When it comes to criminal cases yes. When it comes to whether something is Constitutional however they are not suppose to.
This is simply not how our judicial system works, and never has. Context is always important, and if there is any element of coercion (either against the attendees or the taxpayers) then the government is infringing on First Amendment rights. And a graduation ceremony most definitely applies to both, as it's a common event that most people want to attend.
How about base it off of what they meant when they made the law and not on someone's opinion 200+ years later? After all wouldn't it make sense to apply a law in the way that it was meant to be applied and not how someone 200+ years later thinks it should be applied?
No, actually that would not make any sense at all. Because the First Amendment didn't even apply to the states at the time it was ratified (that didn't come until nearly 100 years later). And because public education was rare or nonexistent at the time. And because the people who ratified the First Amendment were not a monolithic entity, and therefore didn't mean to apply it in ANY particular way. Trying to decipher what they would have thought about a church being used for a public school's graduation ceremony is a futile exercise and not particularly relevant to the world in 2012.
And that is the arguement I am presenting. There's plenty of evidence that those that wrote the 1st amendment had no intention of shielding people from religion. Just in shielding religion itself. No matter the religion.
The government doesn't need to "shield people from religion" in the sense of restricting the actions of private entities. But it DOES have a responsibility to shield people from religion in its own affairs. The state is spending taxpayer money and the school is holding a public event that most participants will want to attend. Therefore they do have a responsibility to not spend it on anything religious, for the same reason that the state can't outright build a mosque with taxpayer money and open a DMV inside.
Otherwise no school would have ever been held in a church setting. No courtroom would have had the 10 Commandments from the get go. I could prolly come up with more, those are just off the top of my head.
I'm not sure what you think this proves, other than that some courts once had a different interpretation of the First Amendment than they do now (or just didn't enforce it as well). It says nothing about which interpretation is "correct" (whatever that means).
But that is not where it says that a government entity could not promote religion. It just says that the rights in the BoR must apply to State governments as well as the Federal government.
So in your view, would it be constitutional for teachers in public schools to start preaching Scientology and actively try to convert their students, as long as they didn't force them? What if the school made conversion to Scientology a requirement in order to participate in after-school events, which are entirely optional?
Why not hold it in a church? What is inherrently wrong with such a venue? So what if it makes some people uncomfortable. Last I knew there was no right to be free from uncomfortable situations. So long as they are not forced to attend an actual religious ceremony then I see no problem with it.
The problem is that when you put people in a religious atmosphere like that, it's essentially an advertisement for that religion.
And all of it is provided free of charge from and by the government.
I don't really have a problem with it since it's on individual people's graves. If Arlington Cemetery had religious iconography that weren't for specific people or groups of people (and I don't know if they do), I'd be more likely to have a problem with that. Although they probably get more leeway than public schools, since it's an historical site and monument.
