WASHINGTON (CN) - To the chagrin of Justices Antonin Scalia and Clarence Thomas, the Supreme Court declined Monday to consider church-held graduation ceremonies.
The Elmbrook School District had held graduation ceremonies at Elmbrook Church, a nondenominational Christian parish in Brookfield, Wis., since 2000. The school district said it chose the building to provide comfort and space, not to promote Christianity.
Apparently the class of 2000 was the first to seek removal of the event from the school's "hot, cramped, and uncomfortable" gymnasium, suggesting the church as an alternative. After students raised part of the $2,000 rental fee, Superintendent Matt Gibson obliged. The students repeatedly voted to use the sanctuary, which, unlike the school's old gymnasium, offers amenities such as air conditioning, adequate and comfortable seating, and a large parking lot.
School officials preside over the ceremonies, which proceed on a dais in the main sanctuary.
The Christian atmosphere, complete with crosses and other religious symbols that decorate church grounds and the exterior building, however, prompted some complaints.
Though Gibson noted that a custodian "inadvertently" covered the large cross at the front of the building during that first commencement there, church officials subsequently refused requests to veil the cross in future events, citing a general church policy against covering its permanent religious displays.
Religious literature, including prayer books, fliers and membership forms, also permeate the pews and entrance hall.
School officials moved graduations to a newly constructed field house building in 2009, but Americans United for Separation of Church and State had already filed a complaint on behalf of nine pseudonymous individuals.
A federal judge sided with the school at summary judgment, and the 7th Circuit affirmed
, 2-1, in September 2011 that the use of rented church space was "neither impermissibly coercive nor an endorsement of religion."
After an en banc rehearing, the federal appeals court reversed
, 7-3, for the plaintiffs.
The Supreme Court refused to grant the school a writ of certiorari Monday, but Scalia called that move inconsistent in a brief dissent.
Just last month in Town of Greece v. Galloway
, the court found for a town in upstate New York that starts its monthly meetings with a prayer.
"Because that case made clear a number of points with which the Seventh Circuit's decision is fundamentally inconsistent, the court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration," Scalia wrote, joined by Justice Thomas.
Just as some are offended by public displays of religion, so too does Scalia abhor the intrusion of loud music "while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency," he said.
But "my own aversion cannot be imposed by law because of the First Amendment," Scalia added.
Either the 7th Circuit must conduct the historical inquiry that Town of Greece
, or the Supreme Court should have taken up that task itself, the dissent continues.
"It is perhaps the job of school officials to prevent hurt feelings at school events," Scalia wrote. 'But that is decidedly not the job of the Constitution. It may well be, as then-Chief Judge Easterbrook suggested, that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was 'unwise' and 'offensive.' But Town of Greece
makes manifest that an establishment of religion it was not."