It's a question the U.S. Supreme Court chose not to answer, announcing Monday it would not hear an appeal from the Elmbrook School District in Wisconsin of a court order banning the holding of its commencement ceremony in Elmbrook Church, home of an evangelical Christian congregation. The decision lets stand a 2012 ruling by the Seventh Circuit court of Appeals in Chicago that the arrangement established an unconstitutional "link" between church and state.
School administrators said they chose the church for the event because of its comfortable seats, air conditioning, and ample parking. But a 10-judge panel of the Seventh Circuit Court said the intent of the school officials was outweighed by the heavy presence of religious symbols in the church, including a large cross and the presence of Bibles and hymnals in the pews. Writing for the seven-judge majority, Judge Joel M. Flaum found "the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state."
The Supreme Court did not say why it would not take the case, but Justice Antonin Scalia, joined by Justice Clarence Thomas, filed a dissent saying the court should have either heard the appeal or remanded the case for reconsideration in light of last month's Supreme Court decision allowing prayers at town board meetings. Scalia gave a strong indication of how he would have voted on the case, saying he could understand how some attending a school graduation in a church might find the religious symbols offensive.
"I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky," he wrote. "And I, too, am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency." But, Scalia said, that does not make the intrusion a constitutional issue.
"It is perhaps the job of school officials to prevent hurt feelings at school events," he wrote. "But that is decidedly not the job of the Constitution."
Concerning religion, the First Amendment says only: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof..."
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Photo: U.S. Supreme Court building