, ornamentation and literature in the
building rented by their school district for several
hours for an admittedly secular graduation ceremony.
Our Establishment Clause jurisprudence fortunately has
progressed beyond such stereotypical prognostica-
tions. We require far more than proximity before we
vitiate civil-religious relationships on the ground of
endorsement, symbolic union or coercion.1 1
9
Wallace v. Jaffre, 472 U.S. 38 (1985).
10
See also id. at 60 n.51 (quoting Engel, 370 U.S. at 431, and
collecting similar expressions of this principle).
11
See Lynch v. Donnelly, 465 U.S. 668, 678 (1984) (“In our modern,
complex society, whose traditions and constitutional under-
pinnings rest on and encourage diversity and pluralism in all
areas, an absolutist approach in applying the Establishment
Clause is simplistic and has been uniformly rejected by the
(continued...)
No. 10-2922 53
To the reasonable attendee, including the honored high
school graduates and “reasonable non-adherents,” 1 2 it
was obvious that the public high school that educated
the graduates does not own the church and did not place
in the church the various displays and iconography
that disturb the plaintiffs. Indeed, the graduates knew
well that the iconography belonged to the landlord
church, not to their school. They knew that the iconogra-
phy represents the beliefs of those who use the space, on
another day, as a place of worship, not a place of gradua-
tion. Indeed, it would be totally unreasonable for any
student to attribute to the District any endorsement of
the message of the iconography; it belongs to—and they
know it belongs to—someone else. It symbolizes the
landlord’s view, not the District’s view. In a building
rented for a single occasion of several hours duration,
the presence of religious iconography hardly raises a
message of endorsement by the very temporary tenant,
the District. The graduating students, now by virtue
of their graduation, must be considered capable of exer-
cising the judgment expected of all reasonable citizens
11
(...continued)
Court.”); Agostini v. Felton, 521 U.S. 203, 223-25 (1997) (over-
ruling Aguilar v. Felton, 473 U.S. 402 (1985), and Sch. Dist. of
Grand Rapids v. Ball, 473 U.S. 373 (1985), and noting that the
Court had “repudiated [the] assumption on which Ball and
Aguilar turned: that the presence of a public employee on
private school property creates an impermissible ‘symbolic
link’ between government and religion”).
12
See Opinion of Hamilton, J., at 38.
54 No. 10-2922
of a democratic polity. Similarly, the fact that a church
would have all kinds of religious literature and informa-
tion on its programs and on its premises was no great
revelation to the graduation visitors. Such material is
found in most churches in this Nation—as well as in the
newspapers, television programs and websites to which
the average American turns everyday. As one of my
colleagues noted at oral argument, if the District had
chosen to rent a local movie theater for its graduation,
no reasonable person would have thought that the ad-
vertisements for the coming attractions adorning the
lobby bore any endorsement from the high school.
In short, when the government places a Ten Command-
ments poster on the wall of its school building, it is
there for the instructional benefit of the students, and it is
reasonable for the students to believe that the school
authorities have endorsed it.1 3 When the “message”
appears in a church rented for a non-instructional purpose
for several hours, the same conclusion is not reasonable
at all. In the case before us, the record makes clear that
the school district endorsed no religious doctrine,
practice or institution. At most, its rental of the space at
the church recognized the existence of the church, a reality
certainly permissible under the Religion Clauses.1 4
13
Stone, 449 U.S. at 42.
14
Cf. Lynch, 465 U.S. at 673 (“No significant segment of our
society and no institution within it can exist in a vacuum or in
total or absolute isolation from all the other parts, much less
from government.”).
No. 10-2922 55
The plaintiffs nevertheless claim that they “felt uncom-
fortable, upset, offended, unwelcome, and/or angry,”
Appellants’ Br. 17, because of the religious setting. The
Establishment Clause forbids the government’s showing,
in any way, support for, or a partiality to, any religion,
broadly defined. The Establishment Clause forbids the
government from endorsing a religion or a religious
practice and, in so doing, creating a message that there
are “ins” and “outs” on the basis of religious preference
within the political community. It protects the individual
from the government’s coercing him, because of govern-
mental endorsement, to join or participate actively or pas-
sively in the activity of any religion.1 5 But the Establish-
ment Clause does not, and cannot, protect an individual
from personal emotional and psychological unpleasant-
ness.16
Bereft of any substantive support from Lee or Santa Fe,
the majority opinion nevertheless maintains that mere
exposure of the graduation audience to the “pervasively
religious,” Majority Op. at 33, and, in its view, “proselytiz-
ing environment,” id. at 5, of the church is per se coercive.
15
Cf. Lee, 505 U.S. at 594 (“The injury caused by the govern-
ment’s action[] . . . is that the State, in a school setting, in
effect required participation in a religious exercise.”).
16
See id. at 597 (“We do not hold that every state action im-
plicating religion is invalid if one or a few citizens find it
offensive. People may take offense at all manner of religious
as well as nonreligious messages, but offense alone does not
in every case show a violation.”).
