John DOE, 3, a minor by Doe 3‘s next best friend DOE 2, et al., Plaintiffs-Appellants, v. ELMBROOK SCHOOL DISTRICT, Elmbrook Joint Common School District No. 21, Defendant-Appellee.
No. 10-2922
United States Court of Appeals, Seventh Circuit
Sept. 9, 2011
Argued Feb. 9, 2011.
Much of the appeal of George‘s argument seems to derive from the fact that his nonattendance on the day of the robbery was unplanned. Although the point is never made explicit, there seems to be a subtle invitation to treat George as having “withdrawn” from the enterprise by absenting himself on the day of the robbery. After all, if George and Spagnola had planned all along that Spagnola would commit the robbery without George present, George‘s position (that his preparatory efforts did not amount to aiding and abetting) would lose much of its force. But his present argument is in fact precisely that weak, because he did not effectively withdraw by failing to participate on the day of the robbery. See Garrett, 720 F.2d at 714 (explaining that withdrawal for aiding and abetting purposes mirrors withdrawal in the context of conspiracy, and “to establish an effective withdrawal [from a conspiracy], the defendant must show that he took affirmative action to defeat or disavow the purpose of the conspiracy.“). An abettor cannot withdraw merely by satisfying himself that his participation is no longer needed. Id.
For the foregoing reasons, we AFFIRM the judgment of the district court.
Lori M. Lubinsky (argued), Attorney, Axley Brynelson, LLP, Madison, WI, for Defendant-Appellee.
Roger A. Ford, Attorney, Covington & Burling LLP, Jay A. Sekulow, Attorney, American Center for Law and Justice, Washington, DC, Richard M. Esenberg, Attorney, Milwaukee, WI, for Amici Curiae.
Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
A group of pseudonymous plaintiffs, referring to themselves as Does 1 through 9, brought this action against the Elmbrook School District (“the District“) in the United States District Court for the Eastern District of Wisconsin. They alleged that the District‘s practice of holding high school graduation ceremonies and related events at a Christian church rented by the District for the occasion violated the Establishment Clause of the First Amendment. They sought preliminary and permanent injunctions, a declaratory judgment and damages. After the district court denied the Does’ motion for a preliminary injunction, the parties filed cross-motions for summary judgment. The district court granted the District‘s motion and denied the Does’ motion. The Does now appeal. We hold that, on the record before us, the District‘s use of the rented church space was neither impermissibly coercive nor an endorsement of religion on the part of the District. Because there was no violation of the Establishment Clause, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
1. The District
The District is a municipal public school district centered around Brookfield, Wisconsin, a suburb to the west of Milwaukee. Its two major high schools are Brookfield Central and Brookfield East. For part of the last decade or so, Central and East have held their high school graduation ceremonies in the main sanctuary of Elmbrook Church (“the Church“),1 a local
The impetus to move Central‘s graduation to the Church seems to have come from the student officers of the senior class of 2000, who believed that the school‘s gymnasium—the previous venue—was too hot, cramped and uncomfortable. Those attending were packed in; they had to sit on hard wooden bleachers or folding chairs; and there was no air conditioning. Seeking a better alternative, the student officers decided upon the Church, which was much larger than the gymnasium and had more comfortable seats, air conditioning and ample free parking. They presented their idea to District Superintendent Matt Gibson2 and then to the senior class, which voted in favor of the proposal. After the vote, Principal Jim Brisco made the ultimate decision to choose the Church, and Superintendent Gibson approved. A similar process began at East two years later, and Principal Joe Schroeder “eventually adopted the proposal, after a majority of seniors voted for it.” R.56 at 12, ¶ 83. Until 2005, each year the students in the senior class participated in advisory votes to choose between two or three venues. These preliminary selections were made by school officials and senior class officers. The Church was always one of them, and the Church invariably emerged the overwhelming favorite.3 In 2006, the principals of East and Central determined that holding a vote for the 2007 graduation venue would be pointless and simply selected the Church after it was recommended to them by the senior class officers of the two schools.
Superintendent Gibson and Tom Gehl, a member of the school board since 2005 and president of the school board since 2009, are both members of the Church. The Does have not alleged that Superintendent Gibson or Board President Gehl have engaged in any efforts to steer graduation ceremonies to the Church, nor do they allege that either of these officials has misused his office to benefit the Church or to form a relationship between the District and the Church. There is no evidence that either Superintendent Gibson or Board President Gehl had anything to do with the selection of the Church for graduations,
With the exception of Mr. Gibson, who has been Superintendent of the District since 1995, the major players on the District‘s side have changed. Don LaBonte took over as principal of Central in 2005 after two intervening successors to Mr. Brisco.5 In the same year, Brett Bowers became principal of East when Mr. Schroeder left.6 The Church charged a standard rental rate to the District, which ran between $2,000 and $2,200 for each graduation exercise, and between $500 and $700 for honors night. Money raised by the senior class of each school covered part of the rental fees, and the District funded the rest through its general revenues, which come from property taxes.
2. The Church
The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and strongly Christian. Crosses and other religious symbols abound on the Church grounds and the exterior of the Church building, and visitors encounter these symbols as they drive to the parking lot and walk into the building. Many of these symbols—including a cross on the Church roof and a sign with a cross and the words “ELMBROOK CHURCH“—are visible from the public intersection outside the Church. The street names given the drives approaching the Church are “Agape” and “Barnabas.” R.7 (R.4 Vol. 1), Exs. 1-28, 1-29.
To reach the sanctuary, visitors must pass through the Church lobby, which also has served as a natural congregation point for graduates and their guests after past graduation ceremonies. The lobby contains tables and stations filled with evangelical literature, much of which addresses children and teens, and religious banners, symbols and posters decorate the walls.7 In the middle of the lobby is a large, circular desk displaying pamphlets such as “{young adults},” “{couples ministry},” “{middle school ministry},” “{high school ministry}” and “{college ministry}.” R.52, Exs. 172-28, 172-29. The District admits that Church members manned information booths that contained religious literature during the 2009 graduation, and a DVD
The graduation ceremonies take place on the dais at the front of the sanctuary, where school officials and students with roles in the ceremony are seated. An enormous Latin cross, fixed to the wall, hangs over the dais and dominates the proceedings.8 The first time Central held its graduation in the sanctuary, the cross was covered, apparently by accident.9 During subsequent graduations, the Church refused Superintendent Gibson‘s requests to veil the cross, in keeping with a general Church policy against covering its permanent religious displays. The Church did agree, however, to remove any non-permanent religious symbols from the dais. The chapel used by Central for its senior honors night also contains a cross.
