The Supreme Court has denied cert in a case where the 7th Circuit Court of Appeals, in an en banc hearing, ruled 7-3 that a public school violated the Establishment Clause by holding graduation ceremonies in a church. But Justice Scalia, joined by Justice Thomas, wrote a rare dissent from the decision to hear the case (usually cert is denied without comment from the court).
Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. 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.
My own aversion cannot be imposed by law because of the First Amendment. Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.
This is the typical sophistry we have become accustomed to from Scalia. The First Amendment certainly favors the free exercise of religion, but that is a right of individuals and it has absolutely nothing to do with what a government agency, like a public school, can and can’t do. That is governed by the Establishment Clause. Scalia knows this, of course, just as he knows that his comparison to music is absurd because the constitution says nothing about a separation between music and state.
It is important to note that the 7th Circuit ruling did not rule that it’s always unconstitutional to hold a public school graduation ceremony in a church. The ruling was fact-specific.