"... to hold high-school graduation ceremonies in a particular church building because of that particular building’s 'proselytizing environment.'"There was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise....
Here's the opinion. In dissent, Judge Easterbrook says: "It is easier to justify graduation in a church than voting in a church." I agree. My voting place is in a church, and I don't think that should be allowed.
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.
So Judge Easterbrook agrees with me.
But acting inconsiderately toward persons whose sincere views disfavor conducting public business in religious venues differs from establishing a religion.
Now, Judge Posner — also dissenting — writes with confident expectation that the Supreme Court will pay attention:
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....
The text and history of the establishment clause provide no clue to whether a public high school (a virtually nonexistent institution in the eighteenth century) “establishes” religion when it holds its graduation ceremony in a church. The opaque phrase “respecting an establishment” casts no light on the question....
The students at Brookfield High overwhelmingly and emphatically deemed the school’s gym an inadequate 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....
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. Peter’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 disrespect 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 questioned), 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 graduation 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 condition for receipt of the diploma,” as “it is apparent that a student is not free to absent herself from the graduation 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 students 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 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....
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, 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.
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