John DOE, et al., Plaintiff-Appellants, v. ELMBROOK..., 2010 WL 6020474... 2010 WL 6020474 (C.A.7) (Appellate Brief) United States Court of Appeals, Seventh Circuit. John DOE, et al., Plaintiff-Appellants, v. ELMBROOK SCHOOL DISTRICT, Defendant-Appellee. No. 10-2922. November 29, 2010. On Appeal from the U. S. District Court for the Eastern District of Wisconsin No. 2:09-CV-00409-CNC Brief for the Alliance Defense Fund as Amicus Curiae in Support of Appellees Richard M. Esenberg, Counsel for Amicus Curiae, Alliance Defense Fund, 8900 N. Arbon Drive, Milwaukee, WI 53223, 414 973-3643 (phone), 414 355-6578 (fax). *i TABLE OF CONTENTS Table of Authorities ..................................................................................................................... Interest of Amicus Curiae ............................................................................................................ Summary of Argument ................................................................................................................. Argument ...................................................................................................................................... I. Graduation Ceremonies At The Church Do Not Endorse Religion .......................................... II. There is No Sense In Which Holding Graduation Ceremonies In The Elmbrook Church Constitutes A Religious Ceremony ............................................................................................... Conclusion .................................................................................................................................... *ii TABLE OF AUTHORITIES Board of School Commissioners v. Smith ................................................................ Counts v. Cedarville School District ........................................................................ County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter Edwards v. Aguillard ............................................................................................... Elk Grove Unified School District v. Newdow ......................................................... Freiler v. Tangipahoa Parish Board of Education .................................................... Kitzmiller v. Dover Area School District ................................................................. Lee v. Weisman, ...................................................................................................... Lemon v. Kurtzman ................................................................................................. Lynch v. Donnelly ................................................................................................... McCreary County v. American Civil Liberties Union of Kentucky ........................... Pleasant Grove City v. Summum ............................................................................. Salazar v. Buono ..................................................................................................... Selman v. Cobb County School District ................................................................... Van Order v. Perry ................................................................................................. Wallace v. Jaffree ................................................................................................... ii iii iv 1 1 5 8 6 6 1 1, 6 2 6 7 5 2 1, 2, 3 1, 2, 3 3, 5 2, 3 6 1, 3 1, 4 *III INTEREST OF AMICUS CURIAE Alliance Defense Fund (“ADF”) is a non-profit, religious liberties organization, devoted to the defense and advocacy of religious freedom. ADF pursues its goal of protecting religious liberty by providing strategic planning, training, and funding to attorneys and organizations regarding religious civil liberties. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 John DOE, et al., Plaintiff-Appellants, v. ELMBROOK..., 2010 WL 6020474... ADF and its allied organizations represent thousands of Americans who desire to resist the unnecessary and unconstitutional exclusion of religion from the public square and the corresponding messages of public secularity and hostility toward religion. While committed to the independence of church and state, ADF believes that an overly aggressive interpretation of the Establishment Clause tends to drive religion from public life and discourse and to ultimately inhibit the freedom of religious believers. ADF has advocated for the rights of Americans under the First Amendment in hundreds of significant cases throughout the United States, having been directly or indirectly involved in at least 500 cases and legal matters, including numerous religious expression and establishment cases before the United States Supreme Court. *iv SUMMARY OF ARGUMENT Cases involving passive displays of religious symbols are typically analyzed under some form of endorsement test or other analysis concerned with discerning the message of a governmental speaker. The United States Supreme Court has further made clear that a symbol or other form of communication on the part of the government may have multiple meanings including those not