During the ceremonies, “graduating seniors . . . sit down in the front, center rows of pews of the [sanctuary‘s] main level.” R.56 at 9, ¶ 56. Guests sit in the other pews. The parties agree that “Bibles and hymnal books remain in all the pews,” id. at 6, ¶ 34, as do a “yellow ‘Scribble Card for God‘s Little Lambs,’ a pencil, a donation envelope entitled, ‘Home Harvest Horizon: offering to the work of Christ,‘” and other religious literature, id. ¶ 35. There is no evidence that any of these materials were placed in the pews specifically for the graduation ceremonies.
3. The Controversy
Complaints about the District‘s use of the Church arose soon after the practice began. In 2001, a parent asked the District to stop holding graduation ceremonies at the Church because the parent, a non-Christian, did not want her child exposed to the Church‘s alleged teachings about those who do not share its faith.10 In that same year, the Freedom from Religion Foundation and the American Civil Liberties Union (“ACLU“) of Wisconsin voiced objections to the graduation site and asserted that it violated the Constitution. The Anti-Defamation League also objected in 2002, followed by Americans United for Separation of Church and State (“Americans United“) in 2007.
A sampling from the series of emails and letters exchanged between objecting parties and the District illustrates the nature of the dispute. In 2002, Superintendent Gibson sent an email to one parent insisting that his only role in the selection of the site was “allow[ing] each decision” made independently by the schools “to stand” and that the decisions “had nothing to do with [his] particular church membership or non-membership.” R.8 (R.4 Vol. 2), Ex. 77. The parent‘s response questioned the veracity of that account and speculated that Superintendent Gibson‘s
Sorry to say, but every time this comes up you try to obfuscate what your role was. You refuse to take responsibility and that‘s disappointing.
. . . .
Had you excused yourself from the decision because of the obvious conflict of interest your membership in the church creates, it is likely cooler heads would have thought this through thoroughly, sought objective counsel *before the decision was made*, and answered no.
. . . .
How could your membership in the church not have influenced your decision? It made it and still makes it impossible for you to be objective. You have a pronounced allegiance to the church and your religion. It is not only a financial coup for the church to host commencements, but it also brings the church the reflected glory of the state‘s accomplishment and graduates’ accomplishments. . . .
Id.
Another parent‘s email, on which employees of Freedom from Religion Foundation, the Anti-Defamation League and the ACLU of Wisconsin were copied, raised similar concerns:
There is an obvious conflict of interest regarding the Church: After all, you are a member. And, after all, the particular Church in question has a direct mission of evangelism. Whether or not evangelism was the motive is irrelev[a]nt. The relev[a]nt point is that you have violated the trust of those in the community who wish to attend a graduate ceremony in a secular, non-church setting.
Id. Ex. 36.
In response to an email in 2003, Mr. Gibson observed that he had been superintendent for four years before “the student movement at Brookfield Central to look at alternatives for graduation began” and asked the addressee to “refrain from attributi[ng]” the initiative to him. R.9 (R.4 Vol. 3), Ex. 92. The addressee was unpersuaded: “Well, Matt, regardless of what you say, I am convinced that your membership in the church was the primary factor in the church being okayed as a site for hosting commencements.” Id. Additionally, the addressee complained that the Church discriminates against non-believers and homosexuals and that it “preaches a fundamentally hateful message,” and he speculated that the student vote approving the venue was staged “to make it look like a ‘democratic’ process.” Id.
A 2006 letter from a parent to Superintendent Gibson praised the District‘s increased “sensitivity toward non-Christian students” but requested that the District try to avoid scheduling school events and tests on Jewish holidays and objected to the use of the Church as a graduation venue. R.8 (R.4 Vol. 2), Ex. 37 at 1. In response, Superintendent Gibson sent the letter to Principal Bowers and Principal LaBonte along with a note to “keep the input on Jewish holidays in mind to the extent possible when scheduling” and to put an alternative graduation venue proposed by the parent on the consideration list for ensuing years’ graduations. Id.
A series of exchanges in 2007 between Superintendent Gibson and Aram Schvey, litigation counsel for Americans United, explored the constitutionality of the practice. Although he defended the venue, Superintendent Gibson assured Schvey that “there are no references to religion or to the church in the graduation program,” that no religious literature would be distributed and that Superintendent Gibson previously has “reques[ted] removal of any non-permanent religious banners that may be on stage” and would continue to do so. Id. Ex. 40. Schvey appreciated these
In many of the letters and correspondence, Superintendent Gibson noted that the District was building a new field house that could accommodate graduation ceremonies and had been engaging in efforts to obtain funding to renovate Central‘s and East‘s gymnasiums. Although earlier efforts to obtain funding had failed, the public later voted in favor of funding that allowed the District to begin construction and renovation. In 2010, Central and East moved their graduation ceremonies to the District‘s newly completed field house. Additionally, in July 2009, Principal LaBonte declared his intention to move Central‘s 2010 honors night to its newly renovated gymnasium; in supplemental briefing before us, the District represented that the promised move had occurred.
4. The Does
The plaintiffs are current and former students of District schools and their parents. Doe 1 graduated from either Central or East in 2009. Doe 2 is Doe 1‘s parent and has an older child whose graduation ceremony was held in the Church four years earlier, as well as younger children who attend Elmbrook schools. One of Doe 2‘s younger children is Doe 3, who “will graduate from a District high school no later than 2014.” Appellants’ Br. 17. Does 1 through 3 all attended the graduation ceremonies of Doe 1 and of Doe 2‘s older child. Does 4 and 9 are the parents of children currently attending schools in the district; their eldest children are expected to graduate from high school in 2016 and 2015, respectively. “Does 5 and 6 are the parents of Does 7 and 8, who graduated from a District high school in ceremonies held at Elmbrook Church in 2002 and 2005, respectively.” Id. Does 2, 4, 5 and 6 also pay property taxes that go to the District.
What the Does all have in common is that they are not Christians.11 Those of the Does who attended past graduation ceremonies “felt uncomfortable, upset, offended, unwelcome, and/or angry” because of the religious setting. Id. In fact, the setting completely ruined for Doe 5 the experience of his children‘s graduation ceremonies, some of which he did not attend. Those plaintiffs still in school or with children still in school do not relish the prospect of attending future ceremonies at the Church.
According to the Does, there are many other available venues that the District could use for its graduation ceremonies. Moreover, the Wilson Center could host Central‘s senior honors night and indeed does host East‘s. The District already pays the Wilson Center a flat fee each year that allows District schools ample access. The District responds that, although other venues are available for graduation, none is as attractive as the Church, particularly for the price: approximately $2,000 per school per ceremony. However, the Does believe that some of the other venues are roughly equivalent in quality and price.
