The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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!