According to the Milwaukee Journal Sentinel, July 23, 2012
The Elmbrook School District violated the constitutional separation of church and state by holding graduation ceremonies inside Elmbrook Church, the 7th Circuit U.S. Court of Appeals ruled Monday.
Writing for the majority in a 7-3 decision, Judge Joel Flaum said the risk of children perceiving the state as endorsing a certain religion is the same whether it happens in the classroom or at an off-site event.
"We conclude that the practice of holding high school graduation ceremonies in the Elmbrook Church sanctuary conveys an impermissible message of endorsement," Flaum wrote.
The decision was the result of a suit brought by the Washington, D.C.-based group Americans United for Separation of Church and State on behalf of nine unnamed plaintiffs.
"We think this ruling will have a big impact across the country," said Alex Luchenitser, lead attorney on the case for Americans United.
In 2010, the school district moved both schools' graduation ceremonies to a newly constructed field house. However, in the opinion, Flaum wrote that the school district had refused to commit to not holding graduation at the church again. Luchenitser said that without Monday's ruling that was something that concerned him.
"If the school district had the legal right to return to the church they might have done so," Luchenitser said.
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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, …….
The three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), “remains the prevailing analytical tool for the analysis of Establishment Clause claims.” ………..
Under the Lemon test, a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion. See Lemon, 403 U.S. at 612–13. Here, the Does maintain that the practice of holding high school commencement ceremonies and honors convocations in the rented sanctuary of a church violates the Establishment Clause in several ways: It coercively imposes religion on graduates and their families; it communicates a message of governmental endorsement of religion; it confers control over the physical setting of public school events to a religious entity; it directs tax funds to support the propagation of religion; and it arises out of divisive student votes. We shall discuss each of these contentions in the course of our analysis.
Court precedent vs. The Constitution
US Constitution, Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
US Constitution, Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
US Constitution, Amendment 14 - Citizenship Rights
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
We the People:
Judge Joel Flaum expressed concern that the children would perceive at government endorsement of a religion. To the contrary, we should all be concerned when unconstitutional rulings such as this are allowed to stand. The justices in the Lemon case apparently conceded that the first amendment alone was not germane because it only limits the federal government. So they over-extended the limitations from the fourteenth amendment and created a church-state separation for state and local governments. The creation of that and the three-prong test would have been a prerogative of state legislatures. It was certainly not a power allowed to the judicial branch – especially for the federal judicial branch.
According to the Lemon test, the federal government can conceivably use the equal protection clause (in paragraph 1) of the fourteenth amendment to transfer any restriction it is under to the states. In other words, the tenth amendment would be all but nullified by the fourteenth. This is a misapplication. The equal protection clause requires states to apply their laws equally to all citizens; thus selective enforcement is prohibited. The tenth amendment asserts that unless explicitly defined in the Constitution, the federal government must butt out of all other matters.
Mr. Luchenitser is correct; this will have a big impact across the country. This pertains to much more than where graduation ceremonies are held. If an upscale conservative community such as Brookfield concedes this Constitutional liberty, all Wisconsin communities have lost. Now is the time. It can be won. Brookfield can help us and allow us to help them by creating a legal defense fund, and by proceeding to the Supreme Court.