56 No. 10-2922
It accepts the plaintiffs’ argument that, by convening
the graduation in a rented church facility that contains
the iconography, decorations and literature of the land-
lord church, the audience is being coerced unconstitu-
tionally to be in the company of these religious signs
and symbols. In accepting this argument, the court re-
moves the governing case law from its doctrinal
moorings and creates a new and, in my view, dangerous
principle in Establishment Clause jurisprudence. Al-
though the majority’s holding is pointedly limited to the
situation before it, that holding is animated by the as-
sertion that the government must take on the responsi-
bility to ensure that its relationships, including its con-
tractual relationships, with religious entities do not
offend the sensibilities of those who do not care to be
exposed to the outward manifestations of a particular
religion or of any religion.
Although the development of this new perspective on
the breadth of the Establishment Clause must await
future cases, it bears noting that the court suggests no
principled limitation to this new broad endorse-
ment/coercion doctrine. The court offers no reason why
this new perspective ought not control any relationship
or encounter between any other significant govern-
mental activity and “pervasively religious” organizations.
Majority Op. at 33. Under the approach it announces
today, judges apparently are to determine whether a
religious institution is too “pervasively religious” to make
any participation, including a mere contractual arrange-
ment, between the institution and the civil community
No. 10-2922 57
unconstitutionally coercive. Judges are to accomplish
this task, moreover, through “an unguided examination
of marginalia [that] is irreconcilable with the imperative
of applying neutral principles in constitutional adjudica-
tion.” Cnty. of Allegheny v. Am. Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U.S. 573, 676 (1989) (Ken-
nedy, J., concurring in judgment in part and dissenting
in part).
It would seem that the probable, and perhaps inevitable,
result of this new direction in Establishment Clause
analysis is that institutions determined to be “pervasively
religious” will be excluded from any participation in
the civil polity because their “religiosity” would amount
to coercive endorsement on the part of the government.
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. 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.1 7
The appearance of any “pervasively” religious organiza-
17
See Lee, 505 U.S. at 589-90 (noting that the government may not
promote the development of a “civic religion” and stating that
“religious beliefs and religious expression are too precious to
be either proscribed or prescribed by the State”); see also James
J. Knicely & John W. Whitehead, In God We Trust: The Judicial
Establishment of American Civil Religion, 43 John Marshall L.
Rev. 869, 894-99 (2010).
58 No. 10-2922
tion would amount, under the majority’s view, to unac-
ceptable “coercion” of those individuals who might
come into even incidental contact with its religious and,
in the view of the court, apparently divisive nature. We
would no longer be a polity “that lets each [religion]
flourish according to the zeal of its adherents and the
appeal of its dogma.” Zorach v. Clauson, 343 U.S. 306,
313 (1952).
As a decision of the en banc court, today’s decision
will become a cornerstone of our circuit’s Religion
Clause jurisprudence. Therefore, despite the majority’s
good faith attempt to limit its decision to the situation
before it, we must examine carefully whether the
rationale and methodology it advances will affect other
areas of American life. The tremors of this decision will
no doubt be felt in the area of education. After today’s
decision, it is difficult to see how any religious sign or
symbol associated with a “pervasively religious” institu-
tion could be allowed even to cast a shadow on a public
educational institution, or on an event sponsored by
such an institution. Although we must await further
cases to know for certain how the court will treat these
situations, the doctrinal and methodological founda-
tion has been laid for a fresh look at many current gov-
ernmental practices. A public school administration
must now consider whether it must forbid teachers
from wearing religiously based accessories in the class-
room. The court’s opinion emphasizes that endorse-
ment/coercion concerns are highest in the classroom. Will
the schoolteacher be permitted to wear her necklace
adorned with the Star of David? Will her Christian col-
No. 10-2922 59
league be permitted to wear a gold cross as a lapel pin?
Or to appear in the classroom with ashes in the form of
a cross on his forehead at the beginning of Lent? Will
the Muslim teacher be allowed to cover her head with a
scarf in the classroom? Or will “the sheer religiosity,”
Majority Op. at 26, of these displays constitute endorse-
ment of religion? Will public high school athletic teams be
permitted to enter “pervasively religious” schools for
interscholastic academic or athletic activities? Assuming
that such interscholastic events are allowed to continue,
will the students from Christian schools be asked to
refrain from raising their banners that contain a school
coat of arms with the cross predominately displayed or
will they have to refrain from doing so in order not
to “coerce” their public school opponents? Will the basket-
ball or track team of such schools be permitted to
wear athletic uniforms with such a pervasively religious
symbol in plain sight? What principled distinction does
the court suggest to ensure that the approach it
establishes in this case will not spread its dominion to
these situations? After all, graduations are not the only
momentous events in the civil life of a community, and
the mere presence of “pervasively religious” symbols in
such a setting now must be considered as a coercive
endorsement by the state.
Other important areas of American life also will feel
the effect of this decision. Can the local elections board
preparing for this year’s general election really count on
using polling places in religious institutions? In the
court’s view, would it really be constitutionally acceptable
for a voter to pass by a statue of the Virgin Mary or a
60 No. 10-2922
banner suggesting one should “Come Home to Christ”
on the way to a polling booth on ecclesiastical property?
Surely, there is no more basic function of a civil
community than the act of casting a ballot. As Judge
Posner notes,18 the majority does not consider that the
average high school graduate is eighteen years old and
that the Twenty-Sixth Amendment prohibits the govern-
ment from denying citizens who have attained that age
the right to vote on account of their perceived youth.
