GEORGE: How hostile to religion must the state be?

OPINION:

This Friday, the Supreme Court will consider whether to hear an important case on the constitutionality of holding a high school graduation in a church auditorium. The case is Elmbrook School District v. Doe, and the court has been considering it for almost five weeks an unusual length of time indicating that the case has caught the court’s attention. The court’s decision will have sweeping implications for school districts and local governments across the country.

The case began in 2009, when a secularist organization sued the Elmbrook School District in Wisconsin for its decadelong practice of renting a church auditorium for graduation. The district chose the church auditorium at the request of its students, who complained that the prior venue the school gymnasium was cramped and uncomfortable, and lacked adequate parking, air conditioning and seating. It is undisputed that the district selected the auditorium for purely secular reasons namely, the convenient location, ample seating, free parking, air conditioning and low cost and that the graduation events were devoid of prayer or any other religious references.

Nevertheless, the 7th U.S. District Court of Appeals struck down the use of the auditorium as unconstitutional and held that the “religiosity of the space” would cause students to believe that the district was endorsing Christianity. Several judges dissented, arguing that the ruling showed hostility toward churches and would prompt unnecessary lawsuits against school districts across the country.

Unfortunately, the predictions of the dissenters are coming true. Just months after the decision, the Freedom From Religion Foundation has threatened to sue seven school districts in Illinois and Wisconsin for taking field trips to a nature camp that provides outdoor science education from a secular perspective. Their complaint? The camp is owned by a church and has a handful of religious symbols scattered across its 600 acres.

According to the Freedom From Religion Foundation, the Elmbrook decision means it “is wrong for a public school to arrange field trips to an overtly religious place, such as a church or Christian Center.” Of course, that would mean that even field trips to historic religious places such as the Washington National Cathedral would be subject to legal attack.

Nor is the threat of litigation limited to high school graduations and field trips. The head of the organization that brought the Elmbrook case also has argued against the common practice of using churches as polling places. According to him, “voting in a church might influence voters” and therefore should be eliminated.

All of these threats have real-world consequences for school districts and local governments, which often operate under significant budget constraints. Faced with expensive lawsuits over their graduation venues, most school districts simply will capitulate moving graduation to worse or more expensive venues and harming students and school budgets. One school district in Wisconsin already has been forced to do just that: It moved its graduation ceremony from the Elmbrook church auditorium to a cavernous, 42,000-seat baseball stadium at triple the price of the church.

All of this calls for a deep breath and a dose of common sense. The Supreme Court has long held that the Constitution permits the government to be neutral toward religion meaning that the government can treat religious entities on the same terms as nonreligious entities. That was just what the school district did here: It examined all available venues and chose the best facility for the price. The fact that the best facility happened to be a church did not make a neutral, common-sense decision unconstitutional.

Any other result would require the government to be overtly hostile to religion. No longer could school districts compare religious and nonreligious venues on equal terms and choose the best venue for the price. Instead, they would have to avoid religious venues, even when doing so harms students and school budgets. The Constitution does not require such a counterintuitive result.

Every winter, the federal courts host a spate of lawsuits over local Christmas and Hanukkah displays. We now face a similar prospect every spring, as school districts will be sued over field trips and graduation venues. Let’s hope the Supreme Court takes the Elmbrook case and spares us and our school districts and students unnecessary expenses.

Robert P. George is a visiting professor at Harvard Law School and McCormick professor of jurisprudence at Princeton University.