Thursday, November 11, 2010

No Mandate for Christmas Carols, continued

When U.S. District Judge William Walls allowed the South Orange Maplewood (SOMS) school district to drop the carols from its December concerts, Richard Thompson got mad.
Thompson is President of the Thomas More Law Center (TMLC), which sued SOMS to restore the carols.
World Net Daily quoted Thompson, "This anti-religious policy is yet another example of the militant hostility that many public schools have towards Christians and Christmas."
"Traditional Christmas music has long echoed in the halls and auditoriums of our nation's public schools, reflecting our national celebration of this holiday season. Unfortunately, our recent history has not been so favorable to this holiday and its traditions. Even the word Christmas itself is becoming a forbidden expression – a casualty to the forces of political correctness that consider it enlightened, if not outright fashionable, to remove all traces of religion from the public domain.
"If we do not stop these policies now, it is likely that they will continue to spread across our nation like an anti-Christian virus. This is an important case; it will likely decide the fate of one of our most cherished traditions," he said.
Thompson was the O’Reilly Factor guest who instigated the suit with his call for a SOMS plaintiff.
Muise appealed to the U.S. Third Circuit Court of Appeals. He told the New Jersey Jewish News (NJJN), “We are seeing an anti-Christian shift in the public schools and their long-held traditions. I think if we prevail, hopefully we can stem the tide in school districts like Maplewood-South Orange.”
He said “I like our chances.” He believed the appellate court would be sympathetic to 15 volumes of evidence he would submit for review. 
Did Muise think the New Jersey Jewish News wanted the public schools to celebrate Christmas?
Several Jewish groups joined in an amicus brief in support of SOMS. The amici included the national organizations of two MCPEARL local groups, the National Council of Jewish Women and the American Jewish Congress (AJCongress).
Marc Stern of the AJCongress told the NJJN that his opponents’ “very hard-line view” would “make it easier” for the amicus position to prevail.
“In this case, we will be arguing that courts ought to defer to school officials’ judgment,” Stern said. “They have not banned religious music altogether. They have simply asked, ‘Under what circumstance is it played?’ If it is in a clear and immediately evident educational context, you can clearly play religious music, but not if it is in a celebratory event like an assembly.
“Not only do you have arguments about what the Constitution requires, you can argue about judicial deference to educational judgment. So in general that makes our case easier to do.”
Muise told World Net Daily that win or lose, he would continue pressing his case for Christmas carols in public schools.
“If we don’t prevail, then I think that trend is going to continue until we get another case, battle it, and perhaps prevail,” he said.
The Local, a newspaper that covers the Maplewood-South Orange area, interviewed Muise after the Third Circuit heard arguments. He said, “My sense is they weren’t favorably disposed to finding a constitutional violation,” he said. “In trying to read the tea leaves, I had a sense that with the questions they were asking, I think it was pretty clear to anyone sitting there that they would probably affirm the district court…Obviously we’re disappointed.”
Muise was right. In 2009, the Third Circuit ruled unanimously in favor of SOMS. Judge Dolores Sloviter wrote the opinion. She found the Jewish group’s amicus brief quotable.
She quoted, “Establishment Clause jurisprudence recognizes that neutrality toward religion is quite distinct from hostility toward it.” She approved the amici’s reference to an Eleventh Circuit ruling that “a contrary conclusion would totally eviscerate the establishment clause.…distinctions must be drawn to.…recognize not simply religious and anti-religious, but non-religious governmental activity as well.”
(The Eleventh Circuit covers Florida, Georgia, and Alabama. It is the second-most-likely circuit to approve religion in the public schools.)
“As the Amici note,” wrote Sloviter, “Were that not the case, almost every government action vis-a-vis religion would fall into one of two columns—pro- or anti-religion, promoting or hostile to—and be subject to Establishment Clause attack in either event. That is the logic of Plaintiff’s legal theory.…”
Muise appealed to the Supreme Court, and the Court refused to hear the case.

