Nancy Knudtson v. Trempealeau County, Wisconsin ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3237
NANCY KNUDTSON,
Plaintiff-Appellant,
v.
COUNTY OF TREMPEALEAU, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18-cv-00354-wmc — William M. Conley, Judge.
____________________
ARGUED OCTOBER 2, 2020 — DECIDED DECEMBER 9, 2020
____________________
Before RIPPLE, KANNE, and HAMILTON, Circuit Judges.
RIPPLE, Circuit Judge. When his friend and mentor passed
away, Taavi McMahon, the District Attorney for Trempealeau
County, Wisconsin, decided to close his office for the day of
the funeral and encouraged his staff to attend the service. One
of those staff members, Nancy Knudtson, refused to attend
because she wanted to complete some work at the office. Mr.
McMahon took issue with Ms. Knudtson’s decision and both
dug in their heels for what became a bitter dispute.
2 No. 19-3237
Eventually, the County placed Ms. Knudtson on paid admin-
istrative leave in an effort to de-escalate the dispute. Later, the
County offered her another position at the same pay grade;
Ms. Knudtson declined the alternate position. Because the
County had no other available position, it then terminated her
employment.
Ms. Knudtson filed this action in the United States District
Court for the Western District of Wisconsin, alleging that Mr.
McMahon and Trempealeau County had violated the Estab-
lishment Clause because the funeral that she had refused to
1
attend took place at a church and involved a religious service.
In due course, Mr. McMahon and the County moved for sum-
mary judgment, and the district court granted the motion. Be-
cause the district court correctly determined that the guaran-
tees of the Establishment Clause were not violated by the ac-
tions of the defendants, we now affirm the judgment of the
district court.
I
BACKGROUND
At the time of her termination in March 2018, Ms. Knudt-
son had worked for the County for over forty-five years. Since
1990, she had been assigned to work in the District Attorney’s
Office. At first, she was a secretary and receptionist; then she
became a legal secretary, and finally, starting in 2013, she
worked as a paralegal/office manager.
For the final six years of Ms. Knudtson’s tenure in the Dis-
trict Attorney’s office, Mr. McMahon served as the District
1 The jurisdiction of the district court was predicated on 28 U.S.C. §§ 1331and 1443.
No. 19-3237 3
Attorney. In addition to Ms. Knudtson, two other county em-
ployees worked in the District Attorney’s office; Robin Leon-
ard served as the victim witness coordinator, and Carol Bet-
thauser served as a legal assistant. Although Ms. Knudtson
was a county employee, her written job description as a para-
legal and office manager stated that she worked under the di-
rection of the District Attorney.
The events that precipitated this case began in September
2017, when Gerald Fox, Mr. McMahon’s mentor and the Dis-
trict Attorney for Jackson County, Trempealeau’s neighbor-
ing county, passed away unexpectedly. Mr. Fox’s funeral was
scheduled for September 8 at a Methodist church. The day be-
fore, Mr. McMahon emailed his staff, informing them that he
planned to close his office on the day of Mr. Fox’s funeral so
that employees could attend the service. Mr. McMahon also
wrote, in part: “It is my preference that we all go to pay our
respects but I will not require attendance, I will only encour-
2
age it.”
A few hours after Mr. McMahon sent the email,
Ms. Knudtson responded that she and the other two
county-employed staff members in the DA’s office preferred
to work in the office rather than attend Mr. Fox’s funeral. She
explained that, under the County’s HR handbook, staff mem-
bers were required to use vacation time to attend the funeral.
She also noted that she was scheduled to meet with a law en-
forcement officer at the time of the funeral service to finish
work on a recently assigned criminal complaint.
2 R.45 ¶22.
4 No. 19-3237
Ms. Knudtson also informed Mr. McMahon that she planned
to attend Mr. Fox’s wake that evening.
In her deposition, Ms. Knudtson said that when she told
Mr. McMahon that she did not want to attend Mr. Fox’s fu-
neral, she did not know that the funeral would be a religious
service. She had learned from Mr. Fox’s obituary that he was
Methodist, but her decision not to attend Mr. Fox’s funeral
3
had nothing to do with its religious nature.
On the same day, September 7, Ms. Knudtson spoke with
Amy Spriggle, the County’s Human Resources Director.
