Disturbing Dissent: Scalia And Thomas Use AU Graduation-In-Church Case To Blast Separation Yet Again

The reality is that church-state separation cannot exist in the real world without at least some assistance from the courts. The religion clauses of the First Amendment are a mere 16 words long. It’s up to judges to interpret those words. That’s what makes this noble principle so fragile.

It is becoming increasingly clear that the right wing of the U.S. Supreme Court is openly hostile toward the constitutional principle of church-state separation.

In May, the high court narrowly ruled in Town of Greece v. Galloway, a case sponsored and litigated by Americans United, that the governing board of Greece, N.Y., may invite Christian ministers to make invocations in the name of God or Jesus Christ at its monthly board meetings – all with the approval of elected officials.

That appalling opinion was authored by Justice Anthony M. Kennedy and supported by Chief Justice John G. Roberts along with Justices Samuel A. Alito, Antonin Scalia and Clarence Thomas.

Seemingly unsatisfied with the damage caused by Greece, Scalia and Thomas apparently felt the need to explain once again why they think coercive religious activities on the part of government are not actually the same as an establishment of religion.

Yesterday, the Supreme Court once again considered an AU-sponsored case – Doe v. Elmbrook School District. The school district had sought review of a July 2012 decision in which a 10-judge panel of the 7th U.S. Circuit Court of Appeals struck down a Wisconsin school district’s use of an evangelical megachurch to hold commencement ceremonies.

Fortunately most of the high court had no interest in hearing the case, which meant a victory for AU. But not Scalia and Thomas, who wanted to take the case or order the appeals court to reconsider its decision.

In a seven-page dissent, Scalia asserted that the Elmbrook case is not fundamentally different from Greece. Citing Kennedy’s opinion, Scalia contended that holding a public school graduation in a church is not equivalent to government endorsement of religion.

In a truly callous moment, Scalia also wrote that the sensitivities of a handful of people are not the concern of the U.S. Constitution.

Town of Greece made categorically clear that mere ‘[o]ffense . . . does not equate to coercion’ in any manner…,” he said. “It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution.”    

What Scalia and Thomas failed to grasp is that the plaintiffs in Elmbrook were not just some bunch of overly sensitive Richard Dawkins disciples. In fact, all students and parents who attended graduations at Elmbrook Church were subjected to a barrage of fundamentalist Christian propaganda. Students received their diplomas underneath an immense Christian cross. Parents and children sat in pews filled with Bibles and hymnals, “Scribble Cards for God’s Little Lambs” and church promotional cards that asked them whether they “would like to know how to become a Christian.” The church’s lobby was filled with evangelical pamphlets and postings, many of which were aimed at children and teens.

That hardly sounds like the passive presence of materials simply left over from church services.

Like Kennedy in Greece, Scalia also focused on “tradition” as a justification for government-sponsored religious activity. In his Elmbrook dissent, Scalia argued that early public schools used church buildings for school functions.

“As demonstrated by [State ex rel. Conway v. District Board of Joint School Dist.], the Wisconsin case mentioned above, public schools have long held graduations in churches,” Scalia said. “This should come as no surprise, given that ‘[e]arly public schools were often held in rented rooms, church halls and basements, or other buildings that re­sembled Protestant churches.’”

In fact, there is no evidence of any consistent historical practice of public schools using churches for graduations. And in any event, just like Kennedy in Greece, Scalia seems to think that the America of today is the same as it was in the 19th and even early 20th centuries. The Conway case did indeed hold that having a public school graduation in a Wisconsin church is not government endorsement of religion.

(The case also upheld the giving of prayers at public school graduations, a practice the Supreme Court struck down in its 1992 decision Lee v. Weisman.)

That case was decided in 1916, a time when women could not yet vote, African Americans were subjected to Jim Crow laws and a Jewish man, Leo Frank, had recently been lynched by a Georgia mob after being falsely accused of rape.

Does Scalia honestly think nothing has changed in 100 years? And would he advocate for a return to slavery, simply because it was an American “tradition” for more than 200 years?

The reality is that church-state separation cannot exist in the real world without at least some assistance from the courts. The religion clauses of the First Amendment are a mere 16 words long. It’s up to judges to interpret those words. That’s what makes this noble principle so fragile.

If it were up to Scalia and Thomas there would be almost no separation at all. It’s pretty frightening knowing that two judges who think that way sit on the most powerful court in the land.