Drakeman, “An Establishment Clause Miracle Story”

Don Drakeman, Distinguished Research Professor at Notre Dame and a member of our Board of Advisors here at the Center for Law and Religion, wrote us recently to pass along this wonderful story about an obscure Christmas carol and our current, perhaps even more obscure, Establishment Clause jurisprudence. We take great pleasure in posting Don’s essay below, and in wishing all our readers a very Merry Christmas, a peaceful holiday season, and a Happy New Year!

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The holidays are a time for inspiring stories, and where better for Law and Religion Forum readers to turn than the Establishment Clause?

            During some family caroling, my daughter Cindy and her husband Richard introduced me to Franz Biebl’s Ave Maria, a breathtakingly beautiful choral work.  This isn’t the famous version by Schubert you hear this time of year.  It’s the one by an obscure 20th century German composer, who spent most of WWII as a POW in Michigan.  The composition is completely different from the Schubert piece, and you’ll only recognize it if you get your music via NPR.

            Herr Biebl’s Ave Maria has become our inspirational story thanks to the 9th Circuit’s 2009 decision in Nurre v. Whitehead.  The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental version of Biebl’s piece because they thought it would “showcase their talent.”  But the Biebl was nixed by the school administrators on the grounds that “the title and meaning…had religious connotations and would be easily identified as such by attendees.”  The 9th circuit backed them up, saying that the school’s action was an appropriate way to avoid an Establishment Clause problem. 

As far as I can see, the court’s decision required a series of miracles, each involving a degree of faith in the education of America’s youth that, as the KJV might say, “passeth all understanding.”

            The First Miracle:   That anyone was listening.  As a veteran high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music.  The chance that any of them would think, “Wow, what a great piece!  I’ll check the program to see what it’s called” rounds to zero.  But, in this season of miracles, let’s say they did, and learned that it was named Ave Maria.

            The Second Miracle:  That the seniors had any idea what “Ave Maria” means.  I would like to share the judges’ faith that the seniors were well versed in Latin.  Yet, even if they were, Biebl’s effect would more likely be something like this:

            Football Captain:  Are you waving at the band?

Head Cheerleader:  Yes, they are playing that for me.  It’s called, “Hey, Mary.”  Didn’t you pay attention in AP Latin?

            Football Captain:  You have to stop skipping Latin Club meetings.  The Romans didn’t say “Hey,” they said, “Hail.”   This song is in honor of my “Hail Mary” touchdown pass in the championships.

High School football may inspire religious-like devotion, but at least so far, not enough to violate the Establishment Clause.

            The Third Miracle:  That there could possibly be a “primary effect” of advancing religion under the 9th Circuit’s use of the Lemon Test.  In other words, someone had to pay attention to the band, consult the program to learn the title, understand its meaning and religious significance, and then have a sufficiently religious experience that the instrumental rendition of the piece during graduation had a primary effect of advancing religion.  But, if you think about it, we don’t see people falling to their knees in prayer when they hear Josh Groban’s Ave Maria at the mall, and his version actually has words.  Besides, the students most likely to manifest this third miracle involving a traditional Catholic prayer are the Catholic ones, and they were more likely to be graduating from the large Catholic high school just five minutes away.

            Justice Alito called this decision “troubling” in his cert. denial dissent, but I prefer to see it as an inspiring story of faith in our educational system, where classically educated seniors listen to the wind ensemble with rapt attention, and find their religious beliefs profoundly deepened by the simple trigger words, Ave Maria.

            On that inspirational note, if you are seeking to brighten your Christmas season, look no further than Chanticleer’s rendition of Biebl’s Ave Maria on YouTube.  We have it on good authority that it will be a religious experience.

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Don would like to thank Cindy Drakeman and Richard Wanerman, who not only introduced him to Biebl, but who also appear on this year’s Grammy-nominated recording of the world premier of Kastalsky’s Requiem.  Since the Requiem includes the hymn Rock of Ages, he hopes the Grammys do not get any federal funding because the awards are being given in the 9th Circuit.

