Being ‘Offended’ Does Not Constitute An ‘Establishment’ Of Religion

Being “offended” does not constitute an “establishment” of religion: The Supreme Court and Elmbrook School District.
By Dr. John Sparks

Elmbrook School District Church Graduation
Elmbrook School District's “offensive” (not), Church Graduation
The Center For Vision & Values
The Center For Vision & Values

Grove City, PA –-( The Elmbrook School District operates two public high schools in suburban Wisconsin.

Finding that its own gymnasiums were cramped, hot, and uncomfortable, and at the request of students, it decided to move joint graduation ceremonies to a local Protestant church which offered air conditioning, more space, and greater comfort for attendees.

Not surprisingly, the rented sanctuary contained a prominently displayed cross, religious banners, hymnals, and Bibles. Neither the church’s staff nor members of the church’s congregation participated in the graduation. However, some students and parents complained that exposure to the religious symbols and materials was itself offensive and constituted an unconstitutional establishment of religion. The group sued the school district. The case went to the Seventh Circuit, first to a three-judge panel and then to the full court.

Amazingly, the Seventh Circuit Court found for the parents and students, holding that conducting the graduation in a church building was tantamount to the establishing of religion.

The school district sought a U.S. Supreme Court review, especially in light of the high court’s own recent decision in Town of Greece v. Galloway which allowed prayer before a local government’s meetings. The Supreme Court, however, refused to review the Seventh Circuit decision, thus leaving the ruling to stand. Is this the result the First Amendment was designed to produce? An amendment that prohibits the government from “establishing religion?”

Justice Antonin Scalia said “no” and wrote a hard-hitting seven-page dissent to the court’s one sentence refusal to hear the appeal. Scalia first points out that in Elmbrook “it is beyond dispute that no religious exercise whatever occurred” at the graduation event. The complaining students and parents were not objecting to ceremonial content. Instead, they said that they “felt uncomfortable, upset, offended, unwelcome and/or angry because of the religious setting.”  But is “being offended” by a one-time religious venue for a public school graduation really equivalent to the government establishing a church?  Scalia refers to Justice Anthony Kennedy’s sensible and historically correct statement in the Town of Greece v. Galloway case: “[A]n Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views.”  Scalia reminds his colleagues that a “religious establishment” against which the First Amendment warns is a governmentally mandated and tax-supported church.

Concluding that holding a high school graduation ceremony in a local church because of inadequate school facilities violates the First Amendment trivializes the intent of that anti-establishment language. Secondly, it raises “offensiveness” to the level of a constitutional right. Third, it moves closer and closer to the view that the First Amendment establishment clause requires “religion” and “government” to exist in separate hermetically sealed containers precisely at a time when America’s public institutions are in desperate need of the moral grounding which religious foundations provide.

This one line refusal by the U.S. Supreme Court to review the Seventh Circuit’s errant decision will not receive the media attention that the other full-fledged opinions will receive, but it shows that the court is still sadly confused about what constitutes religious establishment.

–Dr. John A. Sparks is the retired dean of the Calderwood School of Arts & Letters, Grove City College, Grove City, Pa., and teaches constitutional history and business Law on a part-time basis. He is a member of the State Bars of Michigan and Pennsylvania and is a fellow for educational policy for The Center for Vision & Values at Grove City College.

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Don BaileyJon OLENICKbrian winters Recent comment authors
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Don Bailey
Don Bailey

In our city, there is a Baptist Church that often graciously invites the city to use its sanctuary for town meetings. Yes, there is a very large cross prominently displayed, and there are hymnals everywhere. But in all of the meetings that I’ve attended, I’ve not once been tempted to change faiths or denominations while there. Seems like there is always some kind of crowd out on their own crusade.


Safty, health and comfort indicated a change in venue. Thank you church for offering your sanctuary. As long as there was no prosthitizing there should be no objection to the location. Some people seem to live their lives looking for things to object to. Your right to swing your arms extendes to just short of my nose. Jon.

brian winters
brian winters

I mentioned this case to a female coworker who is a non practicing jew and she said holding any public school function in any religious institution is insulting to non religious people and it is better for parents to be hot and tired in the schools gym or move it to a movie theater or such. I asked why and she stated people need to be free from religion.