In Justice Scalia’s dissental in Elmbrook School District v. Doe, joined by Justice Thomas, he asserts that in light of Town of Greece v. Galloway, the case should have been GVR’d. He claims that Town of Greece “confronted and curtailed” the line of precedents relied on by the 7th Circuit in Greece.
In the decision below, the en banc Court of Appeals for the Seventh Circuit relied on those cases to condemn a suburban Milwaukee school district’s decision to hold high-school graduations in a church. We recently confronted and curtailed this errant line of precedent in Town of Greece v. Galloway, 572 U. S. ___ (2014), which upheld under the Establishment Clause the saying of prayers before monthly town-council meetings. Because that case made clear a number of points with which the Seventh Circuit’s decision is fundamentally inconsistent, the Court ought, at a minimum, to grant certiorari, vacate the judg- ment, and remand for reconsideration (GVR).
First, it apparently jettisoned the endorsement test:
First, Town of Greece abandoned the antiquated “endorsement test,” which formed the basis for the decision below. In Town of Greece, the Second Circuit had also relied on the notion of endorsement. See 681 F. 3d 20, 30 (2012). We reversed the judgment without applying that test. What is more, we strongly suggested approval of a previ- ous opinion “disput[ing] that endorsement could be the proper [Establishment Clause] test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the ‘forthrightly religious’ Thanksgiving proc- lamations issued by nearly every President since Wash- ington.” 572 U. S., at ___ (slip op., at 11) (describing County of Allegheny, supra, at 670–671 (KENNEDY, J., concurring in judgment in part and dissenting in part)). After Town of Greece, the Seventh Circuit’s declaration— which controlled its subsequent analysis—that the en- dorsement test remains part of “the prevailing analytical tool” for assessing Establishment Clause challenges, 687 F. 3d, at 849 (internal quotation marks omitted), mis- states the law.
Is failing to apply the test the same thing as “abandon[ing]” it? And is an citation to an AMK concurring opinion sufficient?
Second, Scalia hints that Town of Greece abandoned the coercion test:
Second, Town of Greece made categorically clear that mere “[o]ffense . . . does not equate to coercion” in any manner relevant to the proper Establishment Clause analysis. 572 U. S., at ___ (slip op., at 21) (opinion of KENNEDY, J.). “[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.” Ibid. See also id., at ___ (THOMAS, J., concurring in part and con- curring in judgment) (slip op., at 7–8) (same). …
In this case, it is beyond dispute that no religious exercise whatever occurred. At most, respondents complain that they took offense at being in a religious place. See 687 F. 3d, at 848 (plaintiffs asserted that they “‘felt uncomfortable, upset, offended, unwel- come, and/or angry’ because of the religious setting” of the graduations). Were there any question before, Town of Greece made obvious that this is insufficient to state an Establishment Clause violation.
It bears emphasis that the original understanding of the kind of coercion that the Establishment Clause condemns was far narrower than the sort of peer-pressure coercion that this Court has recently held unconstitutional in cases like Lee and Santa Fe.
Does saying that offense is not coercion represent an abandonment of the coercion test? Does originalism resolve this matter? This seems like a strained reading as well.
Finally, Scalia seems to suggest that the only acceptable Establishment Clause test is one of history–similar to his opinions in Crawford (confrontation clause) and Heller (Second Amendment).
Last but by no means least, Town of Greece left no doubt that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’ ” 572 U. S., at ___ (slip op., at 7–8). Moreover, “if there is any inconsistency between [a ‘test’ set out in the opinions of this Court] and . . . historic practice . . . , the incon- sistency calls into question the validity of the test, not the historic practice.” Id., at ___ (ALITO, J., concurring) (slip op., at 12). …
We ought to remand this case to the Seventh Circuit to conduct the historical inquiry mandated by Town of Greece—or we ought to set the case for argument and conduct that inquiry ourselves.
If Justice Kennedy purported to eschew these other tests, and rely solely on originalism, I would think he would have done so more clearly.
That only Thomas joined this dissental strains the understanding that Greece actually accomplished these goals. But it does leave the question open for future litigation.