Thursday, February 12, 2009

Graduation in churches?

When I was in first grade, there was a Lutheran church next to the Catholic school we attended. The nuns told us that it was the devil's workshop. I still remember standing across the street and trying to look inside. What was Satan up to in there?

Americans United has objected to the practice of several Wisconsin school districts to hold graduation at a local church. I have three reactions.

The first is that the fact that AU expends resources on an issue like this should reassure us that theocracy is a long way off.

Second, under existing law, AU may well be right. The Supreme Court has held that a bland nondenominational prayer at graduation violates the rights of those who do not wish to hear it. To listen to a state sponsored prayer as a condition of attending graduation constitutes, at least in the view of Justice Kennedy and four other justices in Lee v. Weisman , may be seen by a reasonable dissenter as participation in a religious exercise. It is certainly not inconceivable that entering a church could be seen as some sort of affirmation of its beliefs or, as Justice O'Connor would have put it, a dissenter might see the choice of Elmbrook Church as an endorsement of religion that makes here feel like a disfavored member of the political community. While I believe that Lee was wrongly decided, I think that there are still five votes for it on the Court and, of course, even justices who would not have joined Lee might be reluctant to overturn it.

On the other hand, perhaps Justice Kennedy would see this case differently. Perhaps entry into a church with religious symbols on display is not the same as standing or remaining silent during a prayer that is part of the graduation ceremony itself. That doesn't strike me as a particularly persuasive distinction but then I wasn't persuaded by Justice Kennedy's opinion in Lee so I may not be in the best position to plumb his thinking on the matter.

There is, incidentally, Wisconsin precedent on the matter. In State ex rel. Conway v. Joint School Board No. 6, a 1916 decision, the Wisconsin Supreme Court held that holding graduation ceremonies in a church does not violate Wisconsin's version of the religion clauses, Art. I, sec. 18 (which is worded differently than the federal provisions). Should this issue go to court, the United States Supreme Court's interpretation of the United States Constitution will take precedence.

Third, I think Conway is nevertheless instructive. As I have argued here, the (understandable) desire to protect dissenters from discomfort cannot be implemented neutrally. The Conway court seemed to recognize this when it said that "[t]he fact that certain persons desire to attend graduation exercises with their children, and that they say that being compelled to enter a church of a different denomination from that to which they belong is violative of their assured rights of conscience, does not make it so" - at least not in a way that the law must recognize. In attempting to do so, our current Establishment Clause jurisprudence is overly ambitious. As I argue in a forthcoming paper, because it is overly ambitious, it has become asymmetrical, i.e., it fails to protect religious dissenters from the comparable harm that arises from certain forms of secular speech and this infringes upon religious liberty in ways that ought to concern us. My solution is to both expand and contract the idea of nonestablishment. If the state must be sensitive to the claims of religious dissenters who believe they are coerced or made to feel disfavored by the state's secular messages, we cannot provide the type of exacting protection called for by Justice Kennedy's opinion in Lee.

Cross posted at Marquette University Law School Faculty Blog

7 comments:

John Foust said...

Imagine if a school decided to hold their graduation ceremony in their gym but decided to erect a large Cross on the wall behind the speaker's platform. In this case, I think we'd agree that this was a deliberate act by the school officials that would no doubt be an Establishment Clause violation. Yet when the school officials deliberately choose to move the ceremony to a church with a large Cross at the front of the room, you want to say it's not a violation. I think the school officials are responsible for making the choice either way.

And what if a school actually decided to hold graduation in the Devil's Workshop? I can imagine other situations where school officials should be just as sensitive to places that might violate their other policies. They wouldn't hold it in a hall with a 30-foot tobacco or alcohol advertisement, or in a political hall with a 30-foot Obama poster on the wall. They wouldn't hold it in a theater at a casino if we all had to walk past the gambling. They wouldn't hold it in a place with 30-foot Satanic symbols on the walls, would they? They wouldn't hold it in the Freethought Hall if it had a 30-foot "There is no God" banner, would they?

Of the many school officials that I've met and known, they're very sensitive to appearances. It's rare for them to be seen smoking or drinking in public, especially when students might be around. They don't make potentially controversial decisions unless they believe they have the backing of their peers and the school board.

Brian said...

What if there's a small town where the only indoor area large enough to accomodate the school officials, graduating class, and family members who wish to attend is a church? Many small towns have outdoor graduations on football fields, but if the weather is bad and the school's gym is too small to accomodate everyone, should you hold the ceremony in the church or should you have it in the gym and tell the students that there's only enough room for one or two guests per graduate?

John Foust said...

For example, New Berlin Eisenhower High School has 853 students, and they have a 99%+ graduation rate, so estimate about 200-210 per senior class. It's a combo middle-high school with about 1250 students total. Perhaps low-tax-loving citizens decided they shouldn't have a gym or theater capable of handling the crowd. On the other hand, their school web describes themselves as "upper-middle class" so you'd think they'd want a reasonable theater. In my small town, the graduating class is about 150 kids and our 996 seat theater handles it. Which small towns have churches that can hold 1,000 people but whose high school gym can't hold 1,000?

Brian said...

I wasn't talking about New Berlin Eisenhower, nor was I talking about the town in which you grew up. If you'll re-read my post, I said "What if there's a small town where the only indoor area large enough to accomodate the school officials, graduating class, and family members who wish to attend is a church?" The question was a hypothetical one, and it remains unanswered: do you turn away people who would like to see their loved ones graduate, or do you hold the ceremony in a church?

Dad29 said...

Foust's solution: build larger gymnasiums.

Deep thinking, John.../sarcasm

Dad29 said...

Foust's solution: build larger gymnasiums.

Deep thinking, John.../sarcasm

John Foust said...

Brian, your hypothetical seems a bit ridiculous to me. You suggest there's a town so small that the gym can't hold the crowd for the (large? small?) graduating class yet the community is capable of supporting a megachurch with a larger space. Gosh, what about all the small towns that don't have air-conditioned megachurches? Holding it outdoors with a pre-publicized rain date won't work? In the town where I grew up 25 years ago, they held it outdoors. Where I am now, they have what I described.

Dad29, perhaps I should stop being so dry. Here I thought my sarcasm in my remark about the tax savings from small gyms would be apparent. (You and I probably agree that a little in corpore sano doesn't require the Coliseum.) Eisenhower HS, as we can tell by its name, has been around a while. The theater seats 840 and the upper gym is capable of holding all 1,200+ students for all-school assemblies.

What really makes me chuckle here? The way school admins are deemed to be full of wisdom when they do something that promotes religion. One minute they're drunk on taxes and WEAC wine and partying with Heather's two mommies, the next they're not only full of common sense but legally correct. One minute they're wisely frugal for living with a gym that's too small for the student body, the next the parents need more comfy cushions to watch Buffy get her diploma.