WASHINGTON — The Supreme Court has declined to review a circuit court ruling that said it was unconstitutional for a suburban Milwaukee high school to rent a church auditorium for a graduation ceremony.
Almost six weeks after the court had said that even sectarian prayers at the start of a town council meeting were permissible, the justices issued a one-sentence statement Monday declining the chance to review Elmbrook School District v. Doe. Two justices, Antonin Scalia and Clarence Thomas, strongly dissented from the 7-2 decision against hearing the case.
"The case concerns the school district near the Milwaukee suburb of Brookfield, Wisconsin," the Reuters news agency reported. "The district says it moved graduation ceremonies to the nearby Elmbrook Church, a non-denominational evangelical Christian church, only because it was more a convenient location with more parking, comfortable seating and air conditioning."
Americans United for the Separation of Church and State sued the school district over the renting of a church auditorium for the graduation ceremony. Several anonymous plaintiffs said the "religious nature" of the building made them feel uncomfortable.
"At the graduations, students received their diplomas underneath an immense Christian cross. Parents and children sat in pews filled with Bibles and hymnals, 'Scribble Cards for God’s Little Lambs' and church promotional cards that asked them whether they 'would like to know how to become a Christian,’ ” an AU bulletin hailing the decision said. "The church’s lobby was filled with evangelical pamphlets and postings, many of which were aimed at children and teens."
According to Alex J. Luchenitser, Americans United’s associate legal director, "No student should ever be forced to choose between missing their own graduation and attending that seminal event in a proselytizing environment inundated with religious icons and exhortations."
Scalia disagreed: "In this case, it is beyond dispute that no religious exercise whatever occurred. At most, respondents complain that they took offense at being in a religious place," he wrote in a dissent.
And while Scalia could understand that holding a ceremony in a church might offend someone, "it parallels my own (attitude) toward the playing in public of rock music or Stravinsky," he wrote, noting that such offense doesn't rise to the standard of a constitutional establishment of religion.
"It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution," he added.
Veteran Supreme Court journalist Lyle Denniston, writing at the independent SCOTUSBlog, said the majority didn't explain why it was willing to let the lower court decision stand after earlier ruling prayers to open local government meetings are constitutional. But the decision did send a "fairly clear signal on Monday that its new willingness to allow more religion in public life probably does not mean that it will allow children to be exposed to more such symbolism when they don’t have a choice about it," Denniston wrote.
Ironically, the case as far as one of the high schools involved, is now moot. Luke Goodrich, deputy general counsel at the Becket Fund for Religious Liberty, which handled the case on behalf of the Elmwood district, said graduations are now held in a new, air conditioned and disability-friendly gym at the high school.
However, he added, the neighboring Mukwonago High School, whose facilities lacked the necessary air conditioning and other amenities, also retreated from renting the church auditorium. Instead, graduates and their families trek into Milwaukee to occupy a fraction of the 42,000 seats at Brewers Park, which normally hosts a Major League Baseball team's games. Goodrich said the high school now pays "three times the rental fee" it spent at the church where no evangelizing took place during graduation.
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