Earlier in May, we noted that a case originating in the Seventh Circuit, Elmsbrook School District v. John Doe was languishing in certiorari purgatory, as the case -- at that time -- had already been distributed for conference eight times.
After supplemental briefs were filed, the case was distributed for conference four more times. The twelfth time was a charm apparently, as the Court finally decided whether to grant or deny cert.
Elmsbrook School District v. John Doe -- District Court
Plaintiffs, the Does, are a group of parents and past and present students of the Elmsbrook School District ("District"). The Does sued the District to enjoin it from holding high school graduations and other school ceremonies at a non-denominational, evangelical Christian church, arguing that the practice violated the Establishment Clause. The district court granted the District's motion for summary judgment and denied the Does' motion for summary judgment. The Does appealed.
Elmsbrook School District v. John Doe -- Seventh Circuit
The Seventh Circuit, in an opinion far from unanimous, with one concurrence and three dissents, reversed the decision of the district court. Judge Flaum, writing for the court, stated, "We conclude that the practice of holding high school graduation ceremonies in the Elmsbrook Church sanctuary conveys an impermissible message of endorsement." He explained that, "Under the circumstances here, the message of endorsement carried an impermissible aspect of coercion, and the practice has had the unfortunate side effect of fostering the very divisiveness that the Establishment Clause was designed to prevent."
Elmsbrook School District v. John Doe -- Supreme Court
In Monday's order, the Supreme Court denied certiorari, but that's not all. Justice Scalia wrote a dissent to the denial of certiorari, and he was joined by Justice Thomas. Instead of denying cert, he would have granted certiorari, vacated the judgment and remanded for the Seventh Circuit to revisit the case in light of Town of Greece v. Galloway.
While we now know that prayer at city council meetings are ok, there is still disagreement as to whether school graduations can take place in churches. For now, at least for the Elmsbrook School District, the Seventh Circuit analysis is still good law.
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