Don Drakeman on Establishment Clause Miracles

An obscure Christmas carol and our even more obscure Establishment Clause jurisprudence


At the Law and Religion Forum today, Donald Drakeman (Notre Dame) reflects on an obscure Christmas carol and our even more obscure Establishment Clause jurisprudence. Don writes about a high school band in California that wished to include Ave Maria by little-known German composer Franz Biebl in one of its concerts. The Ninth Circuit ruled that including the piece would violate the Establishment Clause, a ruling that depended, Drakeman writes, on more than one miraculous belief:

Herr Biebl's Ave Maria has become our inspirational story thanks to the 9th Circuit's 2009 decision in Nurre v. Whitehead.  The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental version of Biebl's piece because they thought it would "showcase their talent."  But the Biebl was nixed by the school administrators on the grounds that "the title and meaning…had religious connotations and would be easily identified as such by attendees."  The 9th circuit backed them up, saying that the school's action was an appropriate way to avoid an Establishment Clause problem.

As far as I can see, the court's decision required a series of miracles, each involving a degree of faith in the education of America's youth that, as the KJV might say, "passeth all understanding."

The First Miracle:   That anyone was listening.  As a veteran high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music.  The chance that any of them would think, "Wow, what a great piece!  I'll check the program to see what it's called" rounds to zero.  But, in this season of miracles, let's say they did, and learned that it was named Ave Maria.

The Second Miracle:  That the seniors had any idea what "Ave Maria" means.  I would like to share the judges' faith that the seniors were well versed in Latin.  Yet, even if they were, Biebl's effect would more likely be something like this:

Football Captain:  Are you waving at the band?

Head Cheerleader:  Yes, they are playing that for me.  It's called, "Hey, Mary."  Didn't you pay attention in AP Latin?

Football Captain:  You have to stop skipping Latin Club meetings.  The Romans didn't say "Hey," they said, "Hail."   This song is in honor of my "Hail Mary" touchdown pass in the championships.

High School football may inspire religious-like devotion, but at least so far, not enough to violate the Establishment Clause.

The Third Miracle:  That there could possibly be a "primary effect" of advancing religion under the 9th Circuit's use of the Lemon Test.  In other words, someone had to pay attention to the band, consult the program to learn the title, understand its meaning and religious significance, and then have a sufficiently religious experience that the instrumental rendition of the piece during graduation had a primary effect of advancing religion.  But, if you think about it, we don't see people falling to their knees in prayer when they hear Josh Groban's Ave Maria at the mall, and his version actually has words.  Besides, the students most likely to manifest this third miracle involving a traditional Catholic prayer are the Catholic ones, and they were more likely to be graduating from the large Catholic high school just five minutes away.

You can read Don's whole post here. Merry Christmas!

NEXT: Ban on "Improper Language" at V.A. Is Unconstitutionally Viewpoint-Based

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  1. Let me guess, this high school is on 34th street, no? Yes?

  2. I am Jewish and even I do not think an instrumental version or even a vocal one of Ave Maria by a high school group is a violation of any Constitutional norm. Say what you want about Christianity, but their classical music is fantastic.

    Of course I grew up in the south in a segregated school system where the school district hired an itinerant teacher to teach Christianity once a week to middle school students, and where each Tuesday a minister was invited to preach Christiantiy to an assembly of the student body. To object to all of this was considered un-Christian.

    Actually the middle school thing was great because I got to go to the school library during bible (new testament) sessions which was jolly good fun. And as far from being ostracized by the other students at least five of my classmates wanted to know how to convert to Judaism so they too could skip the religious class.

    So having suffered real Constitutional violations by government I may not be quite as sensitive to this as others. But I would like to plead my case that tax dollars or government funding should not be used to support sectarian religious education. That does not seem to be too much to ask, and Merry Christmas to everyone who is not offended by that term.

