“Mere Presence” = Proselytizing?

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 .