Tuesday, March 23, 2010

Comments on the Ave Maria Case

I was reading through a series of comments related to the Supreme Court declining to hear a case brought by a High School student in Washington State against a local school board because it wouldn’t let her play Ave Maria at graduation.The student claimed the decision violated her rights of free speech and expression. The school board justified the decision by saying that many people would see the music as being religious in nature.

A fairly large percentage of the comments disagreed with the court and the school board. I would say the arguments fell into one of two broad categories.

Category #1 – Ave Maria is religious in nature but it’s ok to play religious music at a public school graduation.

Err, no, it is clearly NOT ok. Why is it not ok? Because the Supreme Court of the United States (SCOTUS) has determined that the 1st Amendment says it’s not ok. People who say things like “show me where it says in the Constitution that church and state must be separate” overlook the case law that exists interpreting what the Constitution MEANS.

The separation of church and a state is a legal principle derived from the 1st Amendment Establishment Clause. The phrase comes from a letter written by Thomas Jefferson in 1802. The SCOTUS has repeatedly validated the principle but has sometimes disagreed on what the principle means.

The problems usually center on conflicts between the Establishment Clause and Free Speech which is precisely where this case draws the battle lines.

Under what circumstances can the state, in the person of a school board or a school, censor a student’s right of free expression?

Many people quote “the Constitution guarantees Freedom OF Religion not Freedom FROM Religion.” I have no idea who first said this as it’s been attributed to lots of people but its flat out wrong.

In Lemon v. Kurtzman in 1971 the SCOTUS established a three pronged test to determine whether or not a government action violated the Establishment Clause.

1) The government action must have a secular purpose; 2) its primary purpose must not be to inhibit or to advance religion; 3) there must be no excessive entanglement between government and religion.

Take special notice of number 1. This is what guarantees Freedom FROM Religion at least as far as any government action is concerned.

This is not a matter of opinion. This is a matter of fact. If a government action fails ANY of the three prongs, it’s illegal. The teaching of Creationism fails the first prong. Posting the 10 Commandments, unless part of a broader context, fails the second prong and supporting parochial schools financially generally fails the third prong.

However, in this particular case the shoe is sort of on the other foot because part of the claim by the student was that, in prohibiting the playing of Ave Maria, the school board was being HOSTILE to religion.

The court found that it was not because the board’s action, prohibiting the playing of Ave Maria, passed all three prongs of the Lemon Test.

Note that the court NEVER addressed the question of whether allowing Ave Maria to be played at the graduation would have been a violation of the Establishment Clause.

Category #2 – Ave Maria may have a religious theme but as classical music it has an artistic value beyond its religious significance therefore its ok to play it at a public school graduation.

While I don’t doubt the artistic value of Schubert’s music, I have to point out that truth is in the eye of the beholder.

Could a reasonable man have interpreted the playing of Ave Maria at a public school graduation as an endorsement of religion?

The school board clearly thought this was a possibility and they decided to exclude it because they had established that graduation ceremonies were to be entirely secular in nature. Here is the e-mail from the district administrator to school principals.

“I am requesting that music selections for graduation be entirely secular in nature. My rationale is based on the nature of the event. It is a commencement program in celebration of senior students earning their high school diploma. It is not a music concert. Musical selections should add to the celebration and should not be a separate event. Invited guests of graduates are a captive audience. I understand that attendance maybe [sic] voluntary, but I believe that few students (and their invited guests) would want to miss the culminating event of their academic career. And lastly there is insufficient time at graduation to balance comparable artistic

In light of the decision to exclude all items of a religious nature from the graduation ceremony as a whole, and not just for this music selection, the restriction was what is known as “Content Restriction,” which is normally permissible, rather than “Viewpoint Restriction” which is normally not.

In other words, if you decide you want to talk about the NFL playoffs at a government sponsored seminar on nuclear power it’s OK for them to tell you to go to hell. That is NOT a violation of your right of free speech.

Therefore the court ruled that excluding Ave Maria under these circumstances was not a violation of the student’s right to free speech.

So in the final analysis the question wasn’t whether Ave Maria was appropriate, it was whether the school board was within its rights to decide it wasn’t, so the whole question of the artistic value of Schubert’s piece, as opposed to the religious value, is sort of meaningless.

In summary, the issue WAS NOT whether playing Ave Maria at the graduation violated the Separation of Church and state, it was whether the school board's decision that it might, and it's subsequent denial of permission, violated the student's constitutional rights. The court decided that it had not.

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