Appeals Court Says Indiana School Can Keep Nativity Scene in Holiday Concert March 23, 2018

Appeals Court Says Indiana School Can Keep Nativity Scene in Holiday Concert

A story that never seems to end just got a little more complicated. So let’s walk through it piece by piece.

In September of 2015, we learned about Concord High School in Indiana, where the holiday concert included a full-blown Nativity Play:

You could even watch it on YouTube:

The Freedom From Religion Foundation wrote a letter to the District at the time warning them against doing it again later that year. Because that was clearly a promotion of religion in a public school.

It is illegal for a public school to endorse religion to students by organizing a religious performance, such as acting out the exclusively Christian legend of Jesus’s birth. The performance has a clearly devotional message and thus would be appropriate in a church setting, but not in a public school…

Centering the high school’s holiday concert around the nativity is illegal even if participation in the nativity scene is voluntary…

The simple solution is for Concord Community Schools to devise a winter concert centered around secular values like family, giving, and community, rather than focusing on the religious aspects of one specific holiday.

While Superintendent John Trout expressed his support for the Nativity tradition, the ACLU and FFRF called for the courts to put a stop to it. It wasn’t long before U.S. District Court Judge Jon DeGuilio issued a preliminary ruling against the District saying they could not have the Nativity Scene in the upcoming concert. Success!

Because the live nativity celebrates a religious message, which a government entity like Concord cannot endorse, DeGuilio ruled, “the Plaintiffs are likely to succeed on the merits on their claim that the inclusion of the living nativity scene in the show, as currently proposed, violates the Establishment Clause.”

“A live nativity is a shocking violation to encounter in a public school, which has no business directing students to engage in devotional, sectarian performances,” said FFRF Co-President Annie Laurie Gaylor. “This decision is a win for everyone who recognizes that there can be no freedom of religious belief without freedom from religion in government and in our public schools.”

It was the right decision as well as an obvious one. It didn’t matter that participation in the Nativity scene was voluntary and that rehearsals took place after school. By including it in the show, it was an endorsement by the school. No other religion received that much air time during the program — and there was no secular purpose for including the birth of Christ in the show. It was also irrelevant that the District, in response to FFRF’s initial letter, promised to include a couple of Hanukkah and Kwanzaa songs and eliminated direct Bible readings. There was still no reason to show the birth of Christ. That’s what churches are for.

Then things got really weird.

In response to the decision, the school decided to use mannequins during the onstage Nativity instead of kids. The songs, however, remained the same. So FFRF and the ACLU sued again… and weirdly enough, Judge DeGuilio went the other way saying the mannequin-filled scene was legal because the kids weren’t involved.

FFRF and the ACLU appealed that decision, and the 7th Circuit finally ruled on the issue yesterday.

The bad news is that the earlier ruling concerning the revised Nativity scene was upheld. Somehow the Nativity portion of the evening is legal.

The court wrongly considered the purpose of the show as a whole and concluded that the purpose was “to entertain the audience and to provide pedagogical opportunities for [the] students.” Since FFRF was not challenging the entire performance, but only the final Christian portion, the court instead should have considered whether the school had a secular purpose in having students sing Christian songs about the birth of Jesus while displaying a nativity scene, which it plainly does not.

The good news is that the Court agreed that the pre-2015 plays using kids in those biblical roles was indeed illegal and the school will have to pay a penalty over it.

… the court also affirmed that the plaintiffs are entitled to damages and a declaratory judgment that prior versions of the show violated the Establishment Clause, calling the live nativity in particular “problematic.”

It’s mixed… but the bigger takeaway is that the current version of the show, with a Nativity scene still in it, remains legal. FFRF and the ACLU are now considering asking the full 7th Circuit to review the case.

The court acknowledged that the show’s blatantly unconstitutional 45-year history affected its analysis, noting FFRF’s point that the school’s mannequin performance was “the same religious program, just with litigation-motivated edits.” But the court bizarrely concluded that the 45 years of promoting Christianity reduced the appearance of religious endorsement in the modified performance because the new version was “a major departure from [previous shows].” This reasoning is backward, since brazenly violating the Constitution for 45 years should lead to greater skepticism of the school’s intent to be neutral toward religion, not less.

It’s definitely a confusing decision even though all three judges agreed on the ruling. On what basis is a Nativity scene not an endorsement of Christianity in the public schools? Why does one religion get this privilege while other religions’ myths don’t get a 24-minute retelling?

I would hope the full Court takes another look at this case.

(Large portions of this article were published earlier)

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