Ms. Spriggle confirmed that if employees wished to attend
the funeral, they would have to take a vacation day; the
County’s rules require employees to use vacation time to at-
tend a funeral for anyone other than a close relative.
Ms. Spriggle then consulted the County Corporation Counsel,
Rick Niemeier, who in turn called Mr. McMahon and told him
that he must keep the District Attorney’s Office open to allow
staff to work. Mr. McMahon declined to follow Mr. Nie-
meier’s advice. In his view, it was unfair to require employees
to take vacation time in order to attend the funeral.
On the day of the funeral, Mr. McMahon gathered
Ms. Knudtson, Ms. Betthauser, and Ms. Leonard in a confer-
ence room and informed them that he still planned to close
the office for the funeral. Mr. McMahon told Ms. Betthauser
that if she was worried about the County’s requirement that
she take a vacation day to attend the funeral, he would pay
her out of his own pocket. Ms. Knudtson and Ms. Betthauser
3 The parties do not dispute that Mr. Fox’s funeral was held in a Methodist
church, that the service involved several scripture readings and religious
songs, and that a pastor led the services.
No. 19-3237 5
still wished to work rather than attend; Ms. Leonard agreed
to attend. Ms. Knudtson recounts that Mr. McMahon became
agitated. (It is disputed, but immaterial, exactly how agi-
tated.) Mr. McMahon then gave Ms. Knudtson and Ms. Bet-
thauser their options: (1) go to the funeral; (2) work from
home; or (3) take a vacation day. Ms. Betthauser became upset
and began to cry during this exchange with Mr. McMahon.
Ms. Knudtson left the conference room to find Ms. Sprig-
gle, the Human Resources Director. Ms. Knudtson and
Ms. Spriggle then walked back to the District Attorney’s of-
fice, where Ms. Spriggle told Mr. McMahon that he could not
force County staff to work from home. Eventually Ms. Bet-
thauser agreed to attend the funeral despite her earlier reluc-
tance. She testified in her deposition that she did not “want to
4
make any waves.”
Mr. McMahon then gave Ms. Knudtson three revised op-
tions: (1) attend the funeral; (2) work from home; or (3) take
leave. Ms. Spriggle, during her deposition, recalled the third
5
option as being a suspension. Ms. Spriggle informed
Mr. McMahon that the County did not have a work from
home policy, so the second option was essentially off the ta-
ble. Mr. McMahon took issue with Ms. Spriggle’s involve-
ment in his office’s affairs; the parties dispute whether
Mr. McMahon voiced his displeasure using profanity. En-
deavoring to de-escalate the situation, Ms. Knudtson left
Mr. McMahon’s office to take a walk around the County
building.
4 R.49 ¶52.
5 R.53 ¶55.
6 No. 19-3237
After Ms. Knudtson left the office, Mr. McMahon called
the building maintenance staff to have the lock on the main
office door changed. He next called the State’s information
technology department in Madison, Wisconsin, to freeze
Ms. Knudtson’s account and instructed that it was not to re-
activate her account until he told it to do so.
A short time after leaving Mr. McMahon’s office,
Ms. Knudtson went to the County’s human resources depart-
ment to speak with Ms. Spriggle and Mr. Niemeier. Ms. Sprig-
gle assured Ms. Knudtson that she had done nothing wrong
and that her job was not in jeopardy. Ms. Knudtson, in her
deposition, recalled that Ms. Spriggle and Mr. Niemeier
asked her whether she would consider attending the funeral,
6
and she reiterated her desire not to attend. Ms. Spriggle and
Mr. Niemeier then decided to send Ms. Knudtson home for
the day with full pay; Ms. Spriggle authorized Ms. Knudt-
son’s timesheet, which recorded Ms. Knudtson as working on
September 8. The County then placed Ms. Knudtson on paid
administrative leave until the situation stabilized.
On either Monday, September 11, or Tuesday, September
12 (during the week after the County placed Ms. Knudtson on
paid administrative leave), Ms. Spriggle informed
Mr. McMahon of Ms. Knudtson’s status. Then, on the day of
that conversation or the next, Mr. McMahon met with
Ms. Spriggle and Mr. Niemeier. During that meeting,
Ms. Spriggle told Mr. McMahon that the options he had pre-
sented to Ms. Knudtson on the day of the funeral had not been
feasible. Mr. McMahon then informed Ms. Spriggle that if Ms.
