Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.
The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.
Rex Ahdar (U. of Otago, NZ) has posted Regulating Religious Coercion. The abstract follows (NB: article is behind a paywall).
This Article examines the nature and regulation of religious coercion. Direct religious coercion denotes situations where the government expressly applies sanctions to ensure conformity with religious goals. Indirect religious coercion describes situations where, although the state may not have intended to pressure citizens to comply with or participate in some religious activity, it nonetheless takes advantage of social, psychological or peer pressure that has the same conformity-inducing effect. Indirect religious coercion is a real problem for those who dissent from majoritarian religious practices. But an open-ended inquiry into it can, as critics point out, be a highly unpredictable and subjective exercise. On balance, the Article concludes that the concept does deserve recognition by the courts. The Article develops a modified indirect coercion test to guide judges in First Amendment cases. A two-step test is expounded to streamline the inquiry, identify the key criteria, and render the test more workable.
As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.”
The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner. I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:
• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Continue reading
R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Why a Coercion Test is of No Value in Establishment Clause Cases. The abstract follows.
Courts have increasingly referred to some sort of ‘coercion’ test in resolving Establishment Clause cases. This is not surprising, given the references to coercion in other areas of the law, and the serious criticism received by other, familiar Establishment Clause tests. As it turns out, though, the literature of the social sciences and humanities, and of philosophy especially, show, initially, the discouraging complexity of trying to rely on any form of coercion test in the Establishment Clause cases.
The crucial problem, however, is not precisely one of the complexity, in this context, of the idea of coercion. Rather, the idea of coercion turns out to be remarkably unclear, open, and in various ways crucially undeveloped and incomplete. Continue reading