Written by Don Byrd
A long-running dispute in Elkhart, Indiana reached a federal court of appeals this week as the 7th Circuit heard arguments over the constitutionality of a public high school’s annual Christmas pageant. A district court previously issued an injunction halting the event as likely unconstitutional after the 2014 show featured a “live Nativity” scene, Scripture readings, and substantial sacred music. The next year’s show, however, the judge upheld as lawful after the school made changes in response to the injunction.
The appeals court questioned whether the changes – including adding songs from other religious traditions, using mannequins for the Nativity scene, removing Bible readings, and shortening the religious portion of the event. They also expressed concern that despite changes, no policies have been put in place to keep the school from returning to the previous version of the show.
Courthouse News provides an extremely helpful, detailed report of the appeals court’s argument. Here are a couple of excerpts:
At oral arguments before the Seventh Circuit on Tuesday, ACLU attorney Gavin M. Rose told the court, “The school does not attempt to defend [the 2014] version of the performance, nor could it.”
But he argued that the 2015 changes are “cosmetic at best,” as the performance still requires students to prepare for and perform 24 minutes worth of religious material.
The school’s attorney – Anthony Overholt with Frost, Brown & Todd – urged the Seventh Circuit panel to consider the nativity scene in context. He emphasized that two-thirds of the program is nonreligious, and said the performance includes a Hanukkah song and Kwanzaa song with related projections.
“Are those necessary to the constitutionality of the performance?” Judge Sykes asked.
“It’s just window dressing,” she asserted before Overholt could fully respond. “The production is called the Christmas Spectacular. It’s a Christmas concert, not a Hanukkah concert or a Kwanzaa concert. You added these songs to inoculate the performance from the Establishment Clause.”
You can hear audio of the oral argument here. A decision is expected sometime next year.