Today Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented from his colleagues’ refusal to grant cert. in Elmbrook School District v. Doe, a case in which the Seventh Circuit, en banc, ruled that the school district violated the Establishment Clause by holding high school graduation ceremonies in a church. Scalia argued that the Court’s recent decision in Town of Greece v. Galloway, which allowed prayer before town board meetings, conflicted with Elmbrook’s holding, and that the Court needed to say so one way or another. Scalia’s argument was not really about Galloway, however; it was just another replay of his dissenting opinion in the Court’s last high school graduation case, Lee v. Weisman.
Deborah Weisman complained that her school’s practice of inviting a rabbi to pray at her graduation ceremony violated the Establishment Clause. In that 1992 case we know that Justice Scalia came this close to victory on his vision of a religion-filled public square and a minimalist Establishment Clause. We learned from Justice Harry Blackmun’s papers that Justice Anthony Kennedy had originally planned to write a 5-4 decision upholding the graduation prayer in Weisman. Kennedy would have been joined by Justices Scalia and Thomas, along with Chief Justice Rehnquist and Justice White in the majority; Justices Blackmun, Stevens, O’Connor and Souter would have been dissenters. Then Kennedy famously wrote Blackmun a memo saying he had changed his mind. Instead of taking over the writing of the opinion, Blackmun shrewdly allowed Kennedy to lead the new majority, and Kennedy sensibly wrote that the graduation setting was coercive because the peer pressure to participate in the prayer “though subtle and indirect, can be as real as any overt compulsion.” The dissent fell to Justice Scalia, who complained that Kennedy’s opinion “invent[ed] a boundless, and boundlessly manipulable, test of psychological coercion” and was “conspicuously bereft of any reference to history.”
Kennedy and Scalia are still at odds over the coercion test; Scalia refused to join the part of Kennedy’s opinion in Galloway that relied upon it. Elmbrook is just another round in the coercion-test battle, and Scalia has lost all three rounds. As the majority in the Seventh Circuit held, Elmbrook follows from Weisman. Town of Greece doesn’t change that.
Nonetheless, Scalia’s Elmbrook dissent offered an odd way of distinguishing Weisman, noting that in Elmbrook “it is beyond dispute that no religious exercise whatever occurred. At most, [the students] complain that they took offense at being in a religious place.” Being uncomfortable, he concluded, does not state an Establishment Clause offense after Galloway.
But almost everyone agrees that Galloway was a case about its facts. Scalia’s glib conclusion about lack of religious exercise in Elmbrook ignores the facts. Both the exterior and the interior of the Elmbrook Church are full of Christian crosses and other symbols that greet the visitor from start to finish. The church refused a state request to cover the large Latin cross that dominated the sanctuary where the graduation was held. Throughout the graduation ceremony, the church lobby was full of volunteers with tables of evangelical literature aimed at teenagers. Religious signs and posters were everywhere.
These facts matter to the coercion analysis. First, proselytizing is among the most basic of religious exercises. To surround high school graduates with evangelizers as they participate in graduation is exactly the coercion—in this case, not very subtle–that Weisman targeted.
Second, religious symbols are significant and may coerce. Justice Scalia praised three Seventh Circuit judges—Ripple, Easterbrook, and Posner—for their “powerful dissents” in Elmbrook. Presumably he agrees with their conclusion that the “incidental presence of iconography” in Elmbrook Church was insignificant and uncoercive.
Justice Scalia is a Justice who loves history. How odd, therefore, that he praised the judges who selected the word “iconography” and then trivialized it. In past centuries, Christians fiercely debated whether gods should be imaged and icons venerated. The original Iconoclasts smashed images because they felt so strongly about their power.
Centuries later, religious images retain their power to coerce. So it is good for religious freedom that Weisman’s core survives in Elmbrook.