Written by Don Byrd
A federal judge has ruled in favor of Elkhart, Indiana public schools in a lawsuit over the constitutionality of a school Christmas Spectacular presented by the performing arts department of Concord High School. The show is an annual tradition that in the past has included significant emphasis on performances with a Christian emphasis, including a live nativity scene populated by students as actors.
After a lawsuit was filed challenging the show as a violation of the separation of church and state, the court issued an injunction halting the show as planned, and finding a likely constitutional violation in the show as presented in 2014. In response, the 2015 show was modified to increase the spotlight on other religious holiday traditions, to lessen the Christian emphasis, and to replace the live nativity scene actors with mannequins and limit its presence during the show.
Plaintiffs maintained that the revised show violated the injunction and violated the Establishment Clause’s religious liberty protections. In a ruling yesterday, the court disagreed. While the 2014 violation still demands a remedy, the changes, the judge found, removed the constitutional concerns for the 2015 show.
Here is an excerpt from the opinion:
The portrayal of the nativity scene in the 2015 show was very different. As just noted, the nativity scene was on stage for less than two minutes. It did not span multiple performances, either, as it was only on stage while a choir sang a short version of O Holy Night, and it was not on stage for the conclusion of the show. The scene was also less elaborate than in previous years. Previous shows included almost twenty student actors as part the living nativity scene. Mary and Joseph stood inside the stable behind a manger, with three students on each side dressed in white robes, depicting angels. Students dressed as the three wise men would then walk onto the stage and take their place in front of the nativity scene. In addition, multiple students were spread to the sides of the stage dressed as shepherds. The nativity scene that was actually presented in 2015, though, included only Mary, Joseph, and three wise men, each situated inside the stable set and depicted by mannequins instead of students. When presented in that limited manner, the nativity scene did not stand out from any other portion of the show,
Set against that context, nothing about the presentation of the nativity scene, which likewise provided the visual complement for a single song, drew additional emphasis to or suggested a preference for the nativity. To the contrary, it was presented on par with each of the other performances. Under those circumstances, even though the nativity scene is undoubtedly religious in nature, a reasonable observer would not perceive the show as expressing a preference for the nativity scene or endorsing its religious message.
The ACLU and Freedom From Religion Foundation commented on the ruling in a press release:
FFRF and the ACLU note that staging a nativity scene, live or otherwise, during a school event has no secular or educational purpose. “The nativity scene and the concert’s heavy focus on the religious aspects of Christmas send an exclusionary message to our clients and others that the school prefers Christians over non-theists and people of other faiths,” noted ACLU Senior Staff Attorney Heather Weaver.
The case is still ongoing. Judge DeGuilio has asked the parties to submit supplemental briefing on how to remedy the violations to plaintiffs’ rights occurring in 2014 and earlier. Those issues should be fully briefed by the end of October.
It is unclear whether the judge’s ruling will be appealed. Stay tuned.