To all who celebrate tomorrow, Merry Christmas!
Merry Christmas
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.
Around the Web
Here are some important law-and-religion news stories from around the web:
- President Trump signed an Executive Order on Strengthening the Child Welfare System. The Order encourages “close partnerships between State agencies and nongovernmental organizations, including public, private, faith-based, and community groups.”
- The U.S. Department of Justice filed a RLUIPA action against Stafford County, Virginia, claiming it blocked the creation of what would have been a Muslim-owned cemetery in the county.
- The U.S. 5th Circuit Court of Appeals dismissed as moot a constitutional challenge to Louisiana Governor John Bel Edwards’ COVID-19 order that restricted in-person church services to ten congregants.
- An Illinois federal district court awarded statutory damages of $1 million to the Chicago Rabbinical Council (“cRc”) in its suit against a company that had falsely applied a cRc logo to its food products, wrongfully indicating that they had been approved as kosher.
- The Knights of Columbus filed suit in a Delaware federal district court challenging Rehoboth Beach’s policy of allowing only secular Christmas displays at the city’s Bandstand Circle.
- The Ohio legislature gave final passage to the Student Religious Liberties Act, which provides in part that a student enrolled in a public school may engage in religious expression before, during, and after school hours in the same manner and to the same extent that a student is permitted to engage in secular activities or expression before, during, and after school hours.
- Saudi Arabia’s Ministry of Hajj and Umrah stated that the Hajj this year will be extremely limited because of the coronavirus pandemic.
Merry Christmas
For all who celebrate this day, a very Merry Christmas!
France: Guerres de Noel
At the First Things site, I have an essay (“Crèche Clash“) on the continuing Christmas Wars in France. The Conseil d’Etat, France’s highest administrative court, recently ruled on the legality of the Nativity scenes that many French municipalities display every December. Although it didn’t cite any American cases, the French court relied on the same test American courts have developed to determine the constitutionality of Christmas displays in this country, the so-called endorsement test:
The Conseil begins by stating that laïcité forbids “any display by public authorities of signs and symbols showing a public recognition or a preference for a given religion.” A Christmas crèche poses a difficult case. Although a crèche can convey a religious message, it also has a non-religious meaning as a familiar seasonal decoration. One message is forbidden for the state, the other acceptable. Display of a crèche by a public authority is therefore legal, the Conseil declares, “only” where the crèche “has a cultural, artistic or festive purpose, but not if it expresses” recognition of or preference for a religion. To determine the meaning of a display, one must consider the particular circumstances, “including the existence or the absence of local traditions and the location of the display.”
Readers familiar with the American case law will recognize this as a version of the “endorsement test” our own courts use to evaluate the constitutionality of public nativity scenes. Under the test, first proposed by Supreme Court Justice Sandra O’Connor in a 1984 case from Pawtucket, Rhode Island, a display violates the Establishment Clause if it amounts to an official endorsement of religion, that is, if it suggests that the government approves a particular religious message (or disapproves such a message, though that issue does not regularly arise). Official endorsements make non-adherents feel like second-class citizens, the reasoning goes—like less than full participants in the political community. As a consequence, such endorsements violate the Constitution.
In the essay, I argue that the French version of the endorsement test turns out to be just as confusing as the American, with many of the same deficiencies–including its tendency to outlaw traditional features of public life. You can read the essay here.
Bowler, “Christmas in the Crosshairs”
In October, Oxford University Press will release Christmas in the Crosshairs: Two Thousand Years of Denouncing and Defending the World’s Most Celebrated Holiday by Gerry Bowler (King’s College). The publisher’s description follows:
An Anglican priest hands out brass knuckles to his congregation, preparing to battle anti-Christmas fanatics. Fascists insist that the Winter Solstice is the real Christmas, while Communists stage atheist musicals outside of churches on Christmas Eve. Activists vandalize shops that start touting the holiday in October and anti-consumerists sing parody carols in shopping malls. Is there a war on Christmas? As Gerry Bowler demonstrates in Christmas in the Crosshairs, there is and always has been a war, or several wars, on Christmas.
A cherished global phenomenon, Christmas is the biggest single event on the planet. For Christians it is the second-most sacred date on the calendar, but it also engages billions of people who are caught up in its commercialism, music, sentiment, travel, and frenetic busyness. Since its controversial invention in the Roman Empire, Christmas has struggled with paganism, popular culture, and fierce Christian opposition; faced abolition in Scotland and New England; and braved neglect and near-death in the 1700s, only to be miraculously reinvented in the 1800s. The twentieth century saw it banned by Bolsheviks and twisted by Nazis. Since then, special interest groups of every stripe have used the holiday’s massive popularity to draw attention to their causes.
Christmas in the Crosshairs tells the story of the tug-of-war over Christmas, replete with cross-dressing priests, ranting Puritans, and atheist witches. In this eye-opening history of Christmas and its opponents from the beginning up to the present day, Bowler gives us a shocking, and richly entertaining, new look at the tradition we thought we knew so well.
Guerres de Noël
I used to think that the annual Christmas Wars were strictly an American thing, like corn dogs and and attorneys’ contingency fees. Only in America, I thought, do people seriously argue about whether to allow Christmas trees in public parks or to permit public school choirs to sing “Silent Night” at holiday concerts. The issues become more and more bizarre. This year, a Maryland school district decided to remove even a reference to “Christmas” in the school calendar–as though the reference amounted to religious oppression and removal would make people forget what holiday comes round every 25th of December.