On April 22, 2009, the Does filed this action against the District and moved simultaneously for a preliminary injunction that would bar the District from holding its 2009 graduation ceremonies at the Church. After the district court denied that motion, the Does filed an amended complaint asking the district court to enjoin permanently the District from holding school events at the Church or, in the alternative, to enjoin permanently the District from using the Church “unless all visible religious symbols [were] covered or removed.” R.77 at 2. They also sought damages and a declaratory judgment. No discovery was taken, and the parties filed cross-motions for summary judgment. The district court denied the Does’ motion for summary judgment, granted the District‘s and dismissed the case.
After determining that the plaintiffs had standing, the district court proceeded to its Establishment Clause analysis. First, the district court held that the District was not engaging in religious coercion of the sort that the Supreme Court held to violate the Establishment Clause in Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). The district court distinguished those cases on the ground that they “speak to coerced religious participation as opposed to exposure to religious symbols.” R.77 at 16. The district court reasoned that, because there was no religious exercise at the Elmbrook graduation ceremonies, there was no coerced religious participation. Relying on Lee, it held explicitly that the plaintiffs’ “unease and offense at having to attend graduation ceremonies at the Church and face religious symbols, while in no way minor, is not enough.” Id. at 18.
Second, the district court concluded that the District‘s use of the Church does not have the primary effect of endorsing religion in violation of the test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). “On its face,” the district court conceded, “the District‘s decision to hold graduation ceremonies and the senior honors event holds symbolic force.” R.77 at 23. But because “the history and context of the community and the forum reflect that secular concerns directed the move away from school facilities toward an adequate, convenient, cost-effective graduation venue,” a reasonable observer would not understand the events to be an endorsement of the Church or its teachings. Id. at 21 (internal quotation marks omitted).
Finally, the district court disagreed with the Does that the use of the Church excessively entangled the District with religion. The court found the rental of the Church to be a standard fee-for-use arrangement and a non-enduring relationship. It also determined that the limited interaction between the District and the Church over the physical setting did not delegate impermissibly to the Church authority over the graduation events. Accordingly, the district court granted summary judgment in favor of the District and dismissed the case.
II
DISCUSSION
A. Justiciability
In its response brief in this appeal, the District did not contend that the case has been rendered moot by subsequent events. Nevertheless, we have an independent duty to ascertain our jurisdiction, see In re Repository Techs., Inc., 601 F.3d 710, 719 (7th Cir. 2010), and we accordingly ordered supplemental briefing from the parties to
As an initial matter, whatever the District‘s intentions are as to the future, the entire case is not moot because those of the Does who have attended past graduation ceremonies at the Church have live claims for damages. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (stating that a claim for damages “preserve[s]” a court‘s ability to reach the merits even if claims for forward-looking relief are moot); Nelson v. Miller, 570 F.3d 868, 883 (7th Cir. 2009). However, those of the Does who have claims for only forward-looking relief must be dismissed from the case if their claims are no longer justiciable.
In its supplemental brief, the District contends that the case is now moot because the District voluntarily has stopped using the Church and does not have any present intention of holding future graduation ceremonies or other events there. A defendant‘s voluntary cessation of allegedly wrongful conduct ordinarily “does not moot a case or controversy unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.‘” Parents Involved in Cmty. Schs., 551 U.S. at 719 (alteration in original) (emphasis added) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)); see also United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953). The Supreme Court recently has reaffirmed that the burden of proving that the behavior cannot reasonably be expected to recur is a “heavy” one that lies with the party seeking a determination that the case is moot. Parents Involved in Cmty. Schs., 551 U.S. at 719; see also Friends of the Earth, 528 U.S. at 189 (“The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” (alteration in original) (quoting United States v. Concentrated Phosphate Exp. Ass‘n, Inc., 393 U.S. 199, 203 (1968))); Lucini Italia Co. v. Grappolini, 288 F.3d 1035, 1038 (7th Cir. 2002) (stating that “[t]he burden of persuasion that such conduct cannot reasonably be expected to reoccur lies with the defendant” and reversing a district court‘s decision that a case was moot because “the court did not point to any evidence showing that no reasonable expectation existed that” the conduct would reoccur).
Here, the likelihood that the District will again use the Church for a graduation ceremony—particularly one that the Does themselves will attend—certainly has decreased since the District opened the field house. The Supreme Court has made clear, however, that a likelihood that would be “too speculative to support” a finding of initial standing can be sufficient to defeat an attempt to show mootness caused by voluntary cessation. See Friends of the Earth, 528 U.S. at 190.
The District contends, however, that Superintendent Gibson and the principals of Central and East have represented that they do not intend to use the Church again; in the District‘s view, these representations suffice to moot the case. We accord special solicitude to the representations of government officials, see Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir. 2004), but here the District has informed us that its official position is not to rule out using the Church in the future should the need arise, Oral Argument (Feb. 9, 2011); see also R.65 at 45-46, ¶¶ 197-200. See Sasnett v. Litscher, 197 F.3d 290, 291 (7th Cir. 1999) (stating that a representation that the government “has no present intention” to reinstate a challenged ordinance “is far from being an assurance, or even a prediction, that the state will not do so“), abrogated on other grounds by Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009). Indeed, the District has not stated that it would veto a decision of the individual schools—who, recall, are free to select the venue for graduation events—or a student movement to return to the Church. The Church facilities remain an available venue should any such decision be made. Under these circum
B. Anonymous Litigation
At oral argument, we also ordered supplemental briefing on whether it was proper for the district court to permit the Does to proceed using pseudonyms to protect their anonymity. We review the district court‘s decision on this matter for an abuse of discretion. See K.F.P. v. Dane Cnty., 110 F.3d 516, 519 (7th Cir. 1997) (stating in dicta that “[t]he use of fictitious names for parties, a practice generally frowned upon, is left within the discretion of the district court” (internal citation omitted)); James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (“The decision whether to permit parties to proceed anonymously at trial is one of many involving management of the trial process that for obvious reasons are committed in the first instance to trial court discretion.“).13
“An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence.” Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) (internal quotation marks omitted). In Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc), we explained that an abuse of discretion occurs only if “(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” Id. at 658 (quotation marks omitted). In situations such as the one before us—an application of a governing legal framework to the facts—if the district court “applied the correct legal standard and reached a reasonable decision based on facts supported by the record,” its decision will stand. Id.14
It is very well established that anonymous litigation is “disfavor[ed],” Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005), and should be permitted only under exceptional circumstances. See Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). “The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret.” Smith, 429 F.3d at 710. Under our precedent, however, “[t]he presumption that parties’ identities are public information, and the possible prejudice to the opposing party from concealment, can be rebutted by showing that the harm to the [party requesting anonymity] . . . exceeds the likely harm from concealment.” Doe v. City of Chicago, 360 F.3d at 669.
