An appeals court decision by a three-judge panel on March 23 in a crucial FFRF Indiana case is a partial victory for our secular Constitution.
Each December, for nearly half a century, the Performing Arts Department of Concord High School in Elkhart, Ind., staged several highly religious nativity performances of its “Christmas Spectacular.”
FFRF and the ACLU of Indiana sued in the fall of 2015 on behalf of parents and students who were ostracized by the annual nativity pageant, which involved students acting out the biblical story while a teacher read aloud from the New Testament. When U.S. District Judge Jon DeGuilio issued a preliminary injunction in late 2015 against the live nativity, the school responded by placing mannequins on stage as a static nativity scene, while students performed the same Christmas songs, albeit without employee-led bible readings.
DeGuilio ruled last year that the live nativity was “an impermissible message of endorsement,” but that the school could continue displaying its static nativity scene. FFRF, the ACLU, and the ACLU of Indiana filed a brief before the 7th U.S. Circuit Court of Appeals contending that, given the previous version of the nativity performance, the modest changes made by the district would be viewed by the public as an attempt to preserve the school’s 45-year tradition of First Amendment abuse.
While the 7th Circuit decision acknowledged that it was a close call and that its ruling was confined to the specific facts before the court, ultimately it upheld the district court’s decision. Although FFRF is disappointed that the court was persuaded by the school’s superficial changes to its longstanding Christian performance, 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.”
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 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.