Accordingly, the majority fails to recognize that many
citizens cast their first ballots before, or shortly after,
their high school graduations. Although one’s gradua-
tion is no doubt a momentous event in his life, 1 9 voting is
the method by which we “share in the sovereignty of
the state” and which “ought to stand foremost in the
estimation of the law.” 3 Papers of Alexander Hamilton
543-45 (Harold C. Syrett ed., 1979). The majority does
not explain why a reasonable eighteen-year-old would
understand that the government’s selection of a church
as his polling place does not endorse religion, but its
selection of a church as his graduation venue does.
Nor does it explain how holding a graduation in a church
“ ‘force[s] . . . a person to go to . . . church against his
will,’ ” 20 but conducting an election in a church does
not. Although the court applies its new perspective only
18
See Opinion of Posner, J., at 79.
19
See Lee, 505 U.S. at 595.
20
Majority Op. at 32 (quoting Everson v. Bd. of Educ. of Ewing
Twp., 330 U.S. 1, 15 (1947)).
No. 10-2922 61
to the case before it and no other, it nevertheless creates
a legal principle without suggesting a disciplined limita-
tion to that principle.
There has been, in recent times, a great deal of judicial
and academic discussion about the continued viability of
Lemon v. Kurtzman 2 1 and of the “endorsement test” in
particular.22 Today’s decision, adding a new wedge into
the traditional relationship of the Nation’s religious and
civil life and adding a new dimension to the intrusive-
ness of judicial decision-making into the decisions of
local government officials, supports significantly the
voices of those who urge the need for a reassessment.
At bottom, today’s holding requires that the state
assume the affirmative obligation of avoiding any as-
sociation with a “pervasively religious” organization
when that association would require an individual to
be exposed—even incidentally and passively—to expres-
sions of that organization’s “religiosity.” Should this
principle, and the judicial methodology that such a prin-
ciple necessarily would require, become imbedded in
our law, it will undermine significantly the principles
that presently form the foundations of our Establishment
Clause jurisprudence. Those religions that toe the line
and conform to the profile of a “safe religion” will enjoy
21
See, e.g., Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132
S. Ct. 12, 21 (2011) (Thomas, J., dissenting from the denial of
certiorari).
22
See id. at 17-18; see also Jesse H. Choper, The Endorsement Test:
Its Status and Desirability, 18 J.L. & Pol. 499, 510-35 (2002).
62 No. 10-2922
full acceptance by the civil polity. Those who remain
“pervasively religious” will find themselves in the shad-
ows of the American journey. They will be the permanent
“outsiders” in the American conversation.2 3 Because
today’s decision sets the stage for such a jurisprudence,
I respectfully dissent.
E ASTERBROOK, Chief Judge, dissenting. I agree with Judge
Ripple about how the Supreme Court’s current doctrine
applies to these events. I also agree with Judge Posner
that this doctrine is too plastic, making it easy for judges
to disagree about its application, as we do today. If
the current establishment-clause doctrine had been an-
nounced by Congress or an administrative agency, the
Supreme Court would declare it unconstitutionally vague.
See FCC v. Fox Television Stations, Inc., No. 10-1293 (U.S.
June 21, 2012). It is hard to see why the Judicial
Branch should exercise more discretion in formulating
doctrine than it accords to other branches of government.
Standards such as those found in Lemon v. Kurtzman, 403
U.S. 602 (1971), and the “no endorsement” rule, not only
23
Santa Fe, 530 U.S. at 309-10 (quoting Lynch, 465 U.S. at 688(O’Connor, J., concurring)).
No. 10-2922 63
are hopelessly open-ended but also lack support in the
text of the first amendment and do not have any historical
provenance. They have been made up by the Justices
during recent decades. The actual Establishment Clause
bans laws respecting the establishment of religion—which
is to say, taxation for the support of a church, the employ-
ment of clergy on the public payroll, and mandatory
attendance or worship. See generally Leonard W. Levy,
The Establishment Clause: Religion and the First Amendment
(2d ed. 1994); Philip Hamburger, Separation of Church
and State 89–107 (2002); Michael W. McConnell, Establish-
ment and Disestablishment at the Founding, Part I: Establish-
ment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003).
Holding a high school graduation in a church does not
“establish” that church any more than serving Wheaties
in the school cafeteria establishes Wheaties as the official
cereal. See also Michael W. McConnell, Coercion: The
Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933(1986).
The rationale of judicial review is that the Constitution
prevails over legislation through conflict-of-laws princi-
ples. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
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. 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 histori-
cally have protected the rights of religious minorities.
(The Religious Freedom Restoration Act, 42 U.S.C.
§§ 2000bb to 2000bb–4, and the Religious Land Use and
64 No. 10-2922
Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to
2000cc–5, are recent examples. Allowing conscientious
objection to military service is an older one.) The federal
judiciary cannot invoke Marbury when it is judges, rather
than those who wrote and approved the Constitution,
who create the rules. And as both Lemon and the no-
endorsement approach are judicial creations rather
than restatements of the first amendment’s meaning,
they do not justify a claim by judges to have the final
word. I have made this point elsewhere, so I do not
present an extended argument here. See Frank H.
Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev.
349 (1992); Frank H. Easterbrook, Textualism and the Dead
Hand, 66 Geo. Wash. L. Rev. 1119 (1998). See also American
Jewish Congress v. Chicago, 827 F.2d 120, 128–40 (7th Cir.
1987) (dissenting opinion).
