U.S. Appeals Court Rules That Wisconsin District’s Graduation Ceremonies Inside a Christian Church Were Unconstitutional

This is big: The 7th U.S. Circuit Court of Appeals just ruled that a Wisconsin school district violated the First Amendment when it held its graduation ceremonies in a church.

The inside of Elmbrook Church

The backstory: Elmbrook School District in Brookfield, Wisconsin held its graduation ceremonies at Elmbrook Church (an evangelical, non-denominational Christian church) from 2000 to 2009. That’s not necessarily a Constitutional violation — sometimes, it’s the only available space in a community large enough to fit a lot of people… but that wasn’t the case in Brookfield, since other venues were available.

In addition, you would hope the school district made sure pro-Christian symbols and literature were minimized as much as possible. Again, that wasn’t the case. According to Americans United for Separation of Church and State:

At graduations, parents and children sit in pews filled with Bibles and hymnals, “Scribble Cards for God’s Little Lambs” and church promotional cards that ask them whether they “would like to know how to become a Christian.” The church’s lobby is filled with evangelical pamphlets and postings, many of which are aimed at children and teens.

So AU filed a lawsuit. Initially, a lower court said the district did nothing wrong. So the anonymous plaintiffs appealed to a three-judge panel at the Appellate Court.

In September of 2011, two of the three judges also found that the district did nothing wrong (PDF).

So the last option was to ask for an en banc review of the case by all the judges at the Appeals Court, including the three who had already heard the case. That motion was granted and that brings us to today.

The 10-judge panel ruled 7-3 against the district (PDF) — they were wrong to hold their graduation ceremonies inside that church.

Some excerpts from the ruling (which is worth reading in full):

Here, the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the District’s actions to withstand the strictures of the Establishment Clause.

The District admits that Church members manned information booths that contained religious literature during the 2009 graduation, and a DVD recording of the 2002 ceremony shows people staffing these tables. The District also admits that during the 2002 ceremony, “Church members passed out religious literature in the lobby” although neither the District nor the Does divulge further details about how the distribution took place or at whose behest. According to Doe 1, when he attended his older sibling’s graduation, “[m]embers of the church, instead of school officials, handed out graduation materials during the ceremony.”

We conclude that conducting a public school graduation ceremony in a church — one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries” — runs afoul of the First Amendment’s Establishment Clause as applied to the states via the Fourteenth Amendment’s Due Process Clause.

In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise-secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity.

True, the District did not itself adorn the Church with proselytizing materials, and a reasonable observer would be aware of this fact. But that same observer could reasonably conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith — despite the presence of children, the importance of the graduation ceremony, and, most importantly, the existence of other suitable graduation sites — if the District approved of the Church’s message.

Once the school district creates a captive audience, the coercive potential of endorsement can operate. When a student who holds minority (or no) religious beliefs observes classmates at a graduation event taking advantage of Elmbrook Church’s offerings or meditating on its symbols (or posing for pictures in front of them) or speaking with its staff members, “[t]he law of imitation operates”… and may create subtle pressure to honor the day in a similar manner… The only way for graduation attendees to avoid the dynamic is to leave the ceremony. That is a choice… the Establishment Clause does not force students to make.

My favorite part of the dissenting opinion may be where the judges try to argue that holding a graduation ceremony in a church isn’t coercive at all:

Elmbrook Church is full of religious symbols — but any space is full of symbols. Suppose the School District had rented the United Center, home of the Chicago Bulls and the Chicago Blackhawks. A larger-than-life statue of Michael Jordan stands outside; United Airlines’ logo is huge. No one would believe that the School District had established basketball as its official sport or United Airlines as its official air carrier, let alone sanctified Michael Jordan. And if the District had rented the ballroom at a Hilton hotel, this would not have endorsed the Hilton chain or ballroom dancing.

