Tuesday, January 28, 2020
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Federal judge lectures lawyer on sacred music

The US Court of Appeals for the Seventh Circuit will issue a ruling within three months in a case involving a Christmas show that has been produced at an Indiana high school for more than four decades but used to include a live nativity scene that a district court found unconstitutional, Courthouse News reports.

The 90-minute Christmas show at Concord High School in Elkhart also included, in the past, a reading of passages from the Bible telling the story of Jesus Christ’s birth. Mannequins are now used for the nativity scene, following verbal requests from the superintendent. The Bible reading has also been cut back and Kwanzaa and Hanukkah songs have been added to the show.

But although the constitutionality of an endorsement of one religion in a “Christmas” show can’t just be reduced to a formula or dressed up with Jewish or other traditions, a district judge in March said those 2015 modifications were enough.

In October, the American Civil Liberties Union, representing the Freedom from Religion Foundation, was before the Seventh Circuit to appeal that ruling, arguing first that verbal instructions from the superintendent don’t sufficiently replace a formal written policy and, second, that the strong desire from the school community—evidenced by a Facebook poll and large standing ovations during the nativity scene—to revive that tradition could easily make the school venture into unconstitutional waters again.

Performance of sacred music in public high schools

Having studied music at a major public university, I can say that religious music is a huge part of our history. One can’t study four-part voice leading, for instance, without studying the work of JS Bach, and most of his extensive body of work includes religious text. One can’t study choral literature without reading some religious texts.

But ACLU lawyer Gavin Rose told the Seventh Circuit he wasn’t familiar with that part of music history, and that brought bewilderment from the three-judge panel. He did allow, however, that there’s a gray area between performance of religious music in a school play, as this is, and the performance of religious music in a worship service.

Still, he added, this case is different. “Whatever it means to perform religious music in a secular fashion, that is not what this is,” he was quoted as saying. His main argument is that all music students—about half the Concord student population—are required to be a part of the show.

“What about Jesus Christ Superstar as the high school musical?” Judge Diane Sykes asked him. “What about a performance of Bach’s St Matthew’s Passion?” Judge Frank Easterbrook was quoted as asking. “I have to admit, your Honor, I am not familiar with the piece,” the attorney answered, which brought an unusual look from the judge.

“Oh dear, that is a problem,” Judge Easterbrook was quoted as saying. “Well let me just tell you, that during the St Matthew’s Passion, a character called the Evangelist reads the text of the Gospel of St Matthew, and then there are lots of other religious figures. It’s one of the most venerated pieces in the history of music. Not being familiar with it is hard for me to understand.”

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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