Appeals judge: Public schools need to do more than stage play with religious content to 'establish' religion

By Karen Kidd | Mar 29, 2018

CHICAGO — Concord Community Schools in Indiana would have to do more than put on a play with religious content to "establish" a religion, a federal appeals court judge in Chicago said in his special concurrence to a court decision that recently upheld the public school's annual "Christmas Spectacular."

"It is not sound, as a matter of history or constitutional text, to say that a unit of state or local government 'establishes' a religion through an artistic performance that favorably depicts one or more aspects of that religion's theology or iconography," U.S. Seventh Circuit Court of Appeals Judge Frank H. Easterbrook wrote in his special concurrence. "The Concord Community Schools would not violate the Constitution by performing Bach's 'Mass in B Minor' or Handel's 'Messiah,' although both are deeply religious works and run far longer than the nativity portion of the 'Christmas Spectacular.' 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."

Easterbrook's special concurrence came at the end of the Seventh Circuit's 26-page decision on March 21 in which a panel of three appeals judges ruled the Elkhart, Ind. public school district's annual Christmas production has changed enough to avoid the constitutional prohibition of "establishing" a religion.

The appeals court affirmed a lower court ruling that Concord Schools Christmas production, in its present form, is constitutional. 

"The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production," the appeals court decision said. "But we accept this position, because we live in a society where all religions are welcome. The district court found that the Christmas Spectacular program Concord actually presented in 2015 - a program in which cultural, pedagogical and entertainment value took center stage - did not violate the Establishment Clause."

Seventh Circuit Chief Judge Diane P. Wood wrote the decision for the appeals court, and Judge Diane S. Sykes and Judge Easterbrook concurred.

Concord High School had been staging its annual Christmas program, beginning with pieces such as "Winter Wonderland" and "Secret Agent Santa" and ending with the "The Story of Christmas" for about 45 years until the summer of 2015, according to the background portion of the appeals court's decision. That summer, Madison, Wis.-based Freedom From Religion Foundation wrote a letter to the high school's principle objecting to the show and later filed a lawsuit that claimed the annual production violates the Establishment Clause of the First Amendment.

A little more than a year ago, the U.S. District Court for Indiana's Northern District ruled Concord Schools had made enough changes in its annual program to steer clear of the Establishment Clause and there was no need to judicially police future productions. 

"Conversely, tailoring a permanent injunction to all of the circumstances of these shows that made them unlawful with enough specificity to apprise the school of what conduct is prohibited would be unduly complicated," District Court Judge Jon E. DeGuilio said in that March 6, 2017 ruling. "If it were more likely that the school would present these versions of the show in the future, some sort of injunction might be warranted despite these obstacles. But as it stands, the court need not choose between a permanent injunction that is simple but overbroad and one that is narrow but minutely detailed."

While agreeing with the district court's conclusion, Judge Easterbrook said he had a harder time feeling good about most court decisions in similar cases. 

"Although the Concord Community Schools have not violated the Constitution, the judiciary's performance is harder to defend," he said. "Federal judges have picked through a performance to choose among elements with religious significance. Preventing that sort of entanglement between the judiciary and religious expression is a main goal of the First Amendment - yet we are at it again, playing the role of producer to decide which material, representing what religious traditions, may appear in a choral performance."

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Freedom From Religion Foundation U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Indiana South Bend Division

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