The District, for “strategic reasons,” did not oppose the Does’ motion. Oral Argument, supra. Nevertheless, the district court had “an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal
In granting the Does’ motion, the court said, “I‘ve not received any objection to [the Does‘] request and find no legal impediment to granting the plaintiff[s‘] request of that, to be allowed to proceed utilizing pseudonyms.” R.89 at 3-4. We previously have expressed concern when district courts have granted a motion to proceed anonymously without explaining their grounds for doing so. See Smith, 429 F.3d at 710 (remanding to the district court to explore propriety of litigating anonymously where district court “granted [the plaintiff‘s] application to do so without discussing this circuit‘s decisions“); Blue Cross & Blue Shield United of Wisconsin, 112 F.3d at 872 (stating that although a district court‘s granting of an unopposed motion to litigate anonymously without an accompanying explanation “was entirely understandable given the absence of objection and the sensitivity of psychiatric records, . . . the privilege of suing or defending under a fictitious name should not be granted automatically even if the opposing party does not object“). It is important that a reviewing court be confident that the court actually engaged in the careful and demanding balancing of interests required in making this determination.
The record before us does not suggest that the district court did anything other than carefully consider the matter. Notably, the request was made by formal motion submitted on May 12, 2009, seventeen days in advance of its ruling. The motion set forth the pertinent authorities and was supported by detailed affidavits. There is no indication that the district court did not thoroughly study the motion, including its discussion of the pertinent legal authorities, which make clear that the court has an obligation to balance carefully the privacy/security concerns of the litigants against the right of the public to be informed fully about litigation in the United States courts. We have noted that a factor in favor of upholding a ruling is the submission of a thorough motion that “cited the appropriate cases,” thereby making the court “aware of the proper standard.” Wolf v. Kennelly, 574 F.3d 406, 411 (7th Cir. 2009); see also id. (“The district court was thus aware of the proper standard for fees and appeared to use it in reaching its decision.“). We shall not assume that a district judge, in the fulfillment of his or her high responsibilities, does not read and give considered attention to the motions that are presented by the litigants in the course of litigation. See United States v. Dote, 328 F.3d 919, 924 n. 3 (7th Cir. 2003) (stating that we “presume the district court read the briefs submitted during the [sentencing] proceedings” (alteration in original) (quotation marks omitted)); Ross Bros. Constr. Co. v. Int‘l Steel Servs., Inc., 283 F.3d 867, 872 (7th Cir. 2002) (“[W]e must presume the district court read the briefs submitted during the summary judgment proceedings, where the parties spent a substantial amount of time arguing over the scope of the lawsuit . . . .“). Nothing suggests that the district court performed in anything but the expected conscientious manner. Furthermore, the court, by the time it ruled on the motion, had become quite familiar with the litigation. In addition to the pleadings, it had received the brief and exhibits in support of a preliminary injunction and the brief in opposition and its exhibits. It also had the stipulation of uncontested facts filed by the parties.
It also is significant that children are involved in the suit. See id. at 669 (stating that a plaintiff had failed to present an adequate case for anonymity in part because the plaintiff was “not a minor“); Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 190 (2d Cir. 2008) (stating that an important factor in the balancing inquiry is “whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age” (internal citations omitted)). Although Doe 1 is no longer a minor, Doe 1‘s sibling Doe 3 is, and Does 2, 4 and 9 currently have minor children attending District schools. Identifying these adult plaintiffs also would expose the identities of their children. Because the subject matter of the suit frequently has a tendency to inflame unreasonably some individuals and is intimately tied to District schools, such a risk to children is particularly compelling. See Sealed Plaintiff, 537 F.3d at 190 (listing as a factor in favor of anonymity “whether identification poses a risk of retaliatory physical or mental harm to the . . . party [seeking to proceed anonymously] or even more critically, to innocent non-parties‘” (alterations in original) (emphasis added) (quoting James, 6 F.3d at 238)).
The district court was entitled to conclude that the Does’ interest in privacy, supported in the record, outweighs the public‘s interest in totally transparent judicial proceedings to the extent that the Does need not divulge their real names. See Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979) (ruling that a district court did not abuse its discretion in denying leave to proceed anonymously without explanation where the grounds for the denial were clear). There also is no indication that litigating anonymously will have an adverse effect on the District or on its ability to defend itself in this or future actions. Thus, although we reiterate our concern that courts articulate their reasons for granting or denying a motion to proceed anonymously, under the standards set forth in Pruitt, 503 F.3d 647, we hold that, in this case, the district court did not abuse its discretion in granting the motion.
C. Establishment Clause
We review a district court‘s decision to grant summary judgment de novo, making all reasonable inferences in favor of the nonmoving party. Groesch v. City of Springfield, 635 F.3d 1020, 1022 (7th Cir. 2011). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The Establishment Clause of the First Amendment to the Constitution of the United States, made applicable to the actions of state and municipal governments by the Fourteenth Amendment, Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947), provides that “Congress shall make no law respecting an establishment of religion.”
1. Coercion
The Does submit that the District‘s use of the Church constitutes governmentally coerced participation in religion in contravention of the principles of Lee v. Weisman, 505 U.S. 577 (1992). In Lee, the Supreme Court of the United States held that the delivery of a non-sectarian prayer at a high school graduation ceremony violated the Establishment Clause because it indirectly coerced students to join in on a state-directed religious exercise. The Court stated, “It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.‘” Id. at 587 (alteration in original) (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)).
Although the exact relationship of the principle announced in Lee to the Lemon test is unclear,17 we need not resolve that
The Does contend that graduates and other attendees are coerced into participating in religion in two ways. First, they are compelled to enter a “sacred space.” Appellants’ Br. 29. In their view, entering such a space is in itself a religious activity: “Even when no formal religious worship service is underway, a church (and especially its sanctuary) remains an inherently religious setting—the physical embodiment of the faith community it shelters—and so, to many faiths, a house of worship and all its constituent parts are objects of veneration.” Id. Second, attendees are coerced into “view[ing] prominent religious iconography within [the Church], including a cross that continually looms above the dais where the ceremonies take place.” Id. at 33. The Does and amici submit that symbols can convey persuasive messages, often very effectively, and coerced exposure to religious proselytization conveyed by the state or its partners is no less offensive to the Establishment Clause when done through symbols rather than through prayers or Bible readings.
