Constitutional law - state-funded use of religious facilities for public high school ceremonies violates the establishment clause.

• Author: Salvaggio, Kristen
• Position: Case note

Constitutional Law--State-Funded Use of Religious Facilities for Public High School Ceremonies Violates the Establishment Clause--Doe ex rel. Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir.), petition for cert. filed, 81 U.S.L.W. 3371 (U.S. Dec. 20, 2012) (No. 12-755)

The First Amendment to the United States Constitution embodies one of the country's founding principles--separation of church and state--by prohibiting Congress from enacting laws that either respect a religious establishment or prohibit the people's free exercise of religion. (1) Analysis of issues arising under violation of the Establishment Clause consists of numerous, competing tests presented by the Supreme Court. (2) In Doe ex rel. Doe v. Elmbrook School District, (3) the Seventh Circuit considered two such tests and held that an unacceptable amount of religious endorsement and coercion occurred when high school graduation ceremonies were held inside a church. (4)

Elmbrook is a municipal entity with two major public high schools, Brookfield Central and Brookfield East. (5) In 1999, Brookfield Central seniors requested the school's graduation ceremony in 2000 be moved from the school gymnasium, which lacked air conditioning and comfortable seating, to Elmbrook Church. (6) The request was permitted by the District Superintendent and the School Board President, both of whom were members of the church. (7) Brookfield East followed a similar process two years later, and for approximately a decade both schools held their graduation ceremonies in the "auditorium/sanctuary" of Elmbrook Church. (8) Approximately fifteen locations were suggested as sites for the schools' graduation ceremonies, all but two of which were entirely secular; nevertheless, each year the church remained the students' preferred location. (9) In response to criticism, the Superintendent noted that the District intended to relocate the ceremonies to the schools' gymnasiums after renovations were complete. (10)

Elmbrook Church is a Christian evangelical and nondenominational institution with an atmosphere that is "indisputably and emphatically Christian." (11) The church refused requests to veil a fifteen-to-twenty-foot cross dominating the sanctuary, and religious materials such as bibles, hymnal books, and donation envelopes remained in place during the graduation ceremonies. (12) During at least the 2002 and 2009 graduation ceremonies, information booths containing religious literature were manned by church members. (13)

Plaintiff Does consist of former and present students and their parents who have attended and plan to attend graduation ceremonies at Elmbrook Church. (14) Four of the Does pay property taxes to the District; in turn, the District pays the rental fees for the schools' use of Elmbrook Church for graduation ceremonies. (15) The Does indicated that they "felt uncomfortable, upset, offended, unwelcome, and/or angry" in attending graduation ceremonies at the church. (16) They brought suit to challenge use of the church on four grounds, each relating to a distinct Establishment Clause test. (17) The four grounds were: religious coercion; governmental endorsement of religion; excessive entanglement between government and religion; and impermissible use of taxpayer funds to promote religion. (18)

The First Amendment begins with the language "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." (19) The views of several historical figures have been utilized by courts in determining the Framers' intent at the drafting of the First Amendment in an attempt to resolve the tension between the two contained clauses, the protection of religion and the protection from religion. (20) The Framers, however, did not all share the same concerns regarding religion and the role of government, sparking criticism for this approach. (21) Among the issues arising out of the uncertainty behind the Framers' intent is whether the First Amendment should even be applied to the states, a question that, although resolved for over sixty years, remains in debate. (22) In Everson v. Board of Education, (23) the Supreme Court sought to establish what, at a minimum, the Establishment Clause means through historical analysis, while incorporating it through the Fourteenth Amendment for application to the states. (24) Approximately twenty years later, the Supreme Court retreated from the strict separationist approach in Everson, and emphasized a more neutral approach with "room for play" depending on fact-specific inquiries. (25)

In an attempt to unify the analysis criteria for Establishment Clause violations, the Supreme Court in Lemon v. Kurtzman (26) set out a test, whereby government activity is deemed a violation if it fails to meet any one of the following three prongs: it must have a secular purpose; its principal or primary effect must be one that neither advances nor inhibits religion; and it must not foster an excessive government entanglement with religion. (27) Nevertheless, application of the Lemon test is inconsistent and sometimes ignored. (28) In Lynch v. Donnelly, the Supreme Court briefly referred to the test before immediately dismissing it by saying "we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area." (29)

Following Lynch, the Supreme Court continued to move away from the Lemon test and focused on the coercive effect of religious activity in cases involving public-school children. (30) In Lee v. Weisman, the Supreme Court ruled that recitation of prayers at a public-school graduation ceremony violates the First Amendment. (31) The Court reasoned that, while attendance at graduation ceremonies is technically optional, students are not presented with a "real choice" to avoid such an important occasion so as to avoid participating in prayer. (32) The Court echoed the same reasoning in Santa Fe Independent School District v. Doe, where it determined that delivery of prayers before high school football games is also a First Amendment violation, and that public high school games are events at which individuals should not be subject to a "choice" between not attending and facing "personally offensive religious rituals." (33) The coercion test shows particular sensitivity toward protecting students not included within the religious majority from coerced participation in religious activities; however, the approach has been criticized for inhibiting communities' ability to choose policies and practices. (34)

In Elmbrook, the Seventh Circuit attempted to provide some structure to the existing Establishment Clause framework before proceeding...