Armenia’s Future

In First Things today, I have an essay on the Second Karabakh War: what happened, why it happened, and Armenia’s path for the future. Here’s an excerpt:

Notwithstanding the loss of territory and the terrible loss of life, Armenians should resist despair. Armenia’s history is very long, and things have looked bleak at many points—for example, when the Persians defeated Armenians at the Battle of Avarayr in the fifth century, when Arabs invaded in the seventh, when Turks invaded in the eleventh, and when Mongols invaded in the fourteenth. More recently, there was the 20th-century genocide after which, improbably, Armenians succeeded in reestablishing a state for the first time in several hundred years. 

In the wake of the Second Karabakh War, Armenians need to evaluate their mistakes—especially their misguided optimism about support from Western governments and human rights organizations—accept certain realities, and work to rebuild. Notwithstanding a calamitous history filled with injustice, Armenians have preserved a distinct and continuous Christian witness in the Caucasus for millennia. With God’s help, they will survive this most recent defeat as well. 

You can read the whole essay here.

2020 Year-End Message

This has been a productive year for our Center, featuring regular Legal Spirits podcasts; our biennial colloquium in law and religion; a student reading society; and articles and appearances by Center Co-Directors Marc DeGirolami and Mark Movsesian. You can read all about it in our annual year-end message, here. Happy Holidays!

Movsesian Named Co-Editor of the Journal of Law and Religion

We are delighted to announce that the Journal of Law and Religion (Cambridge University Press) has named Center Co-Director Mark Movsesian to its board of editors. Professor Movsesian will assist the interdisciplinary, peer-review journal in selecting and developing articles for publication.

“I am grateful for the invitation and am delighted to join the Journal‘s editorial board,” Professor Movsesian said. “I look forward to helping the journal continue to explore issues at the intersection of law and religion, both domestically, in the United States, and across the globe.”

More information about the Journal and its editorial board is here.

Moscow State University Roundtable

I was delighted to speak at a roundtable on law and religion at Lomonosov Moscow State University this morning, along with faculty colleagues from Russia, Greece, Canada, Italy and Israel. Comparative studies add so much to the understanding of church-state issues, and it is always striking how the same issues come up in so many cultures–though not the same answers. The questions from other scholars and the student participants were great. Thanks for Prof. Gayane Davidyan at Lomonosov for inviting me!

UPDATE: For anyone interested, Lomonosov has now posted the YouTube Video of the event:

Christianity and Conservatism’s Multiethnic Future

At the First Things site today, I have an essay on how a broad, ecumenical Christianity will feature in a new, multiethnic conservative movement. Here’s a sample:

The factors Salam identifies no doubt figure in minorities’ increasing affinity for conservative politics. But I think his explanation misses another important factor: conservative Christianity. The media typically presents conservative Christians as monolithically white, but that is not the case. For example, about one-quarter of evangelicals are members of racial and ethnic minorities, and Republicans apparently did very well among them. According to Gaston Espinoza, a researcher at Claremont McKenna College who conducted a survey of Latino voters, it was “Latino evangelicals” who “helped Trump to do better than anyone expected in Texas … and in Florida.”

I don’t know of studies that analyze minority voters in terms of church attendance, but in the general population, religious observance correlates with voting for the GOP, and that pattern presumably holds for many minorities as well. According to the AP Vote Cast Survey, people who attend church regularly—up to a few times a month—broke solidly for Trump, 54 percent to 45 percent. People who attend church once a week or more voted 61 percent for Trump. By contrast, people who never attend church went strongly for Biden, 63 percent to 32 percent. (This last figure is consistent with surveys that reveal that more than two-thirds of Democrats “never attend religious services.”) To be sure, differences exist among minority communities; black Christians, for example, continue to vote Democrat in very large numbers. Still, it is reasonable to think that, with respect to minorities, as with respect to the American public generally, the religiously observant tend to vote Republican.

If Republicans are to become a multiethnic, middle-class movement, a popular, ecumenical Christianity of the sort I observed at the Museum of the Bible will likely have an important place in it. In fact, the religious identity of the movement need not be exclusively Christian. Americans are famously non-sectarian when it comes to public religion, and it’s possible to imagine a political coalition of the traditionally religious from all faith communities. Although good studies are difficult to find, some suggest that Orthodox Jews increasingly vote Republican. And President Trump drew one-third of Muslim voters in 2020, a large increase over 2016.

You can read the whole essay here.

