Court upholds ban on [Christian] hymn at Wash. Graduation

[usregimechange]

SEATTLE (AP) -- Barring an instrumental performance of a Christian hymn at a high school graduation did not violate students' First Amendment rights and was within the school superintendent's discretion, a divided federal appeals panel ruled Tuesday.

The 9th U.S. Circuit Court of Appeals' decision in what Judge Richard C. Tallman described as "the legal labyrinth of a student's First Amendment rights" will be appealed to the Supreme Court, a lawyer said.

The case arose a year after a choral performance of the song "Up Above My Head" at the 2005 commencement for Henry M. Jackson High School in Everett, 25 miles north of Seattle. The song, with references to God, angels and heaven, drew complaints and protest letters to The Herald, the town's daily newspaper.

Administrators raised red flags when wind ensemble seniors, who had played Franz Biebl's uptempo 1964 rendering of "Ave Maria" without controversy at a winter concert, proposed a reprise at their graduation in 2006.

School officials said the title alone identified "Ave Maria" - Hail Mary in Latin - as religious and that graduation should be strictly secular.

http://hosted.ap.org/dynamic/stories/U/US_SONG_LAWSUIT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT


Before: Robert R. Beezer, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.

Majority:
Beezer, Robert R. - Nominated by Ronald Reagan on March 2, 1984.
Tallman, Richard C. - Nominated by William J. Clinton on October 20, 1999.

Dissenting in part and Concurring in part:
Smith, Milan Dale Jr. - Nominated by George W. Bush on February 14, 2006.

http://www.ca9.uscourts.gov/datastore/opinions/2009/09/08/07-35867.pdf

[rd_kent]

1. Yay! Score one for separation of church and state!

religion (or anything that promotes it in any way) has no place in government, especially public schools. I am happy with this outcome.

[vadawg]

2. yay score one for the end of civilisation, what other great works of music and art

that are religious based are going to be declared unacceptable.....

[Tangerine LaBamba]

3. Can't do it, dawg -

can't mix religious and secular at events that are taxpayer-funded.

Prime stuff of the First Amendment.

Real basic stuff. Seriously.

[paulsby]

6. so a taxpayer funded philharmornic can't perform

Handel's Messiah?

doubtful.

[paulsby]

4. schools unable to perform Godspell or Handel's Messiah too?

i can see their hesitancy AFTER the previous slapdown they got, and i'll have to read the actual decision before coming to a firm conclusion, but i'm not sure if i go along with the idea that a performance of a work of art that has a religious influence = an "establishment" of religion as per the constitution.

at my school we sang (among others) the dreidl song, here comes santa claus, and several other songs and i don't see how it established religion.

[rd_kent]

7. Here comes Santa Clause is not a religious song.

[paulsby]

8. some have argued it is

as have some about the dreidl song. do you know what the symbols on the dreidel stand for?

(per wikipedia)

"Each side of the dreidel bears a letter of the Hebrew alphabet: נ (Nun), ג (Gimel), ה (Hei), ש (Shin), which together form the acronym for "נס גדול היה שם" (Nes Gadol Haya Sham – "a great miracle happened there").

GET REAL. again, should school orchestras be able to perform handel's messiah? how about publically funded philharmonics?

fwiw, i am not saying i agree or disagree with the decision. i have not read it yet, thus cannot come to a conclusion on the case law.

[rd_kent]

17. I will be the first to admit

that when it comes to xmas stuff, the line between religion and holiday becomes very hard to see. I guess I am just very anti-religious and when I see the courts make what I feel to be a VERY constitutional decision, I get excited about it.

[paulsby]

19. fair enough

there is also a huge intersection between art and religion.

think sistine chapel, for instance.

some of the greatest works of art are at least as religiously inspired as ave maria.

[Iggo]

10. So it's all part of the War On Christmas, eh?

Those clever little atheists.

[paulsby]

15. nice strawman nt

[Iggo]

16. Excellent.

[rd_kent]

18. There is no war on christmas

when xtians decide to chuck all the commercialism and greed and hypocrisy that IS christmas in this country and really make it about the birth of jesus, there is no war on christmas.

[rd_kent]

5. I never said it was unacceptable. Just not appropriate at public school.

Whats the problem here? If we are for the separation of church and state (you are, right?) then there has to be separation. Any loophole left for "music or works of art" (while I wish it could be) would be utilized by the right to get more religion in. IMO, when it comes to religion and separation of church and state, it is an all or nothing deal.

[usregimechange]

13. Please read the ruling before making a conclusion.

[usregimechange]

9. Context:

Prior to the 2005 graduation ceremony, newly-hired JHS
principal Terry Cheshire (“Cheshire”) reviewed the titles of
all musical selections to be performed for the audience of students,
family, and friends. Seeing no issue with any piece proposed
by the school’s musical directors, Cheshire approved
the performance of all requested selections. At graduation, the
student choir performed “Up Above My Head,” a vocal piece
which included express references to “God,” “heaven,” and
“angels.” Immediately following graduation, the District
received complaints from graduation attendees regarding the
religiously-themed musical selections, and the local newspaper,
The Everett Herald, printed indignant letters to the editor
complaining about religious statements included in the ceremony’s
music performed before the audience.

As the 2006 graduation neared, Cheshire again previewed
the titles to each ensemble’s musical selections for the ceremony.
In keeping with her three-year tradition, the high
school band director, Leslie Moffat (“Moffat”), permitted the
graduating members of her Wind Ensemble to select a piece
from their musical repertoire which they wished to perform
during the ceremony. Though all three previous classes had
selected “On a Hymnsong of Philip Bliss,” the 2006 graduates,
including Nurre, chose instead to perform “Ave Maria,”
which they believed showcased their talent and the culmination
of their instrumental work. Moffat sent this title and other
graduation selections—including, inter alia, “Pomp and
Circumstance”—to Cheshire for approval. Cheshire immediately
recognized “Ave Maria” as a religious piece. Recalling
prior complaints over the 2005 religious musical selection,
instead of approving them, he forwarded the lists on to the
District’s associate superintendent Karst Brandsma
(“Brandsma”).

Ibid.

[usregimechange]

11. More detailed description of the holding, refuting starwmen by the Bush Appointee:

Contrary to Judge Milan Smith’s understanding of our
holding, we do not seek to remove all religious musical work
from a school ensemble’s repertoire. Nor do we intend to substantially
limit when such music may be played. We agree
with him that religious pieces form the backbone of the musical
arts. To ignore such a fact would be to dismiss centuries
of music history. Instead, we confine our analysis to the narrow
conclusion that when there is a captive audience at a
graduation ceremony, which spans a finite amount of time,
and during which the demand for equal time is so great that
comparable non-religious musical works might not be presented,
it is reasonable for a school official to prohibit the performance
of an obviously religious piece.

[usregimechange]

14. Making the title of this thread inaccurate...

[usregimechange]

12. You need to read their application of the Lemon test...