Although the anti-coercion principle expressed in Lee goes to the very heart of Establishment Clause concerns, the district court correctly concluded that its strictures were not violated here. Lee is part of a long line of cases “dealing with government efforts to ‘coerce anyone to support or participate in religion or its exercise,’ the essence of [which] is that the state is somehow forcing a person who does not subscribe to the religious tenets at issue to support them or to participate in observing them.” Kerr, 95 F.3d at 477 (quoting Lee, 505 U.S. at 587). Those cases often have involved prayer exercises or religious instruction in public schools, see, e.g., Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (invalidating Bible readings and recital of the Lord‘s Prayer in schools); Engel v. Vitale, 370 U.S. 421 (1962) (invalidating government-composed school prayer program), but they also have reached other settings and other forms of religious compulsion, see, e.g., Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (striking down a religious test oath requirement for holding public office and stating that “neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion” (internal quotation marks omitted)). Lee‘s innovation was not in its announcement of the principle that the state may not coerce religious belief or participation, but in its more particular holding, confirmed in Santa Fe Independent School District v. Doe, 530 U.S. 290, 310-12 (2000), that the special vulnerability of children, subtle social pressures and the positions of authority held by teachers and school officials might indirectly coerce students into subscribing to a religious belief or practice even where the state has not employed a direct threat of force or punishment to compel compliance. See Kerr, 95 F.3d at 477-79 (describing the Court‘s jurisprudence); DeStefano v. Emergency Hous. Grp., Inc., 247 F.3d 397, 411-13 (2d Cir. 2001) (same).
Thus, although we have held that Lee prohibits schools from compelling students to sit through proselytization efforts by religious groups during school hours, Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1169-71 (7th Cir. 1993), we also have held that Lee prevents a prison from requiring an inmate to participate in a substance abuse rehabilitation program “organized around” the acknowledgment of a belief in God and meetings that included group prayers, Kerr, 95 F.3d at 474-75, 480, and that a police chief may not pressure a subordinate “to bring her thinking and her conduct into conformity with the principles of his own religious beliefs,” Venters v. City of Delphi, 123 F.3d 956, 970 (7th Cir. 1997).
We do not doubt that symbols can be used to proselytize or that, in the appropriate circumstances, coerced engagement with religious iconography and messages might take on the nature of a religious exercise or forced inculcation of religion. See Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 661 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part) (recognizing that “[s]peech may coerce in some circumstances” and that “an obtrusive year-round religious display [of a cross on city hall] would place the government‘s weight behind an obvious effort to proselytize on
On this record, however, graduates are not forced—even subtly—to participate in any religious exercise “or other sign of religious devotion,” Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992), or in any other way to subscribe to a particular religion or even to religion in general. They are not forced to take religious pamphlets, to sit through attempts at proselytization directed by the state or to affirm or appear to affirm their belief in any of the principles adhered to by the Church or its members. Instead, the encounter with religion here is purely passive and incidental to attendance at an entirely secular ceremony. The record does not support the inference that students would appear to be, or would feel themselves to be, participating in a religious exercise or subscribing to the beliefs of the Church. The concerns in Lee are simply inapposite to the environment described in this record. See Santa Fe, 530 U.S. at 312 (holding that “the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship” (emphasis added)); Lee, 505 U.S. at 598 (noting that “the State has in every practical sense compelled attendance and participation in an explicit religious exercise” (emphasis added));
Moreover, because there is no indication that the background iconography is in any way associated with the District, that the District directed students to look at the images or that the District even pointed out the images, the general impressionability of the students does not carry the same weight in the analysis. See Santa Fe, 530 U.S. at 305 (finding that “the ‘degree of school involvement’ makes it clear that the pregame prayers bear ‘the imprint of the State and thus put school-age children who objected in an untenable position‘” (quoting Lee, 505 U.S. at 590)); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 116 (2001) (stating that although the Court noted in Edwards v. Aguillard, 482 U.S. 578 (1987), “that mandatory attendance requirements meant that the state advancement of religion in a school would be particularly harshly felt by impressionable students[,] . . . [it] did not suggest that, when the school was not actually advancing religion, the impressionability of students would be relevant to the Establishment Clause issue“); Tanford, 104 F.3d at 986 (upholding the delivery of an invocation at a university commencement because “the special concerns underlying Lee [were] absent“).
The lack of association of the iconography with the District is also helpful in analyzing the Does’ contention that entering a house of worship is a religious activity because some people consider the act to carry religious significance. Entering a church may be of religious significance to some, but it is not an inherently religious activity of the sort proscribed by Lee.18 Students, indeed all citizens in a pluralistic society, encounter religion and religious symbols in myriad ways in the course of daily life. These occasions are incidental to other human activity, and members of the community do not regard them, in the normal course of daily life, as requiring any active affirmation or participation on their part. The community accords them respect because of their meaning to some of our fellow citizens, and sometimes they are incorporated into our culture as reflections of society.19 The more appropriate
We are confirmed in our approach to this analysis by the Supreme Court‘s own approach to cases involving state-facilitated displays of religious iconography or religious messages; to address such questions the Court has used the Lemon test or asked directly if there is an impermissible endorsement rather than employing an independent coercion inquiry to analyze state-facilitated displays of religious iconography or religious messages. See, e.g., McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844 (2005) (Ten Commandments display in courthouse); Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989) (majority opinion) (crèche and menorah displays on government property); Edwards, 482 U.S. 578 (law requiring teaching of creationism in schools); Lynch, 465 U.S. 668 (crèche erected by city in a private park); Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (display of Ten Commandments on classroom walls); see also Milwaukee Deputy Sheriffs’ Ass‘n, 588 F.3d 523 (sheriff inviting religious group to speak to subordinates); Books II, 401 F.3d 857, 868 (Ten Commandments display on courthouse lawn); Books I, 235 F.3d 292 (same). We therefore turn to the Lemon test to guide the remainder of our analysis.
2. Endorsement
The Does do not contend that the District was motivated predominantly by a religious purpose in selecting the Church as the venue for its graduations and honors convocations. We therefore may pretermit any discussion of the purpose prong of the Lemon test and focus our inquiry on the effect and entanglement prongs.
With respect to the effect prong, we ask, in the context of this case, “irrespective of government‘s actual purpose, whether the practice under review in fact conveys a message of endorsement or disapproval.” Sherman ex rel. Sherman v. Koch, 623 F.3d at 517 (quotation marks omitted); see also Cnty. of Allegheny, 492 U.S. at 592. We make this assessment from the perspective of “a reasonable person, apprised of the circumstances surrounding the [practice]” and “familiar with the history of the government practice at issue.” Milwaukee Deputy Sheriffs’ Ass‘n, 588 F.3d at 528 (quotation marks omitted).