Law & Religion Roundtable at Lomonosov-Moscow State (Nov. 25)

A programming note: on Wednesday, November 25, I will participate in a roundtable on law and religion sponsored by the Faculty of Law at Lomonosov Moscow State University. The roundtable, organized by Lomonosov Professor Gayane Davidyan, will take place online starting at 17:30 Moscow time. Visitors are welcome. Please use the You Tube link here. The roster for the roundtable, along with the titles of the presentations, is below. Stop by and say hello!

  • Mark Movsesian, Frederick A. Whitney Professor, Co-Director of Center for Law & Religion, St. John’s Law School, United States, Church-State Cases at the US Supreme Court in 2020
  • Lina Papadopoulou, Associate Professor, Law School, Academic Coordinator of the Jean Monnet Centre of Excellence “European Constitution and Religion”, Aristotle University of Thessaloniki, Greece, God and the Constitution in a country (Greece) with a prevailing religion
  • Andrea Pin, Associate Professor, Department of Public, International and Community Law, University of Padua, Italy, The Constitution as an ID
  • Kathryn Chan, Associate Professor, Faculty of Law, University of Victoria, Canada, The source and scope of religious freedom in Canada
  • Xavier Barre, Ph.D in Law, Avocat au barreau de Paris, Member of New York Bar and Advocat of Moscow Regional bar
  • Anton Kanevsky, Associate Professor of Higher School of Economics, Moscow, Russia, Attorney in Jerusalem, The Divine Name in Earthly Affairs: Non-specific Talmudic Legal Principles and Israeli Practice
  • Gayane Davidyan, Associate Professor, School of Law, Lomonosov Moscow State University, Director Center of Law and Religion, Can God be Constitutional?

Movsesian on the Karabakh Crisis

For those who are interested, at the Law & Liberty site today, I have an essay on the Karabakh War, now one month old. I argue that the war represents a civilizational clash between democracy and dictatorship and suggest what American can do to ease the crisis. Here’s an excerpt:

America should consider a range of options to help ease the Karabakh crisis, none of which would involve America as a participant in the conflict. First, it can send humanitarian assistance to the region, indirectly if necessary. Second, it can suspend the direct or third-party sale or transfer of military equipment and technology to Azerbaijan. America provided $100 million of military aid to Azerbaijan just in 2018 and 2019, much more than to any other country in the region, ostensibly to help Azerbaijan defend itself against Iran. With Azerbaijan openly purchasing weapons from Iran, that strategy seems counterproductive. America can also suspend military sales and transfers to Turkey while Turkey continues its belligerent policy in Karabakh and elsewhere. If this doesn’t work, America could impose sanctions on both countries.

Finally, America can continue to push Azerbaijan to cease hostilities, return to negotiations, and reach a diplomatic settlement of Karabakh’s status. (After agreeing to one US-brokered ceasefire last weekend, Azerbaijan immediately broke it.) A comprehensive settlement has been in sight for decades: Armenia returns most captured territories to Azerbaijan and allows refugees to return in exchange for some sort of independence for Karabakh. Michael Rubin argues in The National Interest that America should support this idea, which has a precedent in Kosovo: “remedial secession” to protect an endangered minority. After weeks of cluster bombing, not to mention the history of pogroms and other crimes, Karabakh Armenians can never be safe under Azeri rule.

You can read the whole essay here.

Video of Last Week’s Panel on the Caucasus

For those who are interested, the St. John’s University Institute for International Communication has posted a video of last week’s panel, “The Crisis in the Caucasus,” on the war in Karabakh. I participated, along with Alek Gevorkyan (St. John’s), Artyom Tonoyan (University of Minnesota), and Siobhan Nash-Marshall (Manhattanville College). Kudos to St. John’s Law 2L Isabel Arustamyan for helping to put it all together. The link is below:

Panel on the Crisis in the Caucasus

A programming note: this coming Wednesday (October 21), I will participate in a panel here at St. John’s University on the war in Karabakh, “The Crisis in the Caucasus.” Other panelists include Siobhan Nash-Marshall (Manhattanville College) and Artyom Tonoyan (University of Minnesota). The event, which will cover the history of the conflict, its religious implications, and its importance for the international human-rights community, is sponsored by the university’s Institute for International Communication. Details and login information are available at the link.