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.