Recently the Supreme Court upheld a decision by the US Circuit Court of Appeals in San Francisco to allow a school district in the state of Washington to veto an orchestral religious piece at a public high school graduation. The Supreme Court in a split decision upheld the ruling of the appeals court that the school officials decision to keep the graduation ceremony secular was a reasonable effort to avoid a constitutional controversy. Traditionally, graduating members of the schools orchestra could choose what they played from their list of songs. Although the song they chose, “Ave Maria,” contained references to god, heaven, and angels, the students had elected to perform a strictly instrumental only version, which they had previously performed in choir recitals. The student who brought the appeal, Kathryn Nurre, claimed that the decision to play “Ave Maria” was made on artistic, not religious grounds, and that the freedom of speech of the members of the orchestra were being violated. Religious and artistic imagery in public settings has been a major constitutional issue since Marsh v Chambers in 1983, and continues to prove pertinent today.
When looking at the ruling in this case one must begin by examining the applicability of the Lemon Test. For starters, and most importantly, is there a secular purpose in this case? By this I of course mean: does the performance of “Ave Maria” at a high school graduation have a secular purpose, or is it clearly a medium for religion. I believe that in this case, with an instrumental only recital, the purpose is explicitly secular. How can performing a piece with instruments only insight religion? The answer is that it can’t, and rather that it’s simply a form of art intended only for the audience’s pleasure, and a clear expression of freedom of speech.
Secondly, is the primary effect of the recital of this song intended to advance religion? Hearing an instrumental version of this song provides no religious effect and furthermore provides less of a religious effect than say God Bless America. While of course one could hone in on the specifics of the song and its original message, would this really be its primary effect in this context? Finally and perhaps the question that should have been addressed first: is there excessive entanglement on the government’s behalf? Taxes go to the government, and from there money is allocated to public schools, so in effect has the government funded a religious orchestra performance? I think that this question is probably the hardest to answer because even if there is the slightest shred of evidence that religion is being promoted than the answer is yes they have, but I do not believe that to be the case here. On the surface, Pawtucket displays of nativity scenes and Nebraska state legislature opening prayers, which we saw in Lynch v Donnelly and Marsh v Chambers respectively, appear to be excessive entanglements of the government. After further dissection however, in both cases, it was ruled that both were constitutionally acceptable because of our countries unique Judeo Christian history and the overall secular purpose both performed. I would like to know how an orchestra performing an instrumental piece at a high school graduation is any different. Clearly all three situations raise eyebrows; however consistency in rulings is a necessary mean and thus the same logic used in Lynch v Donnelly and Marsh v Chambers, should be applied here.
It is possible that opponents of an orchestra performance like such could maintain that religiously routed music belongs in private not public schools, and any shred of religious material is influential and therefore unacceptable. Isn’t it true however that allowing kids in public schools to where turbans, yarmulkes, or crosses, exposes others to religious symbolism. Just as though there exists no compelling state interest to prohibit turbans, yarmulkes, or crosses, in public schools, the same goes for an instrumental version of “Ave Maria.” While it is understood that no right is absolute, the right to freedom of speech, which is clearly in play here, has larger implications as we move forward.
Like Eric stated, the fact that the song lyrics would not be performed plays an important role in removing religious purpose from the performance. Without the lyrical references to God, heaven, and angels, I find it difficult to prove that the song may force a "captive audience" to "hear a religious message with which they may disagree" if there are no words in that message. Perhaps the high court agrees, since the original article states they declined to explore that matter.
ReplyDeleteIn addition, this would not be the first time that "Ave Maria" would be played at a school function, as the article states the song "had been performed previously in choir recitals." If the choir has been allowed to perform the song in the past, why is that right suddenly being taken away from them? If the song was not deemed to endorse religion in past performances, how does it now serve that purpose?
I think that the school was within its rights to disallow the song, although I think that if the school administrators had felt differently the school would have also been right in allowing the song to be played. Though I would argue that the Ave Maria is a religious song, the fact remains that a large portion of music and art from centuries past comes from a religious viewpoint and to shun them all because of that would leave our music and arts program very lacking. Especially since the students were willing to play the piece orchestrally, I feel that the song would have been acceptable to play at graduation but the school still had the right to nix it if they felt it would make some students or parents feel uncomfortable.
ReplyDeleteI agree with Lauren and Eric. Even though the lyrics of the music are considered "religious", the notes on the page have absolutely no religious meaning. Taking away the lyrics, takes away the religiosity of the piece. I do not see this as excessive entanglement or the state promoting religion in anyway because no religion is being discriminated against or hindered by the playing of simple notes on the page. It is unfortunate the the school no longer is able to perform such a beautiful piece but like Shannon said, the school board has the right to say no.
