Just in time for the holidays, the 3rd Circuit affirmed a lower court's ruling that a New Jersey school district's ban on religious music at concerts in constitutional, despite plaintiff's charge that the policy amounts to government hostility to religion. And it's a good thing, too. As Judge Dolores Sloviter's opinion notes, finding for the plaintiff would amount to telling schools there is no such thing as a neutral policy with respect to religion.
This point is elaborated in the Amici’s brief which states that “Establishment Clause jurisprudence recognizes that neutrality towards religion is quite distinct from hostility towards it.” The brief cites an Eleventh Circuit opinion that states that “[a] contrary conclusion would ‘totally eviscerate the establishment clause.’” (…Smith v. Bd. of Comm’rs). Smith also quoted a Ninth Circuit case, Grove v. Mead Sch. Dist., which stated that “distinctions must be drawn to recognize not simply ‘religious’ and ‘anti-religious,’ but ‘nonreligious’ governmental activity as well.’” As the Amici note:
"Were that not the case, almost every government action vis-a-vis religion would fall into one of two columns –pro- or anti-religion, promoting or hostile to – and be subject to Establishment Clause attack in either event. That is the logic of Plaintiff’s legal theory…"
Numerous courts have rejected the suggestion that “secular” means “anti-religious.”
We reject [plaintiff Michael] Stratechuk’s argument that the fact that numerous students and parents have petitioned the school board and strongly urged it to reverse its policy “demonstrat[es] beyond genuine dispute that a reasonable observer could only perceive that the policy disfavors religion.” The constitutionality of a school board’s policy toward religion cannot be decided by reference to popular opinion.
Plaintiffs here would like to see the government restricted not by the First Amendment, but by public outcry. And if school officials were to deny such a demand to use public schools to promote religion, in this view, they would be guilty of "establishing" an anti-religious stance. Schools could simply not function in such an environment. Every policy with remotely religious impact would face immediate lawsuit, and probably from both sides simultaneously. At holiday concerts, we could just have tables ready for parents to sign on to the legal challenge of their choice on the way in, if the court were to go for this legal theory.
School administrators have a small enough margin for error as it is, in this arena. Most are trying to do the right thing, ensure compliance with the law, and find ways to allow appropriate religious expression without improperly promoting religion. Policies that seek to maintain a neutral stance toward religion aren't evidence of an institutional hostility toward religion; they are evidence of an embrace of the Constitution.