    1. From today’s learnings, apparently government can block ancient cultural music, but cannot block talking shit at vets.

  3. A single song “establishes” a religion. An instrumental version so no icky Christian words.

    So so stupid.

    1. The words are also in Latin. Doubtful anyone in High School would understand them.

      Besides its a beautiful piece of music.

      1. Well, the words are the words of the Angelus. I never took Latin in high school, but I’d have understood the words (as I did, years later, when I heard the Biebl Ave Maria performed).

  4. This appears to be a frequent problem with public school districts mistakenly believing that students voluntarily engaging in religious activity, choosing religious songs to perform, reading religious-themed books for book reports, etc., somehow constitutes the school district “establishing” religion. They fail to appreciate the difference between a student choosing to speak on a religious topic (protected under both the free exercise and free speech clauses) and the school district itself requiring religion to be taught. (After all, only government, not private citizens, can “establish” a religion).

    I remember back in the 1980s reading about a student who wanted to do an oral book report on the Bible. His teacher made him give the report after school to avoid “exposing” other students to religion.

    1. I thought this was cleared up decades ago anyway, with the Santa Claus test for displays of a manger at the city hall. Every religion, and atheists, can sign up for display slots now.

      Then my fellow atheists try to fill out so many forms they block the nativity scene from getting a slot, as they scream there is no war on Christmas.

    2. It’s not even a voluntariness question. Court after court after court (until this one) has held that there is nothing wrong with students in band, choir, orchestra playing religious music. The only thing they have to avoid is not using the instruction to proselytize the religious message (even teaching about the religious message is just fine).

  5. Seems to me that they were only concerned that the title of the song was a problem, not the actual music.
    So, just print the program with a blank where the song title should be and problem solved.

  6. “God of our weary years, God of our silent tears,
    Thou who has brought us thus far on the way;
    Thou who hast by Thy might, led us into the light,
    Keep us forever in the path, we pray.”

    Looks like they also shouldn’t be able to sing “Lift Every Voice and Sing”, otherwise known as the Black National Anthem, since it mentions God, which is obviously an attempt to establish religion.

    1. And clearly the Reverend Raphael Warnock cannot possibly run for a public office. His being elected would clearly establish religion.

    2. Speaking of “Black National Anthem,” whatever happened to Kwanzaa? It’s gone and left no traces.

  7. “But, if you think about it, we don’t see people falling to their knees in prayer when they hear Josh Groban’s Ave Maria at the mall, and his version actually has words.”

    Schubert’s, on the other hand…

  8. This provides an opportunity for law professors to get together with music professors and make a list of “constitutionally safe songs” – no sectarian themes, no God, no supernatural events except Santa Claus and living snowmen.

    A song not on the list shouldn’t be performed in public schools.

    We’d lose much of the Western classical heritage, but that’s OK because those composers were generally white.

    Query: Would *Also Sprach Zarathustra* count as religious?

  9. For me to understand the miracles. You first have to get from
    Congress shall pass no law..
    to “primary effect” of advancing religion under the 9th Circuit’s use of the Lemon Test.

    One is the constitution, the other is invented from nothingness by a judge(another miracle!)

  10. The school decided against stepping within a still great distance from a slippery slope that ends where every song in an entire program is a Christian hymn. If played at graduation, it’s not just students in the audience.

  11. Judicial practice involves a great deal of pre-Christian religious symbolism. Courtrooms often have architecture modeled on classical temples. There are robes, diases, portraits of revered spirit ancestors, oaths, and a great deal more.

    If an instrumental version of Ave Maria so retains its original religious context that it can’t be separated from it, how can courthouses brazenly modeled on temples (etc.) possibly be justified?

  12. I guess there is a difference between a court saying “playing this song IS an establishment clause violation” and a court saying “choosing not to play this song IS NOT a first amendment violation”. I think a school choosing never to play religious music is a HORRIBLE educational decision, but not an unconstitutional one.

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