ReplyDeleteI agree with the above comments about this article. Yes, this song originally has a religious purpose, however, without the lyrics, it is only a piece of music. As someone who does not consider himself very religious, I would have a hard time distinguishing this performance from any other piece, I would have a hard time arguing that the school was trying to push a specific religion upon myself and the rest of the audience. There will always be objectors to the chosen traditions of a nation, or in this case, a school. Some people will object to the singing of the National Anthem or other piece. However, in this case, without lyrics specifically referencing God and Heaven, I think that this performance should be allowed.
ReplyDeleteThis blog raises interesting questions regarding the establishment clause. Like the commenters above, I agree that it seems a little "out of touch" to argue that this song is being used overtly for a religious purpose. It would be difficult for it to not pass the Lemon test.
ReplyDeleteI do wonder, however, whether such an argument is easy to make in this case because of the artistic nature of the subject matter. It seems strange that when something is "artistic" the religiosity of it doesn't really seem to bother most people. When it is a school book, however, as the other recent blog points out, it is an entirely different matter.
Also, I wonder about the difference between learning to play this song as a member of the band on one hand and having to experience it as a member of the audience. Don't schools teach religious songs to kids all the time? And don't they have to, since so much of the music from the classical period has religious themes?
It seems with things like the arts, drawing the line between the religious and the secular can get especially tricky, and might in the end contest some of the ideas about what we think is secular vs. religious.
In regards to this blog, I must concur with the original author in that when invoking the Lemon Test, it seems that this passes with flying colors. However, the more interesting aspect of this particular situation is to point out the intersection and entanglement of art and religion. Unlike the disputes between science and religion, most people, I believe, can agree that art is infused, at times, by religion. In fact, is it even possible to have a discussion regarding classical music without some mention or teaching about religion? The decision to play an instrumental version of Ave Maria presents us with the situation of teaching and talking about religion and not promoting religion for personal or theological reasons. In this case, for students to learn about classical art and specifically in this case classical music, it is impossible to keep religion completely out of the conversation.
ReplyDeleteThis is an interesting case because it reflects how when a question reaches the legal arena, the issues addressed by the legal decision can sometimes be quite removed from the issues involved with the question itself. The issue at stake for the principal in this case was whether a religious work of art presented in the graduation ceremony might offend a person or group. This is quite different from the issue addressed in the court, which questioned whether a government official, in attempt to remain formally neutral, could chose to ban religious works of art from a public ceremony without infringing on the individual rights of those participating in the ceremony. I would argue that the principal’s decision, which was heavily influenced by the fear of a recurrence of the previous year’s controversy, was essentially flawed, but the court clearly stated it was not deciding on whether religious works of art could be presented in public school settings: “we do not seek to remove all religious musical work
ReplyDeletefrom a school ensemble’s repertoire. Nor do we intend to substantially limit when such music may be played.” (Nurre v. Whitehead 12744). Instead, the District Court’s decision was based on the fact that schools are not legally compelled to extend the right of free speech to students at all times and in all situations. I think most people would agree that the purpose of a graduation ceremony is not to be an open forum, where anyone who chooses may exercise free speech. The school, as sponsor of the event, has the legal authority to select what speech is presented in the ceremony.
The views expressed above are very interesting yet I feel Galvin is totally correct in stating that this was not a decision on religious establishment or on free exercise grounds, but was specifically upholding the authority of the school to determine the content of a school sponsored program. The point that I want to add to the discussion is that to claim that the instrumental version of the song invokes less of a religious image than the version with lyrics is completely wrong. The instrumental version will stimulate all the reflections that the audience has in memory of when the song was preformed previously. Granted most of the students will not remember Bing Crosby singing this in the movies. In fact, some may even think it relates to the lead female in West Side Story or they may think it is from Sound of Music. But those that have seen the movie actors sing Ava Maria will have strong spiritual and religious reflection. If this were sung by a student chorus there may be much less of a religious image than when the mind is free to play back previous associations with the melody in the instrmental version.
ReplyDeleteBut these reflection issues aside, the split decision of the court is hard to understand as this is such a clear case of the rights of the authority of the school.
The Supreme Court made the right decision. No one openly complained when a gospel song, the lyrical version, was performed during my high school graduation ceremony. Yet, in hindsight, the inclusion of the song marked religious assumptions made regarding the audience. The author of this post claims that the instrumental version can't insight religion. I disagree. When you hum or hear a melody, aren't the lyrics immediately brought to mind?
ReplyDeleteHigh school graduations are not elective events, like recitals. If you wanted to view the graduation, then attendance is required.
I question why the Ave Marie was chosen? Most likely because of it's inspirational tone. Inspiration linked to a particular religious faith that everyone does not share.
Bottom line:Religious music can't have a secular purpose.
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