The District needed a large, air-conditioned auditorium
for graduation. It rented one for the day. The record does
not show (indeed, plaintiffs do not contend) that the
District rented space from Elmbrook Church because of
its status as a church—as opposed to indifference to its
status as a church, or even despite its status as a church.
Cf. Personnel Administrator of Massachusetts v. Feeney, 442
U.S. 256, 279 (1979). The record does not show that
the District wanted to “send a message.” Quite the con-
trary: as soon as suitable space was available in the Dis-
trict’s own facilities, it stopped using the church. The
only message a reasonable observer would perceive is
that comfortable space is preferable to cramped, over-
heated space. It may be hard to define the reasonable
observer. But all of the Justices agreed in Capitol Square
No. 10-2922 65
Review & Advisory Board v. Pinette, 515 U.S. 753 (1995), that
the benchmark is a reasonable rather than an obtuse
observer. No reasonable observer believes that renting
an auditorium for a day endorses the way the landlord
uses that space the other 364 days.
Elmbrook Church is full of religious symbols—but any
space is full of symbols. Suppose the School District
had rented the United Center, home of the Chicago Bulls
and the Chicago Blackhawks. A larger-than-life statue of
Michael Jordan stands outside; United Airlines’ logo is
huge. No one would believe that the School District
had established basketball as its official sport or United
Airlines as its official air carrier, let alone sanctified
Michael Jordan. And if the District had rented the
ballroom at a Hilton hotel, this would not have endorsed
the Hilton chain or ballroom dancing.
Suppose instead that the School District had rented a
movie theater, full of posters for current and future
attractions. Would this have endorsed movies or coerced
anyone to buy tickets? Of course not. Thus if, as many
decisions hold, the government is entitled to be neutral
between religion and non-religion, e.g., Employment
Division v. Smith, 494 U.S. 872 (1990), there is no basis for
distinguishing Elmbrook Church from the United Center,
the Hilton Milwaukee City Center, or the Palace Theater.
Neutrality requires the state to treat religious beliefs and
symbols the same as secular beliefs and symbols, not to
disfavor religion. The Court has held that public bodies
sometimes may choose to avoid dealing with a religious
vendor, but it has not held that avoidance is compulsory.
66 No. 10-2922
Compare Locke v. Davey, 540 U.S. 712 (2004) (a state may
decline to extend scholarships for education at a seminary),
with Witters v. Washington Department of Services for the
Blind, 474 U.S. 481 (1986) (Establishment Clause allows
such scholarships, if the state is neutral between
religious and secular educations).
My colleagues in the majority say that “the message of
endorsement carried an impermissible aspect of coer-
cion” (slip op. 34). If there’s no endorsement, there’s
no coercion either. But the majority does not ex-
plain how endorsement coerces. If the District were to
name Steinway the “official piano of Elmbrook School
District,” this would not coerce any student or family
member to favor Steinway over Baldwin or Yamaha in
his musical life, or play the piano rather than the piccolo.
In school-prayer decisions such as Lee v. Weisman, 505 U.S.
577 (1992), and Santa Fe Independent School District v.
Doe, 530 U.S. 290 (2000), the Court found that fear of
ostracism for public refusal to rise and pray could coerce
non-believers to participate. But no prayer or other wor-
ship occurred during the School District’s graduations;
no signs of assent were elicited, so no one was at risk of
ostracism for withholding them.
Government often takes sides. Many decisions, of which
Johanns v. Livestock Marketing Association, 544 U.S. 550(2005), is a recent example, hold that government is
entitled to articulate the position held by elected officials.
In Livestock Marketing the messages favored the consump-
tion of beef. Producers who did not want to send that
message (at least, did not want to pay for it) protested that
No. 10-2922 67
they had been coerced, but the Court held that the dis-
senting producers could not use the first amendment to
oblige the government to desist. The government cannot
compel any private person to speak (or to keep silent), but
the government’s expression of its own views does not
coerce anyone else to do anything—either to praise or
eat beef, or to disdain chicken.
My colleagues’ assertion that endorsement is coercive
cannot be reconciled with Livestock Marketing. The
government-speech doctrine articulated in Livestock
Marketing applies to religious subjects as well as secular
ones: Pleasant Grove v. Summum, 555 U.S. 460 (2009), holds
that a public body may erect its own monuments, express-
ing its own point of view, without entitling a religious
group to equal space. Similarly, Congress may add “under
God” to the Pledge of Allegiance as its own point of view
without coercing anyone to say the words. See Sherman v.
Wheeling School District, 980 F.2d 437 (7th Cir. 1992). The
President’s call for a National Day of Prayer does not
coerce anyone to pray. See Freedom from Religion Foundation,
Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011). Perhaps Sum-
mum will lead the Court to reconsider the no-endorse-
ment branch of Establishment Clause doctrine; but
whether it does or not, Summum and other government-
speech cases show that endorsement differs from coercion.
If holding graduation in a church endorses that church
and coerces support of its religion, does holding elections
in a church endorse that church or coerce support of its
religion? At least two appellate courts have held that
government may use churches as convenient polling
68 No. 10-2922
places. See Otero v. State Election Board, 975 F.2d 738 (10th
Cir. 1992); Berman v. Board of Elections, 19 N.Y.2d 774(1967). The majority disclaims having an opinion on that
topic (slip op. 3-4), but we cannot disavow the logical
implications of our decisions. The churches in Otero
and Berman surely were as “pervasively religious” (slip
op. 33) as Elmbrook Church; all churches are “pervasively
religious.” If graduation in a church is forbidden be-
cause renting a religious venue endorses religion, and
if endorsement is coercive, then renting a religious
venue for voting must be equally unconstitutional.
