Sounds Like Religion

Is music, religion? Can a piece of classical music with no lyrics violate the Establishment Clause? The Supreme Court, in their failure to grant certiorari to Nurre v. Whitehead believes so. In light of the recent case we’ve read involving prayer at graduation ceremonies, it was very interesting to see this case come before the Supreme Court. It was not prayer at graduation that was the problem, this time it was music. The high school band chose the instrumental song “Ave Maria” because the piece showcased their musical skills. The administration vetoed the song based on the title for fear that it would incite opposition on the basis of religion. The school administration was also reacting to an incident at the previous graduation where the students selected a song containing lyrical references to “God”, “heaven,” and “angels” which caused some complaint and encouraged the superintendent to veto “Ave Maria” for fear of a repeat incident. A student member of the band (Nurre), sued the school administration for violation of her first and fourteenth amendment rights, namely free speech. The 9^th Circuit Court ruled that the student’s rights were not violated. They indicated that the graduation contained a captive audience and promoting a religious message to said captive audience would have been a violation of the Establishment Clause. The Supreme Court (with a rare dissent from Justice Alito) decided not to hear the case, allowing the lower court ruling to stand. [Alito’s dissent is at the bottom]. The text of the case contains some very interesting reasoning. The 9^th circuit court applied Lemon and other prior precedents to rule in favor of the school, but there is an interesting point that was not addressed by either the dissent in the case or the Supreme Court appeal. What is at stake is the overtly religious nature of “Ave Maria” and the belief that the approval of such a piece by the school violated the Establishment Clause. In his partial dissent on the case Judge Smith concurred that the student’s rights were not violated, but disagreed that “Ave Maria” would violate the Establishment Clause. Smith discussed the history of music and placed music from this classical music period in a historical music context that he believed exempted the piece from overtly religious association. What is interesting and mostly unexplored is the majority agreement that music is speech and in this case even instrumental music with no lyrics is also speech. A reasonable argument could be made that lyrics in a piece of music could be speech, especially since they can be removed from the music piece and stand on their own as speech. Conversely, a purely instrumental piece, to be considered speech and religious enough to be considered a violation of the Establishment Clause is subject to a series of tests in itself. In the absence of lyrics of any kind, the musical piece would have to be recognizable as religious by a reasonable person. Even if that is satisfied, the same piece would also have to be recognized by a reasonable person to contain a religious message that is so universally understood so as to represent a religious point of view with a level of particularity that the religious message could be conveyed simply from the hearing of a particular collection of musical notes played together. I do not think the case has provided enough evidence to draw this conclusion. I would also argue that should such a universally recognized message be apparent to a reasonable citizen based purely on an instrumental rendition, I think you could argue that it then represents some form of cultural memory that would be akin to the same logic that allows “One nation under God” to be considered a non-religious patriotic assertion in the eyes of the Court. I think the 9^th Circuit Court got it wrong in this case. Either instrumental music is not speech at all and the administration was not justified in their disallowing of the piece, or the idea of a universally understood religious message embedded and recognized within an instrumental piece has not been in any way substantiated and thus should not have resulted in a veto.