intended by the symbol's creator or the original author of the communication. In discerning the message of any state action, it is not proper to privilege that message which will create Establishment Clause concerns or that is likely to be the perception of the most sensitive members of the audience for the message. Rather courts are to posit an objective observer fully informed with respect to the constitutional values at stake and with respect to the context, background and purpose of the challenged action. For this reason, not all state messages containing religious content are constitutionally problematic. The Supreme Court has not required the extirpation of all religious references from public spaces and events and has, in fact, recognized that a rigid requirement of separation might result in a reasonable perception of a constitutionally impermissible hostility to religion. In this case, the record overwhelmingly demonstrates that the Elmbrook School District gave students the option of holding graduation ceremonies (and Senior Honors night) at the Elmbrook church (as well as other facilities) for nonreligious reasons, including its location, size, large video screens and air conditioning. In this context, a *v reasonable observer would know that the district was not adopting as its own the remaining religious messages or symbols located outside or within the church or endorsing any religion or religious sentiment. He or she would, to the contrary, understand that the district concluded that the church was a convenient and superior location for graduation. Simply entering a church for the purpose of attending a secular service is not tantamount to coerced participation in a religious ceremony. Nothing about the ceremony was religious. Although it is possible that some students might have religious objections to entering a church, it is, as noted above, the perceptions of the reasonable observer, and not the subjective religious sense of dissenters that controls Establishment Clause analysis. Some students may have religious objections to hearing certain claims regarding human sexuality or to sit silently while someone whom they believe to be guilty of immoral behavior is honored. It is well accepted that these students would not have an Establishment Clause claim. Neither do Appellants here. *1 ARGUMENT © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 John DOE, et al., Plaintiff-Appellants, v. ELMBROOK..., 2010 WL 6020474... I. Graduation Ceremonies At The Church Do Not Endorse Religion. As Appellees point out, the typical approach to a case of this type -- in which religious symbols are allegedly displayed in a manner that is claimed to result in government adopting the symbols in a way which advances religion or offends nonadherents -- would be through some type of endorsement analysis, or other inquiry into whether the state has sent a message and its nature. See, e.g., McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 868-74 (2005) (circumstances surrounding display of Ten Commandments and its evolution support finding that county's primary purpose was to endorse display's religious message); Van Orden v. Perry, 545 U.S. 677 (2005) (circumstances and evolution of Ten Commandments display supported finding of a secular purpose); Edwards v. Aguillard, 482 U.S. 578, 593 (1987) (act mandating “balanced treatment” of “creationism” endorses religion); Wallace v. Jaffree, 472 U.S. 60 (1985) (in context, requirement for “moment of silence” does the same); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (invalidating creche display at county courthouse after careful analysis of its context and the message conveyed); Lynch v. Donnelly, 465 U.S. 665 (1984) (rejecting challenge to municipal display of nativity scene after careful inquiry). The test of government speech's compliance with the Establishment Clause in the case of passive exposure to religious symbols, whether under the Supreme Court's on-again, *2 off again Lemon test 1 or Justice O'Connor's endorsement analysis, 2 has generally turned on discernment of the message that the government seeks to send or that it most reasonably perceived. Thus, most recently, in Salazar v. Buono, 103 S.Ct. 1803 (2010), the Court considered an act of Congress transferring government property, on which a cross long memorializing deceased veterans of the First World War had been found to violate the Establishment Clause, 3 to a private owner. Justice Kennedy, along with Chief Justice Roberts and Justice Alito, held that the transfer -- clearly undertaken to avoid removal of the cross -- was not necessarily an Establishment Clause violation. A reasonable observer could understand that the government was not endorsing Christianity but only acting to avoid an equally constitutionality problematic message of hostility toward religion that might stem from dismantling the cross after so many years. Id. at 1822-23 (Alito, I., concurring) These Justices found it in error for the district court to have concentrated “solely on the religious aspects of the cross, divorced from its background and context.” Id. at 1820. 