News and Notes: July 2014

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Head shot of George, smiling in jacket and tie.

By George Kane

In the June issue, this column reported with alarm the U.S. Supreme Court’s decision in the case Township of Greece v. Galloway, which did more to undermine the Establishment Clause than any previous decision. This month, surprising good news came from the Court: it denied certiorari to an appeal of a ruling that the Elmbrook School District may not hold high school graduation ceremonies in a church. Justice Antonin Scalia issued a scathing dissent, however, that revealed his blueprint for rendering the Establishment Clause meaningless and effectively demolishing the wall of separation between church and state.

The school district in Wisconsin’s Waukesha County had for many years held the ceremonies in the school’s gymnasium in a suburb of Milwaukee, but received complaints that the venue was too small and uncomfortable. They moved them to the expansive sanctuary of Elmbrook Church in Brookfield, an unmistakably religious venue, dominated by a cross, with bibles and prayer books in the pews where the graduation audience sits. In 2009, Americans United for Separation of Church and State issued suit, claiming that the practice violated the Establishment Clause of the First Amendment to the United States Constitution. AU lost at federal district court and in an appeal to a three judge panel of the Seventh Circuit Court of Appeals, but prevailed in 2012 before the full Seventh Circuit Court. The school district appealed to the Supreme Court, which considered the case in ten separate sessions since issuing the Greece v. Galloway decision. In mid-June, the Court at last closed the case with a single-sentence decision: “The petition for a writ of certiorari is denied.”

Scalia, however, issued a seven page dissent, with the concurrence of Justice Clarence Thomas. Scalia maintained that the decision by the Seventh Circuit Court had been obsoleted by the Greece v. Galloway decision. Quoting from it, Scalia wrote that it “left no doubt that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’” … Moreover, “if there is any inconsistency between [a ‘test’ set out in the opinions of this Court] and … historic practice …, the inconsistency calls into question the validity of the test, not the historic practice.”

This is positively perverse. An action cannot violate the Establishment Clause if it has been validated by history – that is, if it had been done before. This analytical tool would be incapable of considering how many times the action had been considered and rejected, because it violated the separation of church and state. It excludes from consideration all of the times that a government action was stopped because a court ruled that it represented an Establishment Clause violation. Those decisions are all rendered moot by Greece v. Galloway, so nothing that followed from them can be counted as “history” or “tradition.”

It is readily evident that the justification from history will invalidate every test for Establishment Clause violations – the neutrality test and the Lemon test are just as untenable as the endorsement test. Scalia holds that the only permissible test is coercion, but he limits this so much as to make it trivial. The coercion of community action or peer pressure does not count. Scalia quotes as prevailing his own dissent in the 1992 Lee v. Weisman case: “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” But it is not clear why even this test would stand against Scalia’s own analysis. If examples could be found in which government got away with such coercion, why would coercion not also be justified as traditional?

Actually, Scalia makes a convincing argument that, having ruled as it did in Greece, the Court must overturn Elmbrook. Surely, the four Justices who voted against Greece disagreed, but they must have been joined by two or three others. I presume that this is because they hold the view that school children are especially vulnerable and powerless against religious coercion.

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