The good news is that the U.S. Supreme Court recently denied hearing an appeal of a lower court case - Doe v. Elmbrook School District - which effectively affirms separation of church and state principles in the public schools. The bad news is that Justice Scalia issued an alarming dissent which uses the Court’s already disturbing May 5th legislative prayer decision - Greece v. Galloway - to advance his longstanding constitutional world view against church-state separation.
The Seventh Circuit’s Elmbrook decision involved a school district’s use of a church for high school graduations ceremonies over nine years. Alternative secular locations were available, but the district superintendent, who is a member of the church, approved its use. During graduation ceremonies, the church refused to cover a 15-20 foot Latin Cross at the front of the sanctuary. Bibles and hymnal books remained in the pews. And the church lobby, which is the only route for visitors to the sanctuary and a natural congregating point, contained religious literature, much of which addressed children and teens, symbols, banners, and posters. The Seventh Circuit ruled that these circumstances constituted unconstitutional religious endorsement and coercion.
Justice Scalia’s application of the Greece decision in the public school context is akin to putting a square peg in a round hole. Greece involved a narrow, historically-based exception to the Establishment Clause for legislative prayer, which has no relevance beyond that context. But that fact did not get in the way of Scalia using the decision to issue a dissent promoting his view of the First Amendment’s Establishment Clause merely prohibiting an official state religion and government compelled worship.
According to Scalia, the Elmbrook decision required Supreme Court review for two main reasons. First, the Greece decision eliminated the important, decades-old endorsement test, which means that the Seventh’s Circuit’s conclusion about the school district endorsing religion is void. Second, the Seventh Circuit’s ruling on religious coercion is invalid because in his view Greece stands for the across-the-board principle that there cannot be religious coercion without state compelled religious worship, which did not occur in the Elmbrook case.
Advocates for separation of church and state greeted the Greece decision with deep trepidation. Its discrete ruling allows overtly sectarian prayers in one-faith tradition before local legislative bodies. As a result, community members seeking redress from such public bodies – particularly those in the religious minority - will likely feel pressure to participate in religious observances not of their own faith. Furthermore, the decision’s reasoning could be taken out of context and used beyond the narrow context of legislative prayer. Justice Scalia’s dissent justifies that fear. Although his dissent is not binding on any court, opponents of the separation principle will undoubtedly attempt to use it to forward their agenda in the public schools and beyond.