Of course, neither the United Center nor the Hilton chain makes it part of their mission to evangelize basketball or dancing… Evangelical Christians, on the other hand, want to make converts out of everybody.

AU argued this case from the beginning and they were thrilled at the victory:

“We applaud the court’s wise decision,” said the Rev. Barry W. Lynn, executive director of Americans United. “The decision makes clear to public schools that it’s not appropriate to hold graduation ceremonies in venues festooned with religious symbols.”

The district’s last option now is to ask the Supreme Court to overturn the ruling. I would hope, after all this unnecessary fighting (and waste of taxpayer money), they just accept the loss and move on.

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.

  • JohnK

    “I would hope, after all this unnecessary fighting (and waste of taxpayer money), they just accept the loss and move on.”
    Wait… AU filed a lawsuit, and lost.
    Then they filed an appeal… and lost again.
    Then they appealed again (The en banc review) and won.

    It’s AU who are on the offense, starting the fight, getting a ruling, not liking the ruling, going back to court again, losing again, going back to court again, finally winning. 

    Sounds to me like everyone wants to get their way.

    • Rover Serton

      John, As an atheist, I don’t want to be preached to to celebrate something I worked for and earned.  If you want to thank your god, fine.  Don’t force me to sit in a museum of your religious ilk to get what I have earned. 

    • http://www.facebook.com/profile.php?id=628665833 Bill Santagata

      The thing is that if the AU lost they would have had to pay legal fees from their own coffers. If the school district loses, they have to pay legal fees from taxpayer funded coffers.

    • Baby_Raptor

      If it was a right of yours that was being violated, you would be doing everything you could to make sure you got justice. And you’d scream persecution when someone called you a hypocrite just like you did these people. 

    • Patterrssonn

      “Starting the fight”? I see, so the district holding an evangelical graduation ceremony was kind of a preemptive defensive maneuver against the AU’s future lawsuit. Brilliant! Commit a crime and hope that it someone takes notice they’ll give up before it gets too far.

      It’s a shame the AU stuck it out till the end.

  • http://squeakysoapbox.com/ Rich Wilson

    One wonders how a case like this got as far as it did.  I wonder if AU’s arguments changed over the long history.  I would hope it wasn’t just who they argued to, but that they learned what facts best make up the argument.  How a case evolves would be a fascinating story on its own.

    (edit: I mean, “took as long as it did”).

    • Annie

       “How a case evolves would be a fascinating story on its own.”  I agree.  Also, it would be helpful information for other groups fighting similar law suits.

      • http://www.facebook.com/profile.php?id=628665833 Bill Santagata

        You can get a PACER account and read all the legal briefs filed for the cost of 10 cents per page.

  • Annie

     Hemant- the 2nd to last link (The 10-judge panel ruled 7-3 against the district (PDF)) doesn’t appear to be working for me.

    • http://www.patheos.com/blogs/friendlyatheist/ Hemant Mehta

      Fixed! Thanks.

      • Annie

         Thank you!

  • Thomas Farrell

    Does anybody know what “remedy” the court has ordered?

  • ortcutt

     Even if the School District does petition the Supreme Court for review, they are statistically-speaking very unlikely to get it.  The Supreme Court only takes 90-100 cases a year. 

    • Stev84

      I’d consider it likely that they would refuse cert because the topic of religion and prayer in school is pretty much settled legally. They’ve already ruled on similar cases.

  • Jeano

    There were other secular sites available. They chose an Evangelical Christian church, complete with proselytizing! 

  • Jbeschta

    I think the Board of Education should pay it out of their own pockets!!

  • Erp

    I suspect the school district will not appeal.  They no longer hold their graduation ceremonies in the church (starting in 2010) since they built a new ‘field house’ at one of their high schools.   The district also has a new superintendent as of July 1 (the previous one was a member of the church in question).