All of the objections the majority makes to graduation
in a church apply to voting in a church. At oral argument,
counsel for the plaintiffs contended that voting is not
problematic because voters spend less time in polling
places than students and families do in graduation ceremo-
nies. This may or may not be true. Sometimes there are
long lines. Anyway, for persons who object on principle to
entering a house of worship, or a place where a faith
different from theirs worships, the length of time inside
is irrelevant; these persons will not pass the doors.^
^
In some jurisdictions, including Wisconsin, any voter “unable
or unwilling” to vote at the designated polling place may cast an
absentee ballot. See Wis. Stat. §6.20. Other states limit absentee
voting to persons who will be out of the jurisdiction, are not
ambulatory, or for other reasons cannot vote in person. Still
others take a middle position. Indiana permits mail voting by
persons whose faith prohibits them from entering a house of
(continued...)
No. 10-2922 69
It is easier to justify graduation in a church than voting
in a church. No one should feel obliged by conscience
or faith to give up his influence in governance—and that’s
what voting represents. A rule of neutrality between
religious and secular sites permits government to use
religious venues for graduation and voting alike, though
I do not think it wise to use a church for either function.
But acting inconsiderately toward persons whose
sincere views disfavor conducting public business in
religious venues differs from establishing a religion.
^
(...continued)
worship being used as a polling place. Ind. Code §3-11-10-
24(a)(9). Persons whose beliefs make voting in a church obnox-
ious, but do not prohibit that act on religious grounds, are not
similarly accommodated. Cf. Berman v. Board of Elections, 420
F.2d 684 (2d Cir. 1969) (holding that accommodating those
whose religious views prohibit entry is constitutionally suffi-
cient and adding, id. at 686, that “any incidental burden [from
holding elections in churches] is so slight that it does not begin
to outweigh the interest of the state in having available to it the
additional polling places which the use of the churches af-
fords.”). Absentee voting therefore is not a general solu-
tion—and voters who want to follow the campaign to the end
may choose to avoid absentee voting even when they are
eligible.
70 No. 10-2922
P OSNER, Circuit Judge, dissenting. I don’t agree that by
choosing—and not for religious reasons—to conduct its
graduation ceremony in a church, a public high school
transgresses the command in the First Amendment that
“Congress [and by interpretation of the Fourteenth
Amendment state governments as well] shall make no
law respecting an establishment of religion.” (Actually
two schools are involved, both located in Brookfield,
Wisconsin, but for the sake of simplicity I’ll pretend
they’re one and call it Brookfield High.)
The case law that the Supreme Court has heaped on
the defenseless text of the establishment clause is widely
acknowledged, even by some Supreme Court Justices, to
be formless, unanchored, subjective and provide no
guidance. See, e.g., Utah Highway Patrol Ass’n v. American
Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of
certiorari) (“Establishment Clause jurisprudence [is] in
shambles,” “nebulous,” “erratic,” “no principled basis,”
“Establishment Clause purgatory,” “impenetrable,” “ad
hoc patchwork,” “limbo,” “incapable of consistent ap-
plication,” “our mess,” “little more than intuition and a
tape measure”); Lamb’s Chapel v. Center Moriches Union
Free School District, 508 U.S. 384, 398-99 (1993) (concurring
opinion) (a “geometry of crooked lines and wavering
shapes,” a “ghoul in a late night horror movie” that can’t
be slain even though “no fewer than five of the currently
sitting Justices have, in their own opinions, personally
driven pencils through the creature’s heart”).
The text and history of the establishment clause
provide no clue to whether a public high school (a virtually
No. 10-2922 71
nonexistent institution in the eighteenth century) “estab-
lishes” religion when it holds its graduation ceremony
in a church. The opaque phrase “respecting an establish-
ment” casts no light on the question. The phrase may
have been substituted for “establishing” so that the
federal government would be forbidden not only to
create an established church but also to disestablish
New England’s quasi-established churches. See, e.g., Kent
Greenawalt, “Common Sense about Original and Sub-
sequent Understandings of the Religion Clauses,” 8 U. Pa.
J. Const’l L. 479, 484-85 (2006). But Noah Feldman, “The
Intellectual Origins of the Establishment Clause,” 77 NYU
L. Rev. 346, 405-08 (2002), presents a powerful argument
against the second half of this interpretation.
It’s no help to the cause of constitutional interpreta-
tion that religion is an emotional subject and that there is
no systematic evidence of the social, political, psychologi-
cal, cultural, ethical, or indeed religious consequences
of the display of religious symbols in today’s United
States. Here as elsewhere evidence-based law remains a
dream. The Supreme Court’s effort to marshal some
evidence in Lee v. Weisman, 505 U.S. 577, 593-04 (1992), was
a flop, as pointed out in Donald N. Bersoff & David J.
Glass, “The Not-So Weisman: The Supreme Court’s Contin-
uing Misuse of Social Science Research,” 2 U. Chi. L. Sch.