Knudtson returned to the office, it would not be as the office
6 R.19 at 30–31.
No. 19-3237 7
manager and mentioned possibly terminating her. Ms. Sprig-
gle left this conversation with the understanding that it would
be highly difficult for Ms. Knudtson to return to work with
Mr. McMahon. Later that week, Ms. Knudtson spoke to Ms.
Spriggle over the phone and reiterated her desire to return to
7
work as soon as possible.
On September 18, Ms. Spriggle arranged for a meeting
later in the week with Mr. McMahon, Ms. Knudtson, and
Mr. Niemeier to discuss Ms. Knudtson’s return to work. That
meeting took place on September 20. County Board Chairman
Dick Miller and Chairman of the Executive/Finance Commit-
tee Dick Frey also attended. Mr. McMahon did not attend, ap-
parently because he was hospitalized with chest pains.
A week later, Mr. McMahon sent a letter to Ms. Spriggle.
In the letter, Mr. McMahon wrote that Ms. Knudtson had
abandoned her job and that he had not heard from her since
the day of Mr. Fox’s funeral. Ms. Spriggle and Mr. Niemeier
then clarified with Mr. McMahon that Ms. Knudtson had not
abandoned her position; rather the County had placed her on
paid administrative leave until the dispute cooled down.
Mr. McMahon then conveyed that he was no longer inter-
ested in Ms. Knudtson’s returning to work in his office.
From September 2017 until her eventual termination,
Ms. Knudtson expressed a desire to return to work; she also
expressed, however, a desire to no longer work with
Mr. McMahon. In November 2017, the County Board
7 Whether the County had the authority to order Ms. Knudtson back to
work in the DA’s office is an unclear area of Wisconsin state law. Because
that legal ambiguity ultimately does not impact our decision in this case,
we have no reason to wade into the state law question.
8 No. 19-3237
attempted to facilitate another reconciliation between
Mr. McMahon and Ms. Knudtson, but Mr. McMahon reiter-
ated his belief that Ms. Knudtson’s return to the office would
not be feasible.
In January 2018, Ms. Spriggle contacted Ms. Knudtson
about a possible new position with the County. During a
closed-door session of the Executive/Finance Committee and
Personnel/Bargaining Committee, County Board members
discussed creating a new position for Ms. Knudtson. The idea
was to transfer some of the DA’s Office’s duties (certain work
on cases involving children in need of protective services or
termination of parental rights) to the Corporation Counsel’s
Office. Ms. Knudtson would work on the transferred cases in
the new position, which would be at the same pay grade as
her office manager position with the District Attorney’s Of-
8
fice. But, because the plan involved transferring duties out of
the DA’s office, a legal review and approval from other enti-
ties would be necessary.
At the meeting, Ms. Knudtson requested a description of
the new position, but the County told her that it did not yet
9
have a position description. The day after the meeting,
Ms. Knudtson told Ms. Spriggle that she would not accept the
new position without a job description. In Ms. Knudtson’s
8 R.44 ¶¶103–04.
9 In her deposition, Ms. Spriggle did not recall Ms. Knudtson requesting
a position description, but the differences in recollection are immaterial.
Ms. Spriggle also testified that she would “like to think” she would have
produced a job description if asked. R.16 at 25.
No. 19-3237 9
view, she could not accept without knowing what duties the
job entailed.
A few weeks later, on February 13, 2018, the County sent
Ms. Knudtson a letter terminating her effective March 9, 2018.
In part, the County wrote: “Trempealeau County has
attempted numerous times to resolve your employment
situation in the District Attorney’s Office. The County
attempted to return you to your position in the District
Attorney’s Office, however, … this has not been possible.”
The County then noted Ms. Knudtson’s decision to turn down
the potential new position: “The County also offered to create
a new position … in an attempt to allow you to continue your
employment with [the] County … . [Y]ou advised Ms.
Spriggle that you were not interested in the proposed new
position. Unfortunately, the County does not have an
10
equivalent position available for you.”