4 A few years earlier, the Court (or at least Justice Breyer) distinguished nearly identical displays of the Ten Commandments in Kentucky and Texas by focusing on *3 how the history and context of each display affected the message conveyed by each. Compare McCreary, supra, 545 U.S. at 868-87) with Van Orden, supra. As noted earlier, other cases involving state sponsored religious symbolism have also turned on the nature of the message conveyed. In analyzing the message conveyed here, three things ought to be kept in mind. First, express government adoption of symbols -- much less the implied adoption said to flow from a choice to conduct a secular ceremony in a church in which certain religious symbols remain visible -- is likely to send a number of different messages. This was recently reaffirmed in Pleasant Grove City v. Summum, 129 S.Ct. 125 (2009), in which Justice Kennedy, writing for the Court acknowledged that “it frequently is not possible to identify a single ‘message’ that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.” Id. Second, in assessing these multiple meanings, it is manifestly not the case that any religious symbolism will convey a message of religious endorsement. To hold otherwise would be to ignore Justice Kennedy's recognition in Summum -- reflected in cases like Salazar, McCreary and Lynch -- that even government action that adopts some form of religious message may not “endorse it” in ways that raises Establishment Clause concerns. As the Court has long © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 John DOE, et al., Plaintiff-Appellants, v. ELMBROOK..., 2010 WL 6020474... recognized, a thoroughgoing elimination of all religious symbolism may evince a hostility toward religion and breach the constitutionally mandated neutrality between religion and irreligion. *4 Finally, it is only the reasonable perception of an objective observer who is familiar with the text, legislative history and implementation of the action or questions well as the values of the religion clauses. See, e.g., Wallace v. Jaffree, supra, 472 U.S. at 76, 83 (O'Connor, J. concurring). This makes Appellants' case here extremely difficult. The record is devoid of any facts suggesting that the school district intended to adopt whatever private religious symbols that might be present within the Church as its own, or wished to endorse the meaning attached to those symbols by the Church. There is nothing to suggest that it wished to communicate any message other than that it wanted a large air conditioned space with large video screens and ample parking in which to hold its graduation. That message, amply supported by the history of the district's efforts to locate suitable facilities for commencement ceremonies, is underscored by the secular nature of the ceremonies and the efforts made by the district to afford an opportunity for memorialization of the ceremony without the inclusion of religious background. Endorsement of a religious message must be inferred, if it is to be inferred at all, from the fact that the graduation ceremony is taking place, even for secular reasons and without endorsement of religious belief or its inclusion within the proceedings, in a church used by people who believe things other than a nonadhering student. But without the element of state endorsement, this amounts to nothing more than the exposure to our society's diversity of belief, in this case, a reminder that there are evangelical Christians in Brookfield who hold church services in a large building suitable for graduation ceremonies. *5 There is no reason to prefer some alternative message to the one clearly intended by the school district and chosen by the district court. In Summum, the United States Supreme Court made clear that governmental messages can send multiple meanings. There is no obligation to choose that which creates Establishment Clause concerns. II. There Is No Sense In Which Holding Graduation Ceremonies In The Elmbrook Church Constitutes A Religious Ceremony. Recognizing this, the Appellants' attempted to characterize holding graduation in the church as coerced participation in a religious ceremony. This is a tough sell. As the District Court put it, “a ceremony in a church is not necessarily a church ceremony.” No church official participated in the commencement exercises or Senior Honors night and there is no religious content in any of the ceremonies or proceedings. Unlike Lee v. Weisman, 505 U.S. 577 (1992), there was no invocation and no benediction. There was no prayer, no mention of God and no sectarian content. Any association of the religious imagery that remained in the building with the graduation itself is due to the interpretive choice of the putatively offended party rather than the state. Appellants and amici ACLU, et al., argue, that “for many” entering a church is “itself a religious act.” It is not clear that this belief is, in fact, held by “many” or, for that matter, any of the plaintiffs or anyone else who graduated from Brookfield East or Brookfield Central High School in 2009. Perhaps ironically, these beliefs are religious in nature and courts have never held -- in fact could not hold -- that the measure of religious coercion or endorsement is the subjective religious belief of some potentially *6 affected persons. Were that the case, establishment concerns would arise whenever an ostensibly secular action offended the sincerely held religious belief of some subgroup of the population. Yet courts have consistently rejected the claims of religious believers offended by mere exposure to, for example, the content of ostensibly secular public education. See, e.g., Board of School Commissioners v. Smith, 827 F.2d 684 (11th Cir. 1987) (rejecting challenge of evangelicals claiming textbooks were irreligious), or permitted such offense to limit otherwise © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 John DOE, et al., Plaintiff-Appellants, v. ELMBROOK..., 2010 WL 6020474... permissible government speech. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987) (striking down state law requiring “balanced treatment” of creationism). In fact, Appellants, under their former name, Americans United for Separation of Church and State, have insisted that such sentiments not control government discourse, filing, for example, an amicus brief in Edwards. It has opposed any effort on behalf of nonadherents to, for example, have the state acknowledge their dissent from certain claims about evolution. See, e.g., Freiler v. Tangipahoa Parish Board of Education, 185 F.3d 337 (5th Cir. 1999)(challenge to disclaimer preceding lessons on evolution stating that evolution is “theory”); Selman v. Cobb County School District, 449 F.3d 1320 (11th Cir. 2006) (challenge to requirement that text books include disclaimer stating that evolution is a “theory” not a “fact” that should be approached “with an open mind, studied carefully and critically considered.”); Counts v. Cedarville School District, 295 F. Supp. (religious parents objected to Harry Potter books as supporting “religion of witchcraft”); *7 Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005) (challenge to requirement that students be informed of “intelligent design”). 5 The state cannot possibly organize its affairs to comport with the subjective views of all potentially religious groups. Some Jews and Muslims may indeed be prohibited from entering a church. Some Christians may be enjoined from exposure to scandalous or heretical messages. It might be considered sinful, for example, to sit quietly at graduation while someone who the student's church believes to be implicated in grave sin, say a politician who supports abortion rights or a “preemptive” war, is honored. These latter groups of students would be excluded from graduation just as much as those who are enjoined from entering a church. To treat them differently requires a theory about what persons “ought to” be able to object to. In the view of Americans United, objecting religious students who find their beliefs marginalized or contradicted by the state ought to understand that no theological slight or exclusion was intended. It is hard to see why, in this case, students should not be expected to understand -- as the evidence suggests they overwhelmingly do -- that the state has valid secular reasons for leasing Elmbrook Church's facility. As our discussion of the endorsement cases suggest, the Court, apparently to the dismay of Americans United, has not adopted a staunchly secular view of public spaces in which the secular are to be free of religion and the religious are to be free of no insult as long as it can be defended as a requirement of the separation of church and state. *8 CONCLUSION Amicus curiae Alliance Defense fund urges affirmance of the decision below. Footnotes See, e.g., Lemon v. Kurtzman, 411 U.S. 192 (1973) (three part test). 1 See, e.g., Lynch v. Donnelly, 465 U.S. 665, 687 (1984) (government may not “convey a message that a religion or particular 2 3 4 religious belief is preferred.”) (O'Connor, J., concurring) That finding was not reviewed by the Supreme Court. While Chief Justice Roberts and Justice Kennedy voted to remand to the district court for further consideration of the message conveyed by transfer of the cross, Justice Alito regarded this as unnecessary, satisfied that it did not violate the Establishment Clause. Justices Scalia and Thomas, both known as Justices far less inclined to find Establishment Clause violations, would have dismissed for lack of standing. See, e.g., Elk Grove Unified School District v. Newdow, 542, U.S. 1, 46 (2004) (questioning © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 John DOE, et al., Plaintiff-Appellants, v. ELMBROOK..., 2010 WL 6020474... 5 incorporation of the Establishment Clause) (Thomas, J.); McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 885 (2005) (suggesting that Establishment Clause permits general promotion of monotheism) (Scalia, J.). Americans United's involvement in these cases is taken from its website. See http://www.au.org/what-we-do/lawsuits/ browse.html? issue =religion-in-public-4.chools&statecourt=&aurole=&subissue=& federalcourt=&status=&page=2 (last visited November 29, 2010). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6