Roundtable 279, 288-93 and n. 95 (1995). With no
guidance from the Constitution or the social sciences,
judges inevitably fall back on their priors, that is, on
beliefs based on personality, upbringing, conviction,
experience, emotions, and so forth that people bring to a
question they can’t answer by the methods of logic and
72 No. 10-2922
science or some other objective method. A judge’s political
orientation is a particularly important clue to his or her
likely vote in a case arising under the religion clauses of
the First Amendment; conservative judges are more
favorable to religion in their decisions than liberal ones,
though only on average rather than in every case.
Michael Heise & Gregory C. Sisk, “Religion, Schools, and
Judicial Decision Making: An Empirical Perspective,” 79
U. Chi. L. Rev. 187 (2012); Gregory C. Sisk & Michael
Heise, “Ideology ‘All the Way Down’? An Empirical Study
of Establishment Clause Decisions in the Federal Courts,”
110 Mich. L. Rev. 1201 (2012).
The best that a judge of determined neutrality faced
with a case such as the present one can do is to be guided
by Gibbon’s aphorism (from chapter 2 of the Decline and
Fall) that “the various modes of worship, which prevailed
in the Roman world, were all considered by the people,
as equally true; by the philosopher, as equally false; and
by the magistrate, as equally useful.” For “the Roman
world” substitute “the United States” and for “the magis-
trate” substitute “the judge” and one has the right
starting point for the analysis of this case. 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 recog-
nition 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. One can certainly agree with the
Supreme Court that “all creeds must be tolerated and
No. 10-2922 73
none favored.” Lee v. Weisman, supra, 505 U.S. at 589-90; see
also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 532-33 (1993); Everson v. Board of Education,
330 U.S. 1, 15-16 (1947). And for this purpose atheism
(in ancient Rome the philosophers’ creed) is a religious
creed.
Elmbrook Church is a huge church (a “megachurch”)
self-described as “a non-denominational, evangelical
Christian church that welcomes people of all back-
grounds. We believe that God loves all people and that
His word, the Bible, has practical spiritual guidance
for every life situ ation .” “A b ou t E lm b rook,”
www.elmbrook.org/about-elmbrook/ (visited July 10,
2012). The students at Brookfield High overwhelmingly
and emphatically deemed the school’s gym an inade-
quate venue for the graduation ceremony. Yet it was
the only possible one on the school’s grounds (apart
from the football field, also deemed inadequate—the
students wanted to be indoors with air conditioning).
Bowing to their wishes the school chose Elmbrook
Church, the students’ first choice. The plaintiffs do not
argue that the choice was motivated by religious con-
siderations even though the school district’s superinten-
dent attends it. Nor do they deny that purely secular
considerations, such as seating capacity, comfort,
location, and price, may well have made the church the
best alternative to the school’s gym.
The graduation, though held in the church’s
auditorium (a designation that the church uses inter-
changeably with “sanctuary”), where religious services
74 No. 10-2922
are held on Sunday, is conducted by school officials rather
than by church officials and is entirely secular. It is the
same ceremony that would have been conducted in
the school’s gym had graduations been held there.
The auditorium is dominated by a huge cross on the
front wall, facing the pews. Religious banners festoon
the interior walls and proselytizing pamphlets are
within easy reach of persons seated in the pews and
walking through the lobby. At at least one graduation
the lobby’s religious-information booths were staffed.
And at that or another graduation church members
passed out religious literature to the audience. But there
is no evidence that school officials endorsed or
encouraged this or any other religious activity during the
graduation. This distinguishes the two cases on which the
plaintiffs mainly rely, both of which involved school-
sanctioned prayer at public school events. In Santa Fe
Independent School District v. Doe, 530 U.S. 290, 305, 308
(2000), the Supreme Court termed such prayer an “actual
endorsement of religion”—“a public expression of the
views of the majority of the student body delivered with the
approval of the school administration.” And in Lee v.
Weisman, supra, 505 U.S. at 588, it termed such prayer “an
overt religious exercise in a secondary school environment.”
Religious décor would be inappropriate in a public
school classroom—it would signal an “actual endorse-
ment of religion.” But the auditorium of Elmbrook Church
is no more a classroom than the National Cathedral in
Washington is when public school students are taken on
a tour of it. Nor is this a case in which a public school
No. 10-2922 75
district, pleading poverty, sells its schools and rents a
church building in which to hold classes; again the ap-
pearance of endorsement would be inescapable. The
difference between a public school’s using a church two
or three hours a year and its using it a thousand-odd
hours a year is one of degree rather than of kind, but
differences of degree are inescapable grounds of legal
distinctions. “I am the last man in the world to quarrel with
a distinction simply because it is one of degree. Most
distinctions, in my opinion, are of that sort, and are none
the worse for it.” Haddock v. Haddock, 201 U.S. 562, 631
(1906) (Holmes, J., dissenting). “Here, indeed, as so often
in other branches of the law, the decisive distinctions
are those of degree and not of kind.” Welch v. Helvering,
290 U.S. 111, 114 (1933) (Cardozo, J.).
It will not do to equate school activity at a church to
church activities at a public school. The religion-in-school
cases, such as Stone v. Graham, 449 U.S. 39 (1980) (per
curiam), cited by the majority, held that the establish-
ment clause had been violated because the government
was trying to induce kids to engage in religious activity,
and that isn’t alleged in our case.
