Six weeks ago the Supreme Court held in Town of Greece v. Galloway that sectarian prayers at local government meetings are constitutional, but, in his opinion for the majority, Justice Kennedy distinguished between meetings for grown-ups and school functions, making clear that an earlier ruling under which religious observances at a public school graduation were deemed to be impermissible still stands. The Court’s decision on Monday to deny certiorari in the case of a Wisconsin school district that had its practice of holding graduation in a church struck down by the Seventh Circuit as an unconstitutional endorsement of religion (Elmbrook School District v. Doe) means that, for the time being, public schools will not be subject to Town of Greece’s weaker, more permeable “wall of separation” under the Establishment Clause because students are impressionable and, as a captive audience, more susceptible to coercion by authority figures.
In his dissent from the Court’s denial of certiorari, Justice Scalia asserts that Town of Greece invalidated the endorsement standard once and for all, and, therefore, the Elmbrook School District’s petition to review the Seventh Circuit’s holding should have been granted. He also reiterated that offense is not coercion and likened the policy of forcing students to attend their graduation ceremonies in a religious setting to overhearing music you don’t like while riding public transportation.
Justice Thomas joined Justice Scalia’s dissent in the Elmbrook cert denial. Recall that in a separate concurrence in Town of Greece, Justice Thomas rejected the entire notion of the Establishment Clause applying to state and local governments, and even questioned whether it prohibits the federal government from establishing a national religion.
The Lemon test has apparently gasped its last breath, the endorsement test is endangered, and coercion may be the standard, but, for the Court’s conservatives, there appear to be few, if any, scenarios under which it actually exists. The continued refusal to recognize the very real specter of coercion, or to acknowledge any instances in which a governmental body sponsors and validates one particular religious philosophy above all others, indicates a desire to effectively do away with the Establishment Clause altogether through not-so-benign neglect. But, for now at least, there are some remaining circumstances under which the Establishment Clause will continue to be enforced.