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.