Ms. Knudtson then filed this action. Her complaint alleged
a violation of her rights under the Establishment Clause and
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
11
§ 215(a)(3). She brought no other federal claims and no state
claims.
Ms. Knudtson abandoned her FLSA claim at the summary
judgment stage and proceeded with her Establishment Clause
claim. The County and Mr. McMahon moved separately for
summary judgment; the district court granted the motions. In
its opinion, the district court rejected Ms. Knudtson’s Estab-
lishment Clause claim under both of her proposed theories—
10 R.49 ¶147.
11 R.3.
10 No. 19-3237
the coercion test and primary effect prong of the Lemon test.
With respect to the coercion argument, the district court took
the view that neither the County nor Mr. McMahon had co-
erced Ms. Knudtson to participate in a religious activity be-
cause, in the end, she had the choice of attending the funeral
or being placed on paid administrative leave and because she
never actually attended Mr. Fox’s service. The district court
also noted that Ms. Knudtson never objected on religious
grounds to attending the funeral. As for the primary effect ar-
gument under the Lemon test, the district court concluded that
Mr. McMahon’s and the County’s actions did not have the
primary effect of establishing or inhibiting religion.
Ms. Knudtson, the district court observed, refused to attend
the funeral simply because she wanted to work in the office
during the service. And Mr. McMahon wanted to close the of-
fice to honor his friend, not to advance or inhibit religion. No
reasonable observer, therefore, would understand the gov-
ernmental actions to be about religion. Therefore, the district
court held that, on both Establishment Clause theories,
Ms. Knudtson’s claim failed.
Upon the district court’s entry of a final judgment,
12
Ms. Knudtson timely filed this appeal.
II
DISCUSSION
We review a district court’s grant of summary judgment
de novo. Georgia-Pacific Consumer Prods. LP v. Kimberly-Clark
Corp., 647 F.3d 723, 727 (7th Cir. 2011). Summary judgment is
appropriate when “there is no genuine dispute as to any
12 Our jurisdiction is secure under 28 U.S.C. § 1291.
No. 19-3237 11
material fact and the movant is entitled to judgment as a mat-
ter of law.” Fed. R. Civ. P. 56(a). We must draw “all justifiable
inferences” in the nonmoving party’s favor. Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Establishment Clause of the First Amendment
provides that “Congress shall make no law respecting an
establishment of religion.” U.S. Const. amend. I. Its
protections also operate against state and municipal
governments. See Everson v. Bd. of Educ. of Ewing Twp., 330 U.S.
1, 14–18 (1947). The Supreme Court has articulated several
frameworks for evaluating Establishment Clause claims. Yet,
irrespective of which analytical framework applies, “the
touchstone for Establishment Clause challenges remains ‘the
principle that the First Amendment mandates government
neutrality between religion and religion, and between
religion and nonreligion.’” Doe ex rel. Doe v. Elmbrook Sch.
Dist., 687 F.3d 840, 850 (7th Cir. 2012) (en banc) (quoting
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860 (2005)). We
have noted frequently that Establishment Clause analysis
requires a fact-intensive and context-intensive inquiry. See,
e.g., id.Ms. Knudtson asks that we evaluate her claim under two
Establishment Clause frameworks: the coercion test and the
primary effect prong of the Lemon test. We therefore will ex-
amine the case under both of these frameworks.
A.
We turn first to the coercion test. This test “seeks to deter-
mine whether the government has applied coercive pressure
on an individual to support or participate in religion.” Id. It is
grounded in a pair of Supreme Court decisions: Lee v.
12 No. 19-3237
Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School
District v. Doe, 530 U.S. 290 (2000). In Lee, the Supreme Court
invalidated a public school district’s practice of including
benedictions at its middle and high school graduation cere-
monies. The Supreme Court noted that school officials exer-
cised a “high degree of control” over the ceremony. Lee, 505
U.S. at 597. The middle school principal in Lee decided to in-
clude an invocation and benediction in the graduation cere-
mony. Id. at 587. He also chose the rabbi to perform the invo-
cation and benediction. Consequently, the Supreme Court
concluded, the school district “in every practical sense com-
pelled attendance and participation in an explicit religious ex-
ercise at an event of singular importance to every student.” Id.
at 598.