    The comments are mixed out there but  one parent pointed out her religious beliefs (some variant of Christian) meant she wouldn’t be able to attend a graduation ceremony under the conditions that existed (her church disagreed strongly with the church in question).  She was presumably not one of the parents in the case all of whom said they were non-Christian  (which likely means either Jewish [3 synagogues within 10 miles], UU [1 church in the town], or non-religious) though I can’t imagine Catholics being too happy and am a bit surprised none joined the lawsuit.


  • Guest

    Wow. So a school had their Graduation in a Church, so now they are being illegal and infringing on people’s right.s Seems more like a bunch of atheists being uppity because they don’t like the church too me. Whatever happened to tolerance in this country? Suddenly people being ANYWHERE affiliated with Christianity is a bad thing that deserve intolerance and bigotry from the other side. Great way to show moral fiber you atheists that have none. 

    • Knightyme

      Did you read the article?  Did you miss the many parts saying that the attendees were being preached too?

      One of the sentences to be found in the above article:
      “The District admits that Church members manned information booths that contained religious literature during the 2009 graduation …”

      The argument is not because it is in a church, it is because of the religious
      literature and bibles being put on the pews, the booths outside, church
      members inside actively handing out pamphlets not related to the
      school event, but as advertising for the church and ‘how to become christian’, ect.

      Now you might think this is a church, so it is fine.  But, the use was for a public school graduation event.  Lets move the event to say the town hall, would the ‘information’ booths, religious literature, ect be applicable there?

      No, of course not.  Why not?  Because it is not a religious event, so all religious items not affixed to the wall should have been removed.  If a church wants to be considered as a venue outside of religious uses, it must remove, and cover those items that are not a part of the event in question, as per customer wants and needs.

      Looking at the picture at the top of the screen, I would use that church, as it has plenty of seating, and I would assume parking.  It has what seems to be a decent audio/visual system.  All I would require is the large cross be covered, a beige cloth in front would be fine, religious documents at the front of the church could  stay where they are, similar to say a doctors surgery waiting room, but any on the seats removed.

      It was the extensive proselytization that is the problem, not that the building used is a church.

  • Angela

    Hemant.  My children go to school in the Elmbrook School District.  We just received a district-wide e-mail this past Friday (08/24/2012) that the District plans to appeal the case to the Supreme Court.  Even though they claim they have NO INTENTION of holding graduation ceremonies at Elmbrook Church at any point in the future (I don’t believe them).  They’re allotting some funding for this, and they’ve also rallied the wagons, apparently, and found some attorneys who are willing to work on this pro bono.  They claim it’s because they think it’s important to have the Supreme Court set a precedent on issues like these.

    What precendent is that?  The precedent that those of the country’s dominant religion are more than willing to trample over the rights and wishes of those who practice other religions, or no religion at all.

    Our district–no, our entire county–here is ultra-conservative and primarily Christian.  They do a good job of giving lip service to embracing diversity.  They came together to support the Sihk community after the Oak Creek shooting, but it reeked of “don’t hate these guys!  they aren’t Muslims!” as if it were still perfectly acceptable to hate Muslims.  Oh, except those two families of Muslims in our grade school…THEY’RE ok, you know, because they don’t hate America, although we wish they wouldn’t cover their heads because it makes us uncomfortable.

    I could go on and on about some of the hugely insensitive things people have said to me upon the rare occasion that I’ve let it be known that I’m an atheist.  Last winter, I applauded my children’s grade school for keeping the holiday sing-along multi-cultural and non-religious.  But I heard the woman sitting next to me mutter angrily about how they missed the entire point of the holiday by not including what HER religion considers to be the point.

    It’s pretty lonely being an atheist or non-Christian believer in this area.  I wish I could find out who the Does are in the above case so I could get a support group going.

    At any rate, I thought I would let you know that they are, literally, making a Federal case out of this.  Needless to say, I’m very disheartened.

  • http://squeakysoapbox.com/ Rich Wilson

    In case anyone wants to read the PDF of the decision, this link will work