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