In Santa Fe, the Supreme Court, following its precedent in
Lee, invalidated a school district’s policy that authorized
student-led prayer before high school football games. See 530
U.S. at 301. There, the Court observed that the “invocations
[were] authorized by a government policy and [took] place on
government property at government-sponsored school-
related events.” Id. at 302. The Court also rejected the school
district’s argument that the football games’ extracurricular
status meant there was no coercion for students to attend.
Some students—cheerleaders and members of the band—
were required to attend the games. And the Court observed
that the choice between taking part in the tradition of high
school football and avoiding “personally offensive religious
rituals is in no practical sense an easy one.” Id. at 312. The
Court ended its coercion test discussion by stating that “the
Constitution is abridged when the State affirmatively
sponsors the particular religious practice.” Id. at 313.
No. 19-3237 13
In Lee and Santa Fe, the religious activity or setting at issue
was fairly attributed to the government. The religious ele-
ment of the case was not mere happenstance. In Lee, the prin-
cipal chose to have an invocation and selected the rabbi to of-
fer a prayer. In Santa Fe, the school enacted a policy to facili-
tate the student-led prayer at football games. Similarly, in Doe
ex rel. Doe v. Elmbrook School District, 687 F.3d at 843, 855–56,
we held that a school district’s decision to book a church as its
graduation venue despite the danger of proselytization re-
sulted in impermissible coercion. Moreover, in all three cases,
the government took an affirmative step to involve religion in
an activity it pressured individuals to participate in or a set-
ting it pressured them to attend. See also Town of Greece, N.Y.
v. Galloway, 572 U.S. 565, 590 (2014) (opinion of Kennedy, J.)
(noting Lee’s emphasis on the school’s control over the con-
duct of the students and substance of the graduation cere-
mony). The connection between the governmental pressure
and the religious activity or setting must be tight enough that
the government can be said to have “affirmatively spon-
sor[ed] the particular religious practice” at issue. See Santa Fe,
530 U.S. at 313.
Although Lee and Santa Fe both involved religious coer-
cion at school, we have applied the coercion test in the em-
ployment context as well. In Venters v. City of Delphi, 123 F.3d
956, 970 (7th Cir. 1997), we held that a city police chief violated
the Establishment Clause when he pressured an employee to
“bring her thinking and her conduct into conformity with the
principles of his own religious beliefs” and threatened to ter-
minate her if she did not.
Other circuits also have addressed religious coercion in
the employment context, and their cases are illustrative of the
14 No. 19-3237
principle. In Warnock v. Archer, 380 F.3d 1076 (8th Cir. 2004),
our colleagues in the Eighth Circuit addressed an art
teacher/part-time bus driver’s challenge to a superintendent’s
prayer at mandatory faculty meetings and the display of
religious items in the superintendent’s office. It held that the
superintendent’s conduct violated the Establishment Clause
under the endorsement test, but not the coercion test. See id.
at 1080. In rejecting the coercion claim, the court noted that
the teacher’s relationship to the school was “contractual,”
unlike the inherently coercive nature of the schoolchildren-to-
school relationship seen in Lee and Santa Fe. In addition, the
court noted that the teacher was “clearly a strong-willed adult
who is unlikely to be indoctrinated by the religious activity of
his employer.” Id. The Sixth Circuit reached a similar holding
in Chaudhuri v. State of Tennessee, 130 F.3d 232 (6th Cir. 1997).
There, a professor at a state college challenged prayer at
certain university events, including commencement. The
Sixth Circuit held that there was no impermissible coercion
because the school did not require faculty attendance at the
events and, in any event, there was little risk that the Ph.D.-
credentialed professor would be susceptible to coercion in the
same way that schoolchildren were in Lee. See id. at 238–39.
On the other hand, in Marrero-Méndez v. Calixto-Rodríguez,
830 F.3d 38 (1st Cir. 2016), the First Circuit concluded that un-
lawful coercion had occurred. In that case, commanding offic-
ers in the Puerto Rico Police Department ordered an officer to
remain present during a group prayer and publicly chastised
him for being atheist. Id. at 41–42. The court held that the con-
siderable pressure to conform, the isolation the officer experi-
enced, and the demotion resulting from his complaint about
the incident constituted impermissible coercion. Id. at 44–45.
