Seventh Circuit Approves High School’s Christmas Concert

CHICAGO (CN) – The Seventh Circuit found an Indiana high school’s Christmas Spectacular concert constitutional after the school added Hanukkah and Kwanzaa songs and replaced its live nativity with mannequins.

“The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production,” U.S. Circuit Judge Diane Wood wrote for a unanimous panel in Wednesday’s ruling. “But we accept this position, because we live in a society where all religions are welcome.”

For the last 45 years, the students of Concord High School in Elkhart, Ind., have put on a winter Christmas Spectacular concert. Until 2015, the 90-minute performance included a live nativity scene and a reading of passages from the Bible telling the story of Jesus Christ’s birth.

About half of the school’s students are enrolled in band, orchestra, choir or dance classes, and all of these students are required to perform in the Christmas musical.

The performance opens with secular wintertime holiday songs such as “Jingle Bells,” “Here Comes Santa Claus,” and “Let It Snow,” but after intermission turns to more traditional hymns such as “Christ in the Manger,” and “Hark! The Herald Angels Sing.”

The Freedom From Religion Foundation and ACLU of Indiana sued the school in October 2015 over the event, claiming it “represents an endorsement of religion by the high school and the school corporation, has no secular purpose, and has the principal purpose and effect of advancing religion,” in violation of the U.S. Constitution’s Establishment Clause.

After the filing of the lawsuit, the school changed its 2015 performance, omitting the readings from the Bible and adding a Hanukkah song and a Kwanzaa song. It also used mannequins instead of student performers to portray the Christian nativity scene, and cut the stage time for the nativity scene from 12 minutes to two minutes.

The Elkhart community was not pleased with having to make these changes however, and the plaintiffs’ attorney Sam Grover even received an anonymous death threat related to his work on the case.

A federal judge found in March that the 2014 show was an unconstitutional endorsement of Christianity by a public school, but said the 2015 show was sufficiently secular to pass muster.

The Seventh Circuit affirmed that finding Wednesday, after hearing oral arguments in October.

“The religious nature of the nativity and the songs do not come off as endorsement in part because they make up only a fraction of the Spectacular, which as configured in 2015 is primarily a non‐religious seasonal celebration,” Wood said. “The Santas, jingle bells, and winter wonderlands of the first half all promote the secular aspects of the holiday season.”

The panel accepted the school’s argument that the primary purpose of the concert was to provide a performance opportunity for students in the high school’s performing arts department – not to celebrate the Christian Christmas holiday.

“The second half [of the concert] taken as a whole provided musicians and singers multiple opportunities to learn pieces and perform. This would have been an easier case if the Christmas Spectacular had devoted a more proportionate amount of stage time to other holidays. But ultimately, we agree with the district court that in 2015 Concord sincerely and primarily aimed to put on an entertaining and pedagogically useful winter concert,” Wood concluded.

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