According to the Does, the setting of the graduation ceremony inherently conveys a message of endorsement because it creates an unavoidable symbolic link between the Church and the District: “[T]he holding of a school event in a church sanctuary, where an immense cross is displayed in conjunction with school banners and above school speakers, sends an unmistakable
At the outset, we cannot accept the Does’ assertion that we should approach this case with an eye to determining whether all graduation ceremonies held in places of worship necessarily convey a message of endorsement. The established principle that “Establishment Clause jurisprudence remains a delicate and fact-sensitive one,” Lee, 505 U.S. at 597, 112 S.Ct. 2649, requires that we engage in a highly fact-specific evaluation that avoids bright lines that proscribe entire areas of interaction and conduct. See, e.g., McCreary Cnty., 545 U.S. at 867, 125 S.Ct. 2722 (explaining that a prior case “did not purport to decide the constitutionality of every possible way the [Ten] Commandments might be set out by the government, and under the Establishment Clause detail is key“); Lynch, 465 U.S. at 678, 104 S.Ct. 1355 (“In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed.“); Books II, 401 F.3d at 867 (“Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” (quoting Am. Jewish Cong. v. City of Chicago, 827 F.2d 120, 127 (7th Cir.1987))); Cmty. Consol. Sch. Dist. 21, 980 F.2d at 444 (“The religion clauses of the first amendment do not establish general rules about speech or schools; they call for religion to be treated differently.“).
This fact-specific approach is necessary not only to ensure that permissible church-state relationships are permitted to exist, but also to ensure that we remain vigilant and sensitive to those encounters that do convey a message of state endorsement. For instance, following this fact-specific approach, in many cases we have noted the special danger of endorsement that religious displays at the seat of government might convey. We have articulated in those cases a substantial concern that such displays are “likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.” Am. Jewish Cong., 827 F.2d at 127 (quotation marks omitted); see also Harris v. City of Zion, 927 F.2d 1401, 1412 (7th Cir.1991) (stating that a Latin cross on a municipal seal “presents to any observer a clear endorsement of all those beliefs associated with a Latin cross in violation of the Establishment Clause“).
Consistently, both our cases and the governing precedent from the Supreme Court have counseled that we be particularly sensitive to what Justice Jackson, albeit in another context, referred to as “the practicalities and peculiarities of the case.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). For example, in Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the Court held that public school teachers may provide specialized instruction to students in religious schools without necessarily sending a message of endorsement. Zobrest therefore “repudiated” the assumption “that the presence of a public employee on private school property creates an impermissible ‘symbolic link’ between government and religion.” Agostini v. Felton, 521 U.S. 203, 224, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). “[W]ithout more,” id. at 227, 117 S.Ct. 1997, the Court later explained, such an assumption is unfounded and “smack[s] of antiquated notions of ‘taint,‘” id. at 223, 117 S.Ct. 1997 (quotation marks omitted). See also Books II, 401 F.3d at 869 (holding that, despite “the symbolic force of exhibiting a religious text at the seat of government,” a Ten Commandments display did not have the primary effect of advancing religion because in context it communicated an ac
The Does present ample evidence that the Church is indeed a highly religious and unmistakably sectarian setting. Christian symbols and messages are permanent aspects of the building‘s structure and decoration; non-permanent religious messages are present in the lobby and remain in the pews during the graduation ceremony. No one could fail to notice the giant cross that hangs over the dais and “appears in attendees’ line of sight when they watch” the ceremony. R.56 at 5, ¶ 28. In short, an objective observer undoubtedly would be aware of the religious nature of the setting.
Yet the Does offer no evidence to suggest that the District has in any way associated itself with these symbols or with the beliefs expressed by the Church or that any of the religious messages—the materials in the pews, for instance—were placed there especially for graduations rather than being standard fare for the Church‘s own activities. Indeed, the content of the graduation ceremonies and the speeches always has been entirely secular. As such, an objective observer would understand the religious symbols and messages in the building and on Church grounds to be part of the underlying setting as the District found it rather than as an expression of adherence or approval by the school. Indeed, the record demonstrates that the graduates, and by implication many other members of the audience, such as their parents, knew affirmatively that the Church simply had been rented for the occasion as the preferred venue of the participating graduates. The record also shows that the venue is rented regularly to other groups in the community in need of a similar facility for their gatherings. The observer also might be aware of efforts taken by the District to minimize the religious nature of the setting by securing the removal of non-permanent displays from the dais of the sanctuary, efforts that further distance the District from the Church‘s message. “[W]ithout more,” Agostini, 521 U.S. at 227, 117 S.Ct. 1997, the District‘s use of a religious facility for a secular purpose does not irretrievably create a symbolic link tainting the association of the two entities.
In ACLU of Illinois v. City of St. Charles, 794 F.2d 265 (7th Cir.1986), a case involving a cross erected on a city water tower, we stated that, “[w]hen prominently displayed on a public building that is clearly marked as and known to be such, the cross dramatically conveys a message of governmental support for Christianity, whatever the intentions of those responsible for the display may be.” Id. at 271 (emphasis added); see also Am. Jewish Cong., 827 F.2d at 128 (“Because City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval.” (emphasis added)); Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30, 42 (2d Cir.2011). The crucial difference here, however, is that City of St. Charles and similar cases involved religious displays and activity on public property. Because the government is presumed to control its own property, including any displays, iconography or messages decorating it, religious displays often convey a strong message that the
The Does nevertheless contend that the District would not have used the Church and would not have rejected complaints of offense were it not comfortable with the Church and its message. See Reply Br. 15 (“[R]egardless of how the Church compares with other options, District leaders surely would not have approved use of the Church if they had been uncomfortable with its religious nature or message themselves.“); Appellants’ Br. 43 (“Very likely, if the graduations had been held in a mosque replete with Islamic symbols, and the complaints had come from the Christians who make up the vast majority of the school community, the District‘s leaders would have moved the graduations long before this litigation was filed.” (internal citation omitted)). Such argumentation is speculative and obscures the crucial analytical question: whether the District‘s actions endorsed the Church‘s religious practices and beliefs. Moreover, the Establishment Clause does not require the District to refrain from all business relationships with a church or other religious group simply because some observers are offended by the group‘s beliefs or, indeed, by religion in general. See Lee, 505 U.S. at 597, 112 S.Ct. 2649 (“We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation.“); Linnemeir, 260 F.3d at 759 (refusing to halt performance of a blasphemous play at a university because “[t]he government‘s interest in providing a stimulating, well-rounded education would be crippled by attempting to accommodate every parent‘s hostility to books inconsistent with their religious beliefs“).
In this case, the District has not sponsored any religious ceremony or display; instead, it has rented a building. There is no realistic endorsement of religion by the mere act of renting a building belonging to a religious group, especially when the venue is rented to other groups on a regular basis.
