Appeal blasts judges’ ‘religious phobia’

first_amendment-340x161From, byBob Unruh, 01/26/13 – An appeals court decision that barred high school students from holding their  graduation ceremony at a church building shows “hostility” toward religion and  should be reversed by the U.S. Supreme Court, because it violates the U.S.  Constitution, charges a team of legal experts.

The Alliance Defending  Freedom says the ruling by the 7th U.S. Circuit Court of Appeals “mandates  hostility to religion and puts the free exercise rights of students at  risk.”

“Church buildings should not be treated like toxic warehouses simply because  they normally house religious activities. That has never been the intent of the  First Amendment,” said ADF Senior Counsel David Cortman. “On the contrary, as  the judges who dissented on the 7th Circuit’s opinion said, this opinion clearly  exhibits an unconstitutional hostility toward religion. The government isn’t  being neutral toward religion when it treats it worse.”
The dispute arose over a plan by high school seniors in the Elmbrook, Wis.,  School District to hold graduation ceremonies in a facility superior to their  cramped school gym, which is not air conditioned and has wooden benches.

They found an alternative at the nearby Elmbrook Church, which could “easily  accommodate all of their guests (even those with disabilities) and offered  amenities like cushioned seating, free parking and temperature control.”

The rental price of the church was also less expensive than holding the  graduation ceremony in the school’s “antiquated gym,” the seniors said.

School officials approved the proposal.

But “offended” students and their parents sued, and the full appellate court  overturned decisions by its own panel and a lower court, which ruled that  allowing the rental arrangement for the convenience and comfort of the students  was reasonable.

The majority ruled, in the face of multiple and extensive dissents, that  holding high school graduation ceremonies in the Elmbrook Church sanctuary “conveys an impermissible message of endorsement.”

ADF now is asking the Supreme Court to walk that back, because the 7th  Circuit’s decision “severely compromises public schools’ ability to rent private  venues for secular purposes and threatens to derail valuable educational  programs that depend upon religious neutrality for survival.”

“Given the magnitude of the Seventh Circuit’s legal errors and the  significance of their real-world impact, this court should grant review to  vindicate the Establishment Clause’s true intent,” ADF contends.

The opinion of the full 7th Circuit, says ADF, “takes the district’s  practical solution to a real-world problem and manufactures a constitutional  morass.”

The ADF brief points out the extent of the “morass.”

“Individual students may, for example, read the final stanza of Father  Mapple’s beautiful hymn in Chapter 9 of Moby Dick, which concludes ‘I give the  glory to my God. His all the mercy and the power,’ and be moved to meditate  privately upon their own desire to ‘give the glory to [their] God.’ This does  not turn the secular study of Moby Dick into an endorsement of religion,” the  brief explains.

“If neutrality is no longer relevant and private persuasion violates the  Establishment Clause, school districts must extinguish this expression to avoid  tainting their secular pursuits. Nothing in the Constitution allows such  hostility to religious speech,” the brief argues.

It says the appeals ruling reflects bias and irrational feelings by  suggesting the church should have “modified” its speech to be “more inviting to  others.”

“Such reasoning smacks more of religious phobia than legitimate Establishment  Clause concerns,” ADF argues.

“Not only does the Seventh Circuit’s opinion contravene the Establishment  Clause by mandating antagonism toward religion, it also requires school  districts to discriminate amongst religious sects. The court suggested the  district might be allowed to host a ceremony in a church that lacked ‘the  proselytizing elements present in this case.’”

The criticism of Elmbrook Church church was that it was “pervasively  Christian,” the court said.

Dissenting judges at the 7th Circuit were blunt.

“The likely effects of today’s decision will be, first, to confirm the view  of many religious Americans that the courts are hostile to religion; second, to  infuriate students and their families by depriving them of the best site for  their high school graduation; and third, to initiate what federal law does not  need: a jurisprudence of permissible versus impermissible rentals of church  space to public schools and other public entities,” wrote Judge Richard  Posner.

“The majority opinion leaves open the possibility that if the high school  burned down and the church were the only feasible site for holding classes while  the school was out of commission, such a public use of religious property would  be permissible. An emergency exception to the rule laid down today is  appropriate, but the list of exceptions won’t end there. What if the school  didn’t burn down but only the gym, and what if, thinking their principal  competitor, Elmbrook Church, had been eliminated from consideration as the  substitute venue for the graduation, the owners of alternative venues raised  their rental price and the church responded by lowering its price? Could the  high school then, in this period of diminished public school budgets, plead  economic necessity for continuing to hold its graduation ceremony in the  church?”


Bob Unruh

Bob Unruh

Bob Unruh joined WND in 2006 after nearly three decades with the Associated  Press, as well as several Upper Midwest newspapers, where he covered everything  from legislative battles and sports to tornadoes and homicidal survivalists. He  is also a photographer whose scenic work has been used commercially.

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