Constitution Check: Does being a child still make a constitutional difference?

Lyle Denniston looks at the Supreme Court’s long-running effort to shield children from religious influences and its decision to decline an important test case.

800px-Supreme_Court_US_2010THE STATEMENT AT ISSUE:

“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…that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was ‘unwise’ and ‘offensive.’ But [our decision in] Town of Greece v. Galloway makes manifest that an establishment of religion it was not.”

– Excerpt from a dissenting opinion by Justice Antonin Scalia, joined by Justice Clarence Thomas, as the Supreme Court on Monday refused to review a federal appeals court ruling that it is unconstitutional to hold public high school graduation ceremonies in a church adorned with religious symbolism, even if nothing religious is said – or sung — at the ceremonies.


Nowhere in the Constitution does it say specifically that children are supposed to get a break under the nation’s laws, to take account of the fact that they are not yet fully formed human beings capable of living up to citizen obligations. The only specific mention of age as a constitutional factor is in the 26th Amendment, treating 18-year-olds as adults for purposes of gaining the right to vote in any federal or state election.

Over the years, however, the Supreme Court has written a whole new constitutional chapter reserved for Americans under the age of 18.   It has ruled, for example, that they are too young to be given the death penalty for murder, and too young even to be given a sentence of life-without-parole for murder. It has also ruled that a minor’s age must be taken into account when a court decides whether they should be warned about their legal rights if questioned by police about a crime.

Minors are not, as a group, entitled to fully equal treatment in all things legal. For example, schools can sometimes regulate what young people can say or write or wear at school, and can even restrict what they say about school affairs when they are writing on computers or tablets even at home, if that has an impact on the school.   Students generally have some right of free speech, but it can be censored, to a considerable degree, if school functioning would otherwise be disrupted.

While at school, students don’t have a full-fledged right of privacy about what they keep in their lockers. And they can be required to pass drug or alcohol tests as a condition for taking part in some school activities.

Little about those trends in constitutional law has caused as much controversy as the Court’s long-running effort to shield children from religious influences, when the children have no choice about being exposed to such influences.

That effort has been based upon the premise that, at a young age, a child is impressionable, and may not understand how to deal with a religious message that could run counter to what they or their family believes about such subjects.   Prayers led by teachers in the classroom have long been forbidden.

And, in a pair of decisions in 1992 and 2000, the Supreme Court ruled that school officials cannot sponsor an activity at school that brings explicitly religious messages to the students – prayers at graduation ceremonies (the Lee v. Weisman decision in 1992), and prayers before school sports events (Santa Fe School District v. Doe in 2000).

In May of this year, the Supreme Court seemed to send a signal that it was going to be more willing to allow religious expression as part of America’s public life, but that it would do so without changing its view that children still needed protection in this sphere.

It ruled that local governments could open their meetings with prayers, even if there were people in the audience for whom that would be objectionable. At the same time, however, the main opinion in that case – Town of Greece v. Galloway – stressed that the Court was not changing its mind about the prayers-at-graduation ban or the prayers-at-football-games ban imposed in the rulings in 1992 and 2000. That opinion mentioned those decisions, and said they were different from the Town of Greece case; it stressed that town board meetings would be attended, for the most part, by “mature adults…not ready susceptible to religious indoctrination or peer pressure.”

But, even as the Court announced that ruling, it was preparing to act on a new case directly testing religious influence on public school students – the case of the Elmbrook School District, in the Milwaukee suburb of Brookville.   School officials there had switched graduation ceremonies to the sanctuary of a Christian church, dominated by a cross and a series of religious banners, with Bibles and religious literature in the pews where the students and where families would sit. They did it as a matter of physical convenience, not to promote religion. Even so, a federal appeals court, relying on what the Supreme Court had ruled in 1992 and 2000, found that setting to be unconstitutionally coercive for students and their younger siblings.

Would the Supreme Court use the Town of Greece ruling as a reason to reconsider its views on the sensitivity of young people to religious messages?   It could have signaled just such a shift if it had ordered the appeals court to reconsider the Brookville episode, taking into account the Town of Greece ruling.

After pondering the issue for 10 weeks, the Court acted: it simply denied review of the graduation-in-church case, making the federal appeals court decision against that practice final and influential as a precedent.   Justices Scalia and Thomas made clear in a joint dissenting opinion that they thought the government prayers decision had totally undermined the basis for treating school children as too sensitive to be exposed, even passively, to religious symbolism.   But, lacking the support of at least two other colleagues, they could not persuade the Court to reconsider; it takes four Justices to grant review of a case.

For students, their parents and their teachers, there is a quite clear civics lesson in this: the Constitution is still lined up on the side of letting them develop their own religious views, as they grow up.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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