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A full panel of the Seventh Circuit Court of Appeals held that two Wisconsin high schools violated religious freedom by holding graduation ceremonies in a (gasp!) church.
Never mind that students in the school district had repeatedly voted to use the church (because it had air conditioning, good parking, etc), and never mind that the students held fundraisers to pay for the rental fee. The Court held that the whole arrangement violated “the First Amendment’s core value of protecting members of minority faiths and non-believers from persecution and exclusion by religious majorities,” in the words of concurring judge David Hamilton.
Speaking of Judge Hamilton, he was the district court judge who, in 2005, held that state legislators could not openly pray to “Jesus” without violating the Constitution, but they could pray to “Allah.” Given his judicial philosophy, it’s no wonder that President Obama elevated Hamilton to the Seventh Circuit. Given another 4 years, Obama might get Hamilton on the Supreme Court (see my earlier post on What’s at Stake in this election).
The original meaning of the Establishment Clause was to prevent the federal government from interfering with State laws recognizing (or not) religions, hence the command that Congress shall make no law “respecting” an establishment of religion. In other words, the Establishment Clause is a federalism provision — it gives states and localities the freedom to engage in precisely the sort of cooperative efforts at work in Wisconsin, as long as those efforts do not impinge on anybody’s right to “free exercise” of religion. Clearly, holding a graduation ceremony in a rented church building does not trample on anybody’s free exercise.
The full text of the decision, including good dissents by Judges Posner, Easterbrook, and Ripple, is here.