The remainder of the Does’ evidence also does not establish that the District‘s conduct has the primary effect of endorsing religion. For example, the Does observe that Superintendent Gibson and Board President Gehl are both members of the Church, which, they believe, sends a message of favoritism. To that end, they point to Does 1, 2, 3, 4, & 5 v. Enfield Public Schools, 716 F.Supp.2d 172 (D.Conn.2010), which held that the staging of graduation in a church violated the Establishment Clause. In Enfield, however, there was significant evidence that a school district official and a religious group actively lobbied the school board to steer the graduation to the church because it was a church. See id. at 193-95. Viewed in context, the court held, the decision hardly could fail to convey a message of endorsement. By contrast, in this case the Does present no evidence of a similar effort. Quite the opposite: With the exception of Superintendent Gibson‘s approval of the decisions made by the individual schools, neither official had anything to do with the selection of the Church. Mr. Gehl did not even join the school board until several years after Central first rented the Church. The most the Does can say is that Superintendent Gibson‘s failure to veto the school-level decisions after re
We next address the Does’ assertion that the District‘s use of the Church excessively entangles the state with religion by allowing the Church to control the setting and atmosphere of a school ceremony, by embroiling the District in discussions about removing religious symbols from the sanctuary, by using government funds to support the Church and by fostering divisiveness within the school community. Whether considered as an independent prong of the Lemon test or as an aid to determining the primary effect of a practice, the entanglement question requires the District to establish “‘sponsorship, financial support, and active involvement of the sovereign in religious activity.‘” Vision Church, United Methodist v. Vill. of Long Grove, 468 F.3d 975, 995 (7th Cir.2006) (quoting Jimmy Swaggart Ministries v. Bd. of Equalization of California, 493 U.S. 378, 393, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990)). The “Court [has] always tolerated some level of involvement between’ the state and religion,” and “[e]ntanglement must be excessive before it runs afoul of the Establishment Clause.” Nelson, 570 F.3d at 881 (alterations in original) (quoting Agostini, 521 U.S. at 233, 117 S.Ct. 1997) (internal quotation marks omitted). We have described as “[t]he general rule ... that, to constitute excessive entanglement, the government action must involve intrusive government participation in, supervision of, or inquiry into religious affairs.” Vision Church, 468 F.3d at 995 (quotation marks omitted).
In this case, there is no evidence that the Church or its members have attempted to control or influence the setting or the content of the ceremony, and there is no evidence that the District used graduation events as a way to get the Church‘s message out.
Finally, we emphasize that our conclusion in this case rests on the record before us. Indeed, the parties represented at oral argument that they had agreed to proceed to summary judgment without taking any discovery. As we have explained, however, Establishment Clause cases are decided on their unique circumstances, and, if we are to remain faithful to the direction of the Supreme Court and to our own case law, we must decide the case on the record before us. Whether a practice violates the Establishment Clause is largely a legal issue, but it is a legal issue that is highly dependent on the facts of each case. Here, the Does present no evidence that the District sponsors the Church‘s beliefs or mission. The record before us therefore does not permit a conclusion that the District‘s choice of venue has the effect of conveying a message of endorsement of the Church or its views or results in an enduring and tangled relationship between the District and the Church. Accordingly, the district court properly granted summary judgment in favor of the District on the Does’ Establishment Clause claim.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
FLAUM, Circuit Judge, dissenting in part.
I agree that the plaintiffs have standing and that the district court committed no
I believe that conducting a public school graduation ceremony at a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries“—runs afoul of the First Amendment‘s establishment clause as applied to the states via the
Establishment clause jurisprudence has long guarded against government conduct that has the effect of promoting religious teachings in school settings, and the case law has evinced special concern with the receptivity of school children to endorsed religious messages. In Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam), for instance, the Supreme Court barred enforcement of a Kentucky statute requiring the posting of a copy of the Ten Commandments on the wall of each public school classroom within the state. The Court‘s brief discussion concluded that the statute ran afoul of Lemon‘s first prong, whether the legislation had a secular purpose. Id. at 41, 101 S.Ct. 192 (concluding that the purpose for posting the commandments was “plainly religious in nature“). In reaching that conclusion, the Court entered into a dis
Displaying religious iconography and distributing religious literature in a classroom setting raises constitutional objections because the practice may do more than provide public school students with knowledge of Christian tenets, an obviously permissible aim of a broader curriculum. E.g., Edwards v. Aguillard, 482 U.S. 578, 608, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Powell, J., concurring). The concern is that religious displays in the classroom tend to promote religious beliefs, and students might feel pressure to adopt them. The concern was front and center in Stone and apparent to one degree or another in the Supreme Court‘s school prayer cases. See Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Alabama law authorizing a moment of silence for meditation or voluntary prayer held unconstitutional); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (opening exercises featuring Bible recitation and reading of Lord‘s prayer held unconstitutional); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (prescribed daily prayer held unconstitutional). The same problem attends pervasive displays of iconography and proselytizing material at a public secondary school graduation.
In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise secular education. Literally and figuratively towering over the graduation proceedings in the church‘s sanctuary space was a 15- to 20-foot tall Latin cross, the pre-eminent symbol of Christianity. That symbol “carries deeply significant meaning for those who adhere to the Christian faith.” Salazar v. Buono, 130 S.Ct. 1803, 1836 n. 8, 176 L.Ed.2d 634 (2010) (Stevens, J., dissenting). Moreover, it is a symbol that invites veneration by adherents. E.g., 2 St. Thomas Aquinas, SUMMA THEOLOGICA, q. 25, art. 3 at 2157 (Benzinger Bros., 1947). The cross, like many symbols, is “pregnant with expressive content.” See Texas v. Johnson, 491 U.S. 397, 405, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). It acts as a “short cut from mind to mind,” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), for adherents who draw strength from it and for those who do not ascribe to Christian beliefs. Although the setting in which a symbol is displayed can shape its message, cf. Buono, 130 S.Ct. at 1811 (plurality opinion) (stating that the purpose and intent of a Latin cross placed on an outcropping in the desert was “to honor American soldiers who fell in World War I“), there is no doubt that a sectarian message is conveyed by a cross prominently displayed in a house of worship. See also McCreary County, 545 U.S. at 868, 125 S.Ct. 2722 (stressing the importance of the context in which a “contested object appears“) (quoting County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 595, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (opinion of Blackmun, J.)); Van Orden v. Perry, 545 U.S. 677, 701, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring) (discussing contexts in which Ten Commandments displays might appear).