No. 19-3237 15
The context that we encounter here is quite different from
the cases in which our court and others have found govern-
ment conduct to be coercive. The County’s agents, Ms. Sprig-
gle and Mr. Niemeier, never pressured Ms. Knudtson to at-
tend the funeral. They asked at one point whether Ms. Knudt-
son would consider attending the funeral, but, when consid-
ered in context, that question was posed in a manner clearly
designed to cool off the increasingly heated dispute between
Mr. McMahon and Ms. Knudtson. The lack of coercion is
evinced in Ms. Spriggle and Mr. Niemeier’s support of
Ms. Knudtson’s decision not to attend. Ms. Knudtson’s even-
tual termination stemmed not from her refusal to attend the
funeral, but from her decision to decline the alternate position
the County offered, an offer that further shows that the
County did not exert impermissible pressure on Ms. Knudt-
son.
As for Mr. McMahon, even though his initial email sug-
gested attending the funeral was voluntary, his subsequent
demeanor toward Ms. Knudtson and Ms. Betthauser perhaps
suggested otherwise. Still, Mr. McMahon’s pressure on
Ms. Knudtson—though short of the temperament we hope to
see public officials display—is different in kind from that at
the heart of Lee and Santa Fe. Here, Mr. McMahon’s affirma-
tive decision was simply to close his office for the day of
Mr. Fox’s funeral. Mr. McMahon’s pressure on Ms. Knudtson
and Ms. Betthauser stemmed not from their refusal to attend
the funeral, but from their challenge to his authority to close
his office. That Mr. McMahon also voiced frustration with
Ms. Spriggle and Mr. Niemeier’s similar challenge to his au-
thority only confirms the conclusion that closing the office
was at the front of Mr. McMahon’s mind. Moreover, it is clear
that Mr. McMahon would have made the same decision to
16 No. 19-3237
close his office had Mr. Fox’s funeral been at a Baptist church,
a Catholic church, a Synagogue, a Mosque, or someplace en-
tirely secular. Mr. McMahon’s conduct was unrelated to the
religious nature of Mr. Fox’s funeral. He did not control or
choose the venue for Mr. Fox’s funeral. He also had no say
about the content of the funeral service. In short, that
Mr. Fox’s funeral took place at a Methodist church had noth-
ing to do with Mr. McMahon’s actions. Nor did Ms. Knudt-
son’s objection to attending have anything to do with the re-
ligious nature or venue of the ceremony. This case is an ordi-
nary employment dispute about business hours and leave; it
does not invoke the concerns central to the Establishment
Clause.
Our observation that the challenged religious activity
must be fairly attributed to the government does not mean the
government must act with a religious motive in order to fail
the coercion test. For example, the principal in Elmbrook chose
the church to host the school’s graduation because the
school’s gymnasium, a prior graduation venue, had a history
of uncomfortable seating and temperature. See 687 F.3d at 844.
Nothing in that case suggested that the principal acted with
the motive of exposing the schoolchildren to religion. Still, we
said that the principal’s decision to hold the graduation
ceremony—an event of immense importance to the
students—in an indisputably religious setting constituted
impermissible religious coercion. Yet, there, unlike here, the
government chose affirmatively to involve religion in the
mandatory graduation ceremony.
As we have said in the past, “before we can find that some-
thing runs afoul of the Establishment Clause, we must do
more than spot a single religious component of a challenged
No. 19-3237 17
activity, no matter how inconsequential.” Mayle v. United
States, 891 F.3d 680, 684 (7th Cir. 2018) (citing Lynch v. Don-
nelly, 465 U.S. 668, 680 (1984)). Context is key in ascertaining
whether the government has endorsed religion or preferred
one religion over another. See Santa Fe, 530 U.S. at 315. Here,
two factors are especially important to our holding that nei-
ther Mr. McMahon nor the County impermissibly coerced
Ms. Knudtson. First, Ms. Knudtson is an adult. Both Lee and
Santa Fe involved schoolchildren—primarily middle and high
school students. As the Supreme Court has emphasized, “ad-
olescents are often susceptible to pressure from their peers to-
wards conformity.” Lee, 505 U.S. at 593; see Santa Fe, 530 U.S.
