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 Shark and Shepherd.
Having served on the Wisconsin Supreme Court, I am often asked about which case was my favorite. It is always difficult to answer that question, because I liked many cases for a variety of different reasons. So I thought I would share my experience with three of them. I really enjoyed working on cases that took me into not only interesting research but other cultures. State v. Davids involved a Native American charged with the offense of fishing without a license. The real issue before the court was whether the Stockbridge-Munsee reservation, as its boundaries were defined by the Treaty of 1856, was diminished by federal legislation in 1871 and terminated by federal legislation in 1906, thereby placing the area encompassing Upper Gresham Pond under state jurisdiction and requiring all who fished there to have a valid state fishing license, including Bert Davids, an enrolled member of the Stockbridge-Munsee tribe. That case had me dusting off old treaties and historical writings (actually my law clerk, Kathleen Rinehart, did the dusting off of the books) to better understand the various different types of agreements between the federal government and particular tribes. It became a rewarding history lesson in Indian treaties and the reasons for those agreements. I could not write the opinion without better understanding what was happening in tribal politics at the time. It became a lovely and interesting history lesson in and of itself. The conclusion of the case was that Mr. Davids indeed needed a fishing license for Upper Gresham Pond.
(This is the second in a series of posts on Fairey v. Associated Press, a copyright infringement case filed in New York on Monday involving the Obama “Hope” poster at right. See the