CHICAGO (CN) – A venerable Seventh Circuit judge asked an ACLU lawyer Tuesday if a high school performance of Johann Sebastian Bach’s “St. Matthew’s Passion” would violate the U.S. Constitution. Reacting to the lawyer’s unfamiliarity with the piece, Judge Frank Easterbrook said, “Oh dear, that is a problem,” before lecturing the lawyer on the sacred oratorio’s importance as one of the greatest pieces “in the history of music.”
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.
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.
At oral arguments before the Seventh Circuit on Tuesday, ACLU attorney Gavin M. Rose told the court, “The school does not attempt to defend [the 2014] version of the performance, nor could it.”
But he argued that the 2015 changes are “cosmetic at best,” as the performance still requires students to prepare for and perform 24 minutes worth of religious material.
Judge Frank Easterbrook told Rose it sounded like he was asking the court to edit a play.
“I have a lot of trouble with an argument asking us to be a censor,” Easterbrook said. “You’re asking me to be a censor.”
Easterbrook added, “As much as I admire Cato the Elder, that’s not what I’m sure an Article III judge is,” referring to the Roman senator also known as Cato the Censor for his efforts to censor the influence of Hellenic culture in Rome.
Judge Diane Wood asked Rose whether the performance would be constitutional if it provided equal time for other religions.
“I don’t think the Establishment Clause can be reduced to a mathematical formula,” Rose replied. He said the question is whether a reasonable observer would find that the school is endorsing a religious message.
Judge Diane Sykes was primarily concerned with what distinction can be made between worship and a performance of a religious piece of music or play.
“Your claim conflates performance art with worship, essentially saying the two are indistinguishable here,” Sykes said. “That position seems to foreclose any kind of performance art that has a religious basis.”
“What about ‘Jesus Christ Superstar’ as the high school musical?” Sykes asked.
Rose admitted that there is a gray area that makes it hard to exactly define the difference between singing “Silent Night” as part of a worship service and singing it in a high school auditorium.
But he emphasized that the situation in this case is different.
The Christmas Spectacular ends with “a 24-minute telling of the birth of Jesus,” Rose said.
“Whatever it means to perform religious music in a secular fashion, that is not what this is,” he added.
The school’s attorney – Anthony Overholt with Frost, Brown & Todd – urged the Seventh Circuit panel to consider the nativity scene in context. He emphasized that two-thirds of the program is nonreligious, and said the performance includes a Hanukkah song and Kwanzaa song with related projections.
“Are those necessary to the constitutionality of the performance?” Judge Sykes asked.
“It’s just window dressing,” she asserted before Overholt could fully respond. “The production is called the Christmas Spectacular. It’s a Christmas concert, not a Hanukkah concert or a Kwanzaa concert. You added these songs to inoculate the performance from the Establishment Clause.”
Judge Diane Wood wanted to know, if Overholt was concerned about context, why the court shouldn’t look back at the 45-year history of the performance, replete with Bible readings, and hold that against the school’s current claim of non-endorsement.
Overholt argued that a historical perspective supported the school’s position that it has moved away from endorsement of any religion via the changes made to the 2015 performance.
All three judges expressed concern that the school seeks to overturn the lower court’s declaratory judgment regarding the Establishment Clause violations of the 2014 performance, but the school board has enacted no rule to ensure the violations will not occur again.
Overholt sought to convince the panel that the superintendent’s word that there will be no future Bible readings during the performance was enough to safeguard students’ rights, but he could not cite any case where a court found such an informal measure to satisfy constitutional concerns – especially when the Elkhart community may be hostile to the judge’s order.
“The community wants the live nativity scene back, doesn’t it?” Judge Sykes asked.
She referred to an anonymous death threat sent to Freedom From Religion Foundation attorney Sam Grover and a Facebook poll showing that parents want to bring back the live nativity scene.
Overholt said, “You can’t draw from that” what the whole Elkhart community thinks of the issue.
“There was a standing ovation at the 2015 nativity scene, isn’t that right?” Sykes said. “Sustained applause and cheers.”
Overholt admitted, “It is certainly true, that the people who were there…”
“Almost drowning out ‘Holy Night,’” Sykes interrupted, referring to the hymn performed by students after the nativity scene.
On rebuttal, Judge Easterbrook again pressed Rose how strict of a line the ACLU sought to draw on the performance of religious art in a public high school.
“What about a performance of Bach’s ‘St. Matthew’s Passion?’” he asked Rose.
Rose replied, “I have to admit, your Honor, I am not familiar with the piece.”
Easterbrook looked truly appalled at the response.
“Oh dear, that is a problem,” he said. “Well let me just tell you, that during the St. Matthew’s Passion a character called the Evangelist reads the text of the Gospel of St. Matthew, and then there are lots of other religious figures.
“It’s one of the most venerated pieces in the history of music,” Easterbrook continued. “Not being familiar with it is hard for me to understand.”
Rose apologized for his lack of musical knowledge, but went ahead and suggested that perhaps Bach’s sacred oratorio would also raise Establishment Clause concerns.
The court is expected to issue a ruling in the case within three months.