Mark Movsesian covers a recent circuit court ruling which could turn out to be “a major Establishment Clause case.” In Doe v. Elmbrook Elementary School, handed down on July 23, a panel of judges (including the well-known Richard Posner) drew interesting distinctions which may affect what constitutes “proselytizing” by a religion. In the view of the court:
…the decision revives a theme that appeared in the first religious symbols case, Stone v. Graham, the Court’s 1980 decision forbidding the placement of the Ten Commandments in public school classrooms. The Court worried that the Commandments might have a proselytizing effect on impressionable students; even though the students were not required to do anything in response, the mere presence of the Commandments might encourage veneration. Here, the Seventh Circuit emphasized the presence of a large Latin cross and evangelical materials in the pews and in the sanctuary’s lobby. Unlike in Stone, of course, the state was not directly responsible for these things; but the state had chosen to hold the ceremonies in a space where these “proselytizing elements” were present.
Read more of Prof. Movsesian’s (quite accessible) analysis at the St. John’s Center for Law and Religion.