What is more, Elmbrook Church‘s sizeable cross was not the only vehicle for conveying religious messages to graduation attendees. Upon passing through the
Regardless of the purpose of school administrators
The Supreme Court‘s decisions in Lee and Santa Fe cannot be meaningfully distinguished on the ground that the school district did not coerce overt religious activity. Lee, 505 U.S. at 605 n. 6, 112 S.Ct. 2649 (Blackmun, J., concurring) (observing that as a practical matter “any time the government endorses a religious belief there will almost always be some pressure to conform“). First, coercion has never been the sine qua non of an establishment clause violation. Santa Fe, 530 U.S. at 313-14, 120 S.Ct. 2266 (noting that coercion was not the Court‘s sole concern and that the establishment clause may be “eroded” in “myriad, subtle ways“); Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 786, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). Moreover, although Lee and Santa Fe focus on the problem of coerced religious activity, it is a mistake to view the coercion at issue in those cases as divorced from the problem of government endorsement of religion in the classroom generally. In fact, they are two sides of the same coin: “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Wallace, 472 U.S. at 60 n. 51, 105 S.Ct. 2479 (alteration omitted) (quoting Engel, 370 U.S. at 430, 82 S.Ct. 1261). And government efforts at shaping religious views may prove effective over time. Lee, 505 U.S. at 592, 112 S.Ct. 2649; cf. also
What is more, there is an aspect of coercion here. It is axiomatic that “[n]either a state nor the Federal Government ... can force nor influence a person to go to or to remain away from church against his will....” Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The first principle is violated when the government directs students to attend a pervasively Christian, proselytizing environment. Cf. County of Allegheny, 492 U.S. at 664, 109 S.Ct. 3086 (Kennedy, J., concurring in part and dissenting in part) (observing in the context of creche displays that “[p]assersby who disagree with [their] message[s] ... are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech“); Wallace, 472 U.S. at 72, 105 S.Ct. 2479 (O‘Connor, J., concurring) (noting that under an appropriately crafted moment of silence law a student “who objects to prayer ... is not compelled to listen to the prayers or thoughts of others“). Once the school district creates a captive audience, the coercion inherent in endorsement can operate. When a student who holds minority (or no) religious beliefs observes classmates at a graduation event taking advantage of Elmbrook Church‘s offerings or meditating on its symbols (or posing for pictures in front of them) or speaking with its staff members, “[t]he law of imitation operates,” Wallace, 472 U.S. at 60 n. 51, 105 S.Ct. 2479, and may create subtle pressure to honor the day in a similar manner. See also id. at 81, 105 S.Ct. 2479 (O‘Connor, J., concurring) (where children are concerned, government endorsement “is much more likely to result in coerced religious beliefs“). The only way for graduation attendees to avoid the dynamic is to leave the ceremony. That is a choice, Lee v. Weisman teaches, the establishment clause does not force students to make. See also McCreary County, 545 U.S. at 881-82, 125 S.Ct. 2722 (O‘Connor, J., concurring) (“Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.“).
The effect of endorsement created by the school district‘s practice is not diminished by the explanation that the space was rented and school officials could exercise less control over the church than they could over a schoolhouse. The argument provides only superficial appeal. The point appears most cogent with respect to the church‘s cross, although the church possessed means of covering the symbol. The point appears less cogent with respect to other aspects of the church which might have been easily modified to render the space more inviting to others. This mode of distinguishing, however, would have us look at the issue of control in an exceedingly narrow manner. The critical facts should be that school administrators effectively required attendance, because graduations are not truly optional, see Lee, 505 U.S. at 595, 112 S.Ct. 2649, and selected the venue. See Abington Twp., 374 U.S. at 222, 83 S.Ct. 1560 (the neutrality required by the establishment clause aims at preventing church and state from acting in concert such that government support is “placed behind the tenets of one or of all orthodoxies“); cf. also Lamb‘s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (no establishment clause concern for church group to use school space for an event where the district created a public forum and the event would have taken place outside of school hours and without school sponsorship). Nor is the effect diminished by the administrators’ mechanism for choosing the graduation site. The record indicates that, following the results of student elections, the principals of the high schools made the ultimate decisions on where to hold graduation. A “student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.” Santa Fe, 530 U.S. at 304, 120 S.Ct. 2266; see also McCreary County, 545 U.S. at 884, 125 S.Ct. 2722 (O‘Connor, J., concurring) (“[W]e do not count heads before enforcing the First Amendment.“).
None of this is to suggest that school officials should have exercised a higher degree of control over the church‘s environment, scrubbing it of religious symbols or working to tailor its message to a secular audience. Such a course would have run afoul of Lemon‘s excessive entanglement prong. See Bowen v. Kendrick, 487 U.S. 589, 615-18, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). Instead, school administrators should have examined the space that students voted for and recognized that it was not an appropriate location for holding a public high school graduation ceremony.
In sum, if constitutional doctrine teaches that a school cannot create a pervasively religious environment in the classroom, Wallace, 472 U.S. 38, 105 S.Ct. 2479; Stone, 449 U.S. 39, 101 S.Ct. 192; Abington Twp., 374 U.S. 203, 83 S.Ct. 1560; Engel, 370 U.S. 421, 82 S.Ct. 1261, or at events it hosts, Santa Fe, 530 U.S. 290, 120 S.Ct. 2266; Lee, 505 U.S. 577, 112 S.Ct. 2649, it appears overly formalistic to allow a school to engage in identical practices when it acts as a short-term lessee. Lee, 505 U.S. at 595, 112 S.Ct. 2649 (“Law reaches past formalism.“). The same risk that children in particular will perceive the state as endorsing a set of religious beliefs is present both when exposure to a pervasively religious environment occurs in the classroom and when government summons students to an offsite location for important ceremonial events.
Determining that the school district operated outside permissible constitutional bounds should not be equated with expressing hostility toward Elmbrook Church or its beliefs. The
I conclude that the practice of holding high school graduation ceremonies at Elmbrook Church conveys an impermissible message of endorsement. Such endorsement is inherently coercive, and the practice has had the unfortunate side effect of fostering the very divisiveness that the establishment clause was designed to avoid. Therefore, I respectfully dissent.
In re Vikram BUDDHI.
No. 10-3802.
United States Court of Appeals, Seventh Circuit.
Submitted July 11, 2011.
Decided Sept. 9, 2011.
Notes
R.22, Ex. A at 1. There is no information in the record about how the senior class officers first learned of the Church or its amenities. Although I focus my discussion on the school district‘s practice of holding graduation ceremonies at Elmbrook Church, I believe that the same constitutional defects inhere in the district‘s use of the church for awards ceremonies. See Santa Fe, 530 U.S. at 311, 120 S.Ct. 2266 (reasoning that conducting invocations at high school football games did not escape the teachings of Lee v. Weisman because extracurricular activities are “part of a complete educational experience“).We request that the site of the ceremony be changed to an auditorium in Elmbrook Church. . . . As you know, the graduation ceremony has been held in the Brookfield Central Gymnasium for the past several years. The seating in the Gymnasium is very limited, causing the atmosphere to be very busy and perhaps even chaotic. On top of the crowding, the temperature in the Gymnasium gets extremely hot in the month of June. We feel that the Elmbrook Church will overcome the limitations of space and temperature control, providing ample comfortable seating and an air-conditioned room. The cushioned seats are also much more comfortable in comparison to the hard, wooden bleachers available at school. In addition, there are more than enough parking spaces and excellent handicap facilities available at the church.