The plaintiffs argue that by picking a church for gradua-
tion ceremonies, the school, even if unintentionally, was
aiding religion in general and the church’s sect
(Evangelical Protestantism) in particular, and that any
governmental aid to religion is unconstitutional. But by
this token providing police and fire protection for
churches is unconstitutional, along with exempting them
(as not-for-profit institutions) from property taxes, an
76 No. 10-2922
exemption upheld against a challenge based on the estab-
lishment clause in Walz v. Tax Commission, 397 U.S. 664(1970). And by that same token a government agency’s
buying Gewürztraminer produced at the Klosterneuburg
Monastery in Austria, Slivovitz produced at the Troyan
Monastery in Bulgaria, or Chimay produced by Trappist
monks, is unconstitutional, as placing a stamp of gov-
ernment approval on a religious product.
True, in these instances the government is simply
treating religious property owners like their closest
secular counterparts. But the same is true of allowing them
to rent space to government enterprises, such as public
schools. Churches typically are fully utilized on only one
day of the week (apart from religious holidays), and
private organizations that have unused space often rent
the space to public as well as private bodies. Among
these organizations are churches, which commonly rent
space to government for polling places in elections—a
practice the courts have upheld, Otero v. State Election
Board, 975 F.2d 738, 740-41 (10th Cir. 1992); see also
Berman v. Board of Elections, 420 F.2d 684 (2d Cir. 1969) (per
curiam), even though it puts the prospective voter to a
choice between entering a church and giving up his right
to vote, unless permitted to vote by absentee ballot. One
church, and it is doubtless not alone, “has permitted
others to use its facilities for non-religious purposes over
the years, including for polling stations, government
food distribution programs, town meetings, Alcoholics
Anonymous meetings, Harvest Festival activities, water
department meetings, and a senior lunch program.” Guatay
Christian Fellowship v. County of San Diego, 670 F.3d 957,
962 (9th Cir. 2011).
No. 10-2922 77
But could it be that the cross and the banners and other
religious paraphernalia visible to occupants of the audito-
rium of the Elmbrook Church would predispose
attendants at the graduation to join the church, thus
giving the evangelical sect that owns it a competitive
advantage? And might not the conferral of such an ad-
vantage be thought a form of establishment? But the
plaintiffs find the church offensive, and are thus in no
danger of being converted. There is no suggestion that
holding a high-school graduation at the Elmbrook
Church has ever triggered a conversion.
How often are visitors to churches converted by the
visit? Conversion generally precedes attendance. How
many of the millions of non-Catholic visitors to St. Pe-
ter’s—Protestants, Jews, Muslims, Hindus, Buddhists,
atheists, and so forth—have converted to Catholicism as a
result of their visit to that awesome site? I mean no disre-
spect to the Elmbrook Church in pointing out that no
counterpart to the treasures of St. Peter’s that include
Bernini’s baldacchino and Michelangelo’s Pietà, the tombs
of 91 Popes, a fragment of the True Cross, and the spear
that pierced Christ’s side at the Crucifixion (of course
the authenticity of the last two items has been ques-
tioned), is to be found there.
The plaintiffs argue that by holding its graduation
ceremony in a church festooned with religious symbols,
Broomfield High is “coercing students and parents to
attend a house of worship.” “Coercing?” That is hyperbole.
Attendance at graduation isn’t compulsory, graduation is
not a “coerced activity,” and a student who attends gradua-
78 No. 10-2922
tion in Elmbrook Church no more attends a religious
ceremony than the cleaning crew when it sweeps the
church’s aisles. When the Supreme Court said in Lee v.
Weisman, supra, 505 U.S. at 586, 595, in florid hyperbole
that “attendance and participation in the [graduation
ceremony] are in a fair and real sense obligatory, though
the school district does not require attendance as a condi-
tion for receipt of the diploma,” as “it is apparent that
a student is not free to absent herself from the gradua-
tion exercise in any real sense of the term ‘voluntary,’
for absence would require forfeiture of those intangible
benefits which have motivated the student through
youth and all her high school years,” it was whistling in
the dark.
The plaintiffs say the church is “using its control over
the environment of the graduation ceremonies to expose
thousands of attendees per year—including numerous
youths—to its religious message.” There is nothing to
suggest that the church enhances the religiosity of its
interior décor for the graduation. The interior is what it
is. A church that rents space to a secular organization
shouldn’t be required to pretend it isn’t a church.
The reductio ad absurdum is the plaintiffs’ complaint, as
unrealistic about the modern American high schooler as
the Supreme Court in Lee v. Waisman, that when the stu-
dents sit down in the church pews for the graduation
ceremony, church literature visible to them in the book
racks on the backs of the pews in front of them tells
them they’re “God’s Little Lambs,” and thoughtfully
provides them with a “Scribble Card for God’s Little
No. 10-2922 79
Lambs” and a pencil to scribble with, and thus tries
to seduce them to Evangelical Protestantism. Imagine
how 18-year-olds react to being called little lambs! True,
the family members who attend the graduation may
include children, but in no sense are they coerced by the
school to attend the graduation.
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. Religion is for good or ill a large component
of human culture, including American culture. Religious
words and symbols are ubiquitous. I have heard oral
argument in this court on more than a thousand
occasions, and every session has begun with a member of
the court’s staff intoning “God save the United States and
this honorable court.” Should this outcry, or the religious
paintings in the National Gallery in Washington (another
federal facility), seen over time by millions, be considered
an establishment of religion? Does it send trial lawyers
running to the baptismal font? The court crier’s phrase, if
thought anything other than a fossil trace of a more unself-
consciously Christian era in the nation’s history, can’t be
interpreted as anything other than a governmental ex-
pression of belief in one God who influences the fortunes
of our nation and may even if properly appealed to
protect the United States Court of Appeals for the Seventh
Circuit. It is explicitly religious, but it is also innocuous.