Our Supreme Court, whose Establishment Clause jurisprudence focuses on factors like the presence of plastic reindeer and talking wishing wells, bears much blame for this state of affairs. But judges in other countries seem eager to replicate our model. Last week, a French administrative court ruled that the town of La Roche-sur-Yon–located, appropriately, in the historically royalist, counter-revolutionary region of the Vendee–must remove a Christmas crèche from its city hall. The court held that the crèche violates the 1905 French Law on the Separation of Church and State, which, according to the court, forbids religious displays like crèches on public property. According to news reports (in French), the court concluded the display was incompatible with the principle of state religious neutrality, or laïcité.
I don’t know enough about French administrative law to evaluate the decision. What I find fascinating, as an outsider, is how closely the French debate tracks the American. The lawsuit seeking removal of the crèche was brought by a secularist group called the “Fédération de la Libre Pensée,” which, I gather, is analogous to American groups like the Freedom from Religion Foundation and American Atheists. The group argues that the crèche “fails to respect the conscience of the citizen” by “imposing” on him a religious display whenever he enters city hall. In response, the town’s supporters evoke cultural traditions more than Christianity. Religious neutrality, they say, does not require abandoning longstanding French customs. What’s next, they ask? Church bells and Christmas lights? They’ve started a popular hashtag campaign, #TouchePasAMaCreche.
Each side has to live with its ironies. Notwithstanding the rhetorical commitment to laïcité, French law allows a great deal of entanglement between church and state–more, in some respects, than we would tolerate in the US. (Guess who owns Notre Dame and all other church buildings that existed as of 1905? Hint: it’s not the Church). On the other hand, the defense of tradition in this case rings somewhat hollow. La Roche-sur-Yon only began displaying the crèche 22 years ago.
The city has vowed to appeal the decision. I’ll keep you posted. Meanwhile, here’s a thought. If France has adopted the Christmas Wars, can Black Friday be far behind?
Removing Christmas (and Everything Else) from the School Calendar
Here’s a lesson in how to irritate everybody. Last week, the Board of Education in Montgomery County, Maryland, a wealthy suburb of Washington, DC, voted to remove references to religious holidays from its public school calendar. Starting next year, students will have off for “Winter Break” rather than Christmas, “Spring Break” rather than Easter, and two unnamed holidays rather than Rosh Hashanah and Yom Kippur. The decision came after a Muslim group requested that schools also close for a Muslim holiday, Eid al-Adha. Rather than declare Eid a holiday, the board decided to remove religious references altogether.
The board apparently believed that retaining the names of religious holidays is constitutionally problematic. That is not so. Naming school holidays after widely celebrated religious observances does not violate any of Supreme Court’s many Establishment Clause tests, even the so-called endorsement test. Consider Christmas, for example. Closing on December 25 does not endorse the religious meaning of the holiday. It simply acknowledges the fact that most students and staff would stay home. And as everybody, including the state and federal governments, refers to the holiday as Christmas, it’s natural for the school calendar to do the same. In fact, expunging the word “Christmas,” after it has been in the calendar for so long, suggests hostility to the religious meaning of the holiday. Such a suggestion itself creates problems under the endorsement test.
What about the fact that the schools recognize the holidays of some religions, but not others? Doesn’t that suggest hostility for religions the schools ignore? Obviously some Montgomery Country Muslims took it that way, and one must respect their feelings. But there’s a very good administrative reason why Montgomery County schools don’t close on Eid. Only about 1% of the county’s population is Muslim. There are simply not enough Muslim students and staff to justify closing the schools–just as there are not enough Hindus to justify closing schools on Hindu holidays, or Buddhists to justify closing schools on Buddhist holidays. That’s not a reflection of disrespect for those religions, but an acknowledgement of demographic reality. It’s worth noting that the Montgomery County schools excuse absences for Muslims who observe Eid.
I could explain why the other Establishment Clause tests also would allow schools to close for some religious holidays but not others, but there’s no point belaboring things. The Constitution does not require what the board did. But the board’s decision is worse than wrong; it’s pernicious. Striking the names of religious holidays has only served to create religious conflict. Many Christians and Jews have expressed dismay, as has the Muslim organization that requested the Eid holiday in the first place. That organization now worries, not implausibly, that angry parents and students will blame Muslims for the board’s decision. That would be unfair. The organization didn’t ask the board to rename these other holidays; that was entirely the board’s doing. But many people will ignore that fact.
In a pluralistic society like ours, respect is a crucial value. Respect for religious traditions other than one’s own promotes harmony and social peace. But recognizing a religious holiday that many students and staff observe doesn’t express disrespect for other religions, and the board’s decision to rename Christmas–as well as the other holidays–has done nothing to promote religious harmony. The board has created an entirely unnecessary, uncomfortable situation in which everyone feels aggrieved. One could hardly call that progress.
Merry Christmas
To all who celebrate today, a very Merry Christmas. Now bring us some figgy pudding.
Religious Knowledge Quiz
Relatives staying too long? Christmas tree lights breaking out of the box? Johnny Mathis starting to get on your nerves? If you need a break from all the holiday cheer, take the US Religious Knowledge Quiz, sponsored by Pew. Afterwards, you can look up the results of the actual survey and see how you compare with the American public. (H/T: Perry Dane.)