Can a public high school hold its graduation ceremony in a local church?
The Supreme Court has been pondering that question in its private conference for six weeks, discussing whether to take up a Wisconsin case that could reset the line separating church and state.
Last year, the 7th Circuit Court of Appeals in Chicago ruled that the Elmbrook School District, near Milwaukee, violated the First Amendment and its ban on "an establishment of religion" by holding a high school graduation ceremony in the sanctuary of an evangelical Christian church.
The choice had been popular with students and school officials for a decade. The old high school gym was hot, cramped and uncomfortable, they said. The Elmbrook Church was modern, spacious and air-conditioned. But as the court noted, "towering over the graduation proceedings ... was a 15- to 20-foot-tall Latin cross, the pre-eminent symbol of Christianity."
That goes too far, the appeals court said, turning a public school ceremony into an "endorsement" of a particular religion.
Nine students and parents, all unnamed, sued the school district, saying they felt uncomfortable and offended by having graduation in an evangelical church. Christians should "stop and think about how it would feel if their high school graduation ceremonies were held in a Jewish temple or Muslim mosque, where diplomas were handed out beneath a looming Star of David or Islamic crescent," said Ayesha Khan, legal director for Americans United for Separation of Church and State, which represented the winning plaintiffs.
Since March 29, the justices have considered the Elmbrook case at their weekly conferences, but taken no action, raising the chances the appeal will be turned down.
If so, the 7th Circuit's decision will stand as a warning to school districts that they could be forced to pay damages and heavy court costs if they hold events in church buildings.
"You will see a wave of threat letters going out to school districts" if the appeal is turned down, predicted Luke Goodrich, a lawyer for the Becket Fund for Religious Liberty. Becket, national school groups, and lawyers for 15 states backed the school district's appeal to the Supreme Court. They said holding school events in church buildings is common around the country, and they argue that the mere presence of religious symbols does not "establish" an official religion.
"The Constitution does not require the government to treat churches as contaminated buildings that are uniquely unfit for public events," Goodrich said.
For more than two decades, Supreme Court justices have struggled to set rules for cases in which the government is sued for displaying religious symbols. Examples include a cross in a public square, a nativity scene during Christmastime or the Ten Commandments at county courthouses.
No clear rules have emerged, however. In 2005, the court was split over two cases challenging displays of the Ten Commandments. One was inside a Kentucky courthouse, the other a granite monument outside the Texas state Capitol. In a pair of 5-4 votes, the court approved the Texas monument, but not the Kentucky courthouse exhibit.
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Justice Stephen G. Breyer, who alone was in the majority in both cases, said the context counts. While the Kentucky posting was a new and controversial move to promote a religious message, the Texas monument had stood almost unnoticed for decades among other historic statues and memorials, he said.
Since then, the court has turned down a series of appeals in church-state cases, most of them backed by conservative advocacy groups.
Last week, in addition to the Elmbrook case, the court also was considering an appeal from the town of Greece, N.Y., near Rochester. The town was sued for opening most of its monthly meetings with a prayer from a Christian pastor.
The justices may announce their decision on the appeals when they meet today to issue decisions.