The interior of the Elmbrook Church, perhaps the very
idea of a church, offends the plaintiffs. But offense can’t
be the criterion for an establishment of religion; if it were,
80 No. 10-2922
no challenge based on the establishment clause would
ever fail, for those challenges are invariably mounted by
people offended by the government’s association with
religion. So performance of a blasphemous play in a
public university’s theater, upheld in Linnemeir v. Board of
Trustees of Purdue University, 260 F.3d 757 (7th Cir. 2001),
would be held to violate the establishment clause by
associating government with antireligious expression
that offends devout Christians. Hypersensitivity is not
a First Amendment principle.
But de minimis non curat lex is. Brandt v. Board of
Education, 480 F.3d 460, 465 (7th Cir. 2007), citing Ingraham
v. Wright, 430 U.S. 651, 674 (1977). As the Supreme
Court has explained, “The First Amendment does not
prohibit practices which by any realistic measure create
none of the dangers which it is designed to prevent and
which do not so directly or substantially involve the
state in religious exercises or in the favoring of religion
as to have meaningful and practical impact. It is of
course true that great consequences can grow from
small beginnings, but the measure of constitutional ad-
judication is the ability and willingness to distinguish
between real threat and mere shadow.” Lee v. Weisman,
supra, 505 U.S. at 598, quoting School District of Abington
Township v. Schempp, 374 U.S. 203, 308 (1963) (concurring
opinion). This is a bit of common sense to set against
the Court’s ode to high school graduation.
The likely effects of today’s decision will be, first, to
confirm the view of many religious Americans that
the courts are hostile to religion; second, to infuriate
No. 10-2922 81
students and their families by depriving them of the best
site for their high school graduation (the school district
in this case has built a new building that will house
future graduation ceremonies, but any other public
schools in the Seventh Circuit that hold their graduation
ceremonies in churches will have to scramble for alterna-
tive sites); and third, to initiate what federal law does
not need: a jurisprudence of permissible versus imper-
missible rentals of church space to public schools
and other public entities. The majority opinion leaves
open the possibility that if the high school burned down
and the church were the only feasible site for holding
classes while the school was out of commission, such a
public use of religious property would be permissible.
An emergency exception to the rule laid down today is
appropriate, but the list of exceptions won’t end there.
What if the school didn’t burn down but only the
gym, and what if, thinking their principal competitor,
Elmbrook Church, had been eliminated from considera-
tion as the substitute venue for the graduation, the
owners of alternative venues raised their rental price
and the church responded by lowering its price? Could
the high school then, in this period of diminished public
school budgets, plead economic necessity for continuing
to hold its graduation ceremony in the church?
And what if Elmbrook Church were not Evangeli-
cal—were instead a New England Congregational church,
which often has no cross on the outside and meager
religious imagery inside; for there is an iconoclastic
streak in Protestantism, though not in Elmbrook Church
any more than in the great Anglican cathedrals. Would
82 No. 10-2922
that change the outcome of this case? The majority,
having stated at the outset that the case must be decided
by reference to “the set of facts before us” (though its
conception of facts is not mine: I don’t think such state-
ments as “endorsement is intrinsically coercive” are
factual, or even meaningful) and not on the basis of a rule,
emphasizes what the fastidious might regard as the over-
blown character of the Elmbrook Church’s religious
imagery, in concluding that a public school cannot hold
a graduation there. The opinion provides a virtual inven-
tory of the religious objects in the church. If such details
of a church’s interior thus have dispositive constitutional
significance, we shall in future cases have to assess the
iconography of the churches that compete to rent space
to a school or other public body, including an election
board. (On the majority’s view, could the auditorium of
Elmbrook Church be used as a polling place? Since 18-year-
olds have a constitutional right to vote, many voters
are no older than graduating high school seniors.) All
other objections to one side, a jurisprudence of church
furnishings (“requiring scrutiny more commonly associ-
ated with interior decorators than with the judiciary,”
American Jewish Congress v. City of Chicago, 827 F.2d 120,
129 (7th Cir. 1987) (dissenting opinion)), inevitably
favoring iconoclastic churches, would be inconsistent
with governmental neutrality among sects.
And finally, returning to an earlier point, isn’t it about
time that constitutional cases were decided on the basis of
evidence rather than conjecture (“everyone knows”) and
doubtless in many cases bias? Is there any evidence, as
distinct from conjecture and intuition, that the exposure
No. 10-2922 83
of high school students to the interior of a church—
any church—has any effect on religious beliefs or obser-
vances? The great David Hume favored established
churches on the ground that monopoly breeds indolence,
and so an established church would dampen religious
strife. Until the Schempp decision in 1963 prayer was
common in public schools in many parts of this country,
yet religion had less salience in the public sphere than it
has today. Separation rulings by the Supreme Court seem
only to stimulate religious fervor. Religions thrive on
persecution, real or imagined. Where would Christianity
be without its martyrs? The real winner of this case is
likely to be—Elmbrook Church.
7-23-12