ELMBROOK SCHOOL DISTRICT

v.

JOHN DOE 3, A MINOR BY DOE 3'S NEXT BEST FRIEND DOE 2, ET AL.

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. "The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty." Lee, supra, at 640, 112 S.Ct. 2649 (SCALIA, J., dissenting). See also Town of Greece, supra, at ---- - ----, 134 S.Ct., at 1817-1819 (opinion of THOMAS, J.).

As the Supreme Court of Wisconsin explained in a 1916 case challenging the siting of public high-school graduations in local churches:

"A man may feel constrained to enter a house of worship belonging to a different sect from the one with which he affiliates, but if no sectarian services are carried on, he is not compelled to worship God contrary to the dictates of his conscience, and is not obliged to do so at all." State ex rel. Conway v. District Board of Joint School Dist. No. 6, 162 Wis. 482, 490, 156 N.W. 477, 480.

History

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 ----, 134 S.Ct., at 1819. Moreover, "if there is any inconsistency between [a 'test' set out in the opinions of this Court] and ... historic practice ..., the inconsistency calls into question the validity of the test, not the historic practice." Id., at ----, 134 S.Ct., at 1834 (ALITO, J., concurring).

In this case, however, the Seventh Circuit's majority opinion said nothing about history at all. And there is good reason to believe that this omission was material. As demonstrated by Conway, the Wisconsin case mentioned above, public schools have long held graduations in churches. This should come as no surprise, given that "[e]arly public schools were often held in rented rooms, church halls and basements, or other buildings that resembled Protestant churches." W. Reese, America's Public Schools 39 (2005). An 1821 Illinois law, for example, provided that a meetinghouse erected by a Presbyterian congregation "may serve to have the gospel preached therein, and likewise may be used for a school-house for the township." Ill. Laws p. 153.

*2286We 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.

* * *

It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution. It may well be, as then-Chief Judge Easterbrook suggested, that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was "unwise" and "offensive." 687 F.3d, at 869 (dissenting opinion). But Town of Greece makes manifest that an establishment of religion it was not.

In addition to being decided incorrectly, this case bears other indicia of what we have come to call "certworthiness." The Seventh Circuit's decision was en banc and prompted three powerful dissents (by then-Chief Judge Easterbrook and Judges Posner and Ripple). And it conflicts with decisions that have long allowed graduation ceremonies to take place in churches, see, e.g.,Miller v. Cooper, 56 N.M. 355, 356-357, 244 P.2d 520, 520-521 (1952); Conway, 162 Wis., at 489-493, 156 N.W., at 479-481, and with decisions upholding other public uses of religious spaces, see, e.g.,Bauchman v. West High School, 132 F.3d 542, 553-556 (C.A.10 1997) (sanctioning school-choir performances in venues "dominated by crosses and other religious images"); Otero v. State Election Bd. of Okla., 975 F.2d 738, 740-741 (C.A.10 1992) (upholding the use of a church as a polling station); Berman v. Board of Elections, 19 N.Y.2d 744, 745, 279 N.Y.S.2d 348, 226 N.E.2d 177 (1967) (same).

According to the prevailing standard, a GVR order is potentially appropriate where "intervening developments ... reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation." Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) ( per curiam ). The Court has found that standard satisfied on numerous occasions where judgments were far less obviously undermined by a subsequent decision of ours.

For these reasons, we should either grant the petition and set the case for argument or GVR in light of Town of Greece. I respectfully dissent from the denial of certiorari.