Daniel D. Schick’s Keeping Up With The Principle Of Neutrality: Why Courts Should Not
Extend Elmbrook’s Mistaken
Establishment Clause Analysis * (Mississippi Law Journal, Vol. 84,
Forthcoming) reads like one more attempt by the Christian Right to its use of government
to advance religion. The case of Doe v. Elmbrook School District, 687
F.3d 840 (7th Cir. 2012) involves the school district’s holding a high school
graduation ceremony in the sanctuary of Elmbrook Church, a non-denominational
Christian church.
The sure giveaways that the article is biased in favor of government advancement of religion is when it tells us that government is “simply” utilizing a religious building to conduct a secular event and that the Pilgrims and Puritans came to America to escape repression in England. In the case of the former, the only simple thing about the case is that the use of churches for public school graduation ceremonies places students in a coercive religious environment with religious symbols and messages and conditions the government benefit of the graduation ceremony on attendance at a religious institution. (It also has the affect of government endorsement of religion and stigmatizes those students of differing faiths and nonbelievers.) In the latter situation, the article conveniently omits the fact that Pilgrims and Puritans in turn engaged in religious repression.
The article also fails to mention relevant history – that between the American Revolution and the early 1830s – the states disestablished religion. This, coupled with the ratification of the Bill of Rights, laid a solid foundation for the principle of separation of church and state espoused by Thomas Jefferson and James Madison.
The courts have not gone down a
slippery slope by using the Lemon, endorsement or coercion tests or the
neutrality principle to interpret the Establishment Clause. Rather, these tests, when properly used, allow the courts to faithfully apply the Establishment Clause to religion cases. The indisputable fact is that the Constitution gave our governments no role to play in the religious
sphere.
Schick, a May 2015 Juris Doctor
candidate at the University of Mississippi School of Law, argues for government
and religion working together in what he calls “a neutral and secular manner to
help further society.” This is code for allowing government to advance religion
by postulating a secular purpose to cover up the greater religious purpose and
effect.
Quite frankly, the Constitution
gave our governments no role to play in the religious sphere. If the churches want
to make their buildings available for graduation ceremonies, they must at
minimum sanitize them by removing or covering up religious symbols and messages.
Then, and only then, can a valid neutrality argument be made.
However, the churches aren’t willing
to play fair and be similarly situated with a secular buildings. Thus the Seventh
Circuit correctly found that the school district’s use Elmbrook Church’s
pervasively religious environment for a public high school graduation ceremony
violated the Establishment Clause.
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* Available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2394914.
