Written by Don Byrd
The 7th Circuit Court of Appeals has affirmed the trial court’s ruling, upholding as constitutional a revised version of a Christmas pageant produced each year by an Indiana high school. A 2014 version of the show was ruled halted by a judge out of church-state concerns because of its substantial emphasis on a human Nativity Scene and New Testament readings.
Changes made in 2015, however, limited the role of the Nativity and eliminated Bible readings. It also included the addition of songs and explanations from other religious traditions.The trial court approved the 2015 version and appeals court’s ruling affirms that decision against arguments that the revised version still impermissibly promoted religion in a public school setting.
Here are some excerpts from this fascinating case and opinion. The court emphasizes that the presence of Christmas music and a nativity reference alone do not create an Establishment Clause violation.
Each show must be assessed within its own context. Nevertheless, the nativity story is a core part of Christianity, and it would be silly to pretend otherwise. Many nativity scenes therefore run a serious risk of giving a reasonable viewer the impression of religious endorsement. But in Concord’s 2015 show, the nativity tableau no longer stands out. Instead of serving as the centerpiece for much of the second half and the finale, it has become just another visual complement for a single song.
Without the biblical narration and live nativity, the performance of Christmas carols alone does not inevitably convey a religious message. These songs, played “with regularity” in workplaces and stores and on TVs and radios, have permeated mainstream society
The court did leave a previous injunction against the 2014 version in place, noting that there were no sufficient guarantees that the school district would not return to that performance.
Finally, the court remarked:
The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production. But we accept this position, because we live in a society where all religions are welcome.
In a concurring opinion, Judge Easterbrook took issue with the Supreme Court’s opinions in the area of church-state separation in cases like this one. He writes, in part:
Performing a work of art does not establish that work, or its composer, as the state song or the state composer; no more does it establish a state religion… It takes taxation or compulsory worship to establish a religion; some form of coercion is essential. This is the view of scholars who have investigated what the phrase “establishment of religion” meant in the Eighteenth Century, when these words were adopted.
You can read the entire opinion here.