Monday, November 1, 2010

No Mandate for Christmas Carols

It’s final. Schools in New Jersey, Delaware, and Pennsylvania don’t have to play Christmas carols in December concerts.
In October, the U.S. Supreme Court refused to hear an appeal by the Thomas More Law Center (TMLC), a Religious Right legal group that harassed a New Jersey school district for six years because the district omitted carols from its December concerts.
In 2004, as a guest on The O’Reilly Factor, a Religious Right talk show, Richard Thompson, TMLC president, ignited the lawsuit. He called for a plaintiff to challenge the South Orange-Maplewood (SOMS) policy.
Michael Stratechuk saw the show and answered the call. His two sons attended SOMS schools. They didn’t play in the orchestra or sing in the chorus.
We parents attend school concerts to cheer our own children. With uninvolved children, had Stratechuk ever gone to a school concert?
Robert Muise, TMLC’s lawyer, asked U.S. District Judge William Walls to strike down the carol policy, because “Defendants have conveyed the impermissible, government-sponsored message of disapproval of and hostility toward religion, including Christianity, in violation of the Establishment Clause.”
The U.S. Constitution’s Establishment Clause forbids government promotion of religion. All parties agree that the clause necessarily bars government attacks on religion.
SOMS’ policy says,
“Religious holidays are not to be celebrated in the schools.…However, opportunities to learn about cultural and religious traditions should be provided within the framework of the curriculum.…
“Religious music, like any other music, can only be used if it achieves specific goals of the curriculum.…Music programs prepared or presented as an outcome of the curriculum shall not have a religious orientation or focus on religious holidays.”
In 2005, Judge Walls dismissed the suit. He approved the SOMS policy. He said, “The plaintiff has not alleged any facts that if established would entitle him to any relief under the Establishment Clause.”
Muise appealed to the Third Circuit Court of Appeals, which includes Pennsylvania, Delaware, and New Jersey. He claimed that the published SOMS policy understated the district’s censorship of religious music. He claimed that SOMS acted expressly to show hostility toward religion.
The Third Circuit judges sent the case back to Judge Walls to “afford Stratechuk a chance to show that the policy in place in 2004-2005 is different from the official policy.”
Muise crowed, “The Third Circuit’s decision confirms that school districts cannot adopt policies that disfavor religion. In fact, it plainly demonstrates that our Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any.”
That was the high point for TMLC.
At the trial, District Judge William Walls said to attorney Robert Muise, “A school board confronted with different religions says it will be neutral with regard to songs for religious purposes whether the holiday is in December, April or June. Why is that hostile to religion under the Establishment Clause?”
The parties agreed that the district had excluded carols from its concerts. The case turned on the district’s motives.
Muise argued that the exclusion of carols was evidence in itself of hostility toward religion. Any other explanation was a sham.
SOMS Superintendent Peter Horoschak described the policy’s development.
He said, “Board members had heard from some community members about instrumental music that they felt…represented a celebration of Christmas holidays and also there had been discussion about the fact that you really can’t balance religious groups in these representations in these types of performances.”
Assistant Superintendent Jim Memoli described a later meeting. He said the discussion involved, “what we do for students in this district, what is best for them so that we feel that we’re treating everyone on an equal basis, what was educationally sound,” making sure that “no child feels uncomfortable celebrating a holiday that wasn’t their own.”
Walls ruled that the SOMS policy, as practiced, was not only legal, but revealed “a sensitivity towards ensuring that the School District maintains complete neutrality in matters of religion.”
He denied that the exclusion of carols in itself demonstrated hostility to religion. He wrote, “Plaintiff has presented no evidence to support the notion that the purpose behind defendants’ interpretation of Policy…was to show disapproval of religion.
Muise thought he had presented evidence. After the hearing, he said, “I think we made a very strong record at this level.…If we need to go to the appellate court, we will.” He hoped the case would reach the U.S. Supreme Court.
To be continued