at 311–12. We also have highlighted the “heightened” con-
cerns of coercion when young students are involved, particu-
larly when the students are a “captive audience.” See Freedom
from Religion Found., Inc. v. Concord Cmty. Schs., 885 F.3d 1038,
1048–49 (7th Cir. 2018) (citing Lee, 505 U.S. at 592). In other
cases, the Supreme Court has noted that adults are less sus-
ceptible to pressure. See Marsh v. Chambers, 463 U.S. 783, 792
(1983) (Adults are “presumably not readily susceptible to ‘re-
ligious indoctrination’ or peer pressure.” (internal citations
omitted)).
Second, this case involves a funeral. A sad, but ordinary,
part of being an adult in our society is attending funerals for
family, friends, neighbors, and coworkers. In our pluralistic
society, an individual inevitably will attend the funeral of
someone who chooses to mark the end of life in a manner dif-
ferent from one’s own traditions. Those in public life, or pub-
lic service as representatives of the community, probably en-
counter this situation more often than most of their fellow cit-
izens. In our contemporary American culture, funeral services
are, at least in part, different from other religious services. It
18 No. 19-3237
is common for members of many faiths, or no faith, to attend
funeral services. Funeral services offer an opportunity for
people to come together to remember and honor the de-
ceased. Absent extraordinary circumstances, Americans per-
ceive no threat of religious coercion when obligations of of-
fice, employment, or social relationships require attendance
at a religious funeral service. Such community participation
simply does not raise the degree of concern that accompanied
the practices in Lee or Santa Fe. Organizing a delegation from
a public office to attend a funeral normally raises no implica-
tion that the government, or any of its officials, endorse the
religion of the deceased person.
B.
Ms. Knudtson also invokes the Lemon test’s primary effect
analysis. In Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), the
Supreme Court held that government action violates the Es-
tablishment 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. Justice
O’Connor later wrote that Lemon’s primary effect prong
means that government may not communicate a message of
religious endorsement or disapproval. Lynch, 465 U.S. at 692(O’Connor, J., concurring). Justice O’Connor’s opinion in
Lynch—articulating the so-called “endorsement test”—is a
“legitimate part of Lemon’s second prong.” Elmbrook, 687 F.3d
at 850. “Under the ‘endorsement’ approach, that inquiry is de-
signed to show whether the government is pushing for the
adoption of a particular religion.” Mayle, 891 F.3d at 684. And,
critically, we apply the primary effect test—and the endorse-
ment articulation of that test—through the lens of an objec-
tively reasonable observer. Id.
No. 19-3237 19
Assessed under the endorsement test, Ms. Knudtson’s
claim again fails. No reasonable observer would conclude
that Mr. McMahon’s encouraging his staff to attend his men-
tor’s funeral was an endorsement of religion. As we have
noted earlier, considering the totality of the circumstances, it
is clear that religion did not play any role in Mr. McMahon’s
request for his staff to attend Mr. Fox’s funeral or in
Ms. Knudtson’s refusal to attend. A reasonable observer
would conclude that the encouragement to attend the funeral
was related to Mr. McMahon’s admiration for Mr. Fox, not a
13
stance on the religious aspects of the funeral service. Thus,
Ms. Knudtson’s Establishment Clause claim fails under the
endorsement test.
Conclusion
Under either of the analytical approaches proffered by
Ms. Knudtson, the same result obtains: there has been no vio-
lation of the Establishment Clause. The reason why
Ms. Knudtson’s claim fails, as the district court astutely real-
ized, is that religion played no part in Mr. McMahon’s en-
treaty to his staff to attend the funeral. At bottom, his dispute
with his staff, including Ms. Knudtson, was over the closure
of the office. The County’s agents never coerced Ms. Knudt-
son to attend the funeral and certainly never took any action
that implicated religion.
13 Cf. Milwaukee Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 527–29 (7th
Cir. 2009) (violation of Establishment Clause when Sherriff invited reli-
gious group to his office multiple times and allowed the group to convey
religious messages to the government-employed staff).
20 No. 19-3237
The district court correctly granted summary judgment to
the defendants; its judgment is affirmed.
AFFIRMED