October 8, 2010
(RNS) -- "Silent Night" and other religious songs will remain off the program at holiday concerts in one New Jersey school district -- and possibly others across the country -- after the U.S. Supreme Court declined to hear an appeal of a school ban on religious holiday music.
By deciding Monday (Oct. 4) not to hear the case, the high court ended a six-year legal battle that started when parent Michael Stratechuk sued the School District of South Orange and Maplewood over a policy that barred religious songs at public concerts.
The 3rd U.S. Circuit Court of Appeals upheld the ban last year, and Stratechuk attempted to take the case to the higher court.
"There's nothing more, short of the school district changing its policy. There's no other legal avenue to take," Stratechuk's attorney, Robert J. Muise of the Thomas More Law Center in Ann Arbor, Mich., said.
While the 3rd Circuit ruling technically only applies to Pennsylvania and New Jersey, Muise worries the high court's rejection of the case could lead to a chilling effect on religious music in school districts across the country.
"Religion has not been banned totally in schools but we're headed in that direction," he said Tuesday. "The South Orange-Maplewood Schools are in the forefront of taking that step."
Stratechuk, a musician whose two sons were in seventh and ninth grades when he brought the case, could not be reached for comment.
In a statement, school Superintendent Brian Osborne said the policy "was adopted to promote an inclusive environment for all students in our school community. We have always felt our policy was constitutional and are pleased with the outcome."
In the 1990s, South Orange-Maplewood adopted a policy banning the use of religious songs in school performances. The district stirred controversy in 2004 when a memo clarified the policy, extending it to vocal and instrumental performances.
Opponents organized an "illegal" night of Christmas carols, Hanukkah songs and other musical pieces that December, according to Muise's petition to the U.S. Supreme Court. The policy covered religious songs of all faiths, but Muise said his client's case was brought on behalf of Christmas songs.
"You're not even going to allow the instrumentals of the music that doesn't contain the words," Muise said. "People in the audience would sing the songs in their minds?"
The case was brought under the First Amendment's Establishment Clause, which requires the government to be neutral toward religion, Muise said.
"The whole idea of diversity and tolerance, you learn those traits by understanding other people's traditions and religious traditions," he said.
The South Orange-Maplewood policy, which says its goal is to "foster mutual understanding and respect for the right of all individuals regarding their beliefs," permits religious music to be taught in the curriculum. But the music cannot be used to celebrate religious concepts, events or holidays.
Muise said by banning it from performance, the district essentially kept religious songs out of the curriculum because "teachers tend to have students learn in class what they're going to perform" at a concert.
He also said that despite the district's stated policy, prior to 2004 some holiday concerts did contain Christmas music. In 2003, for example, according to the petition, one holiday concert included "Joy to the World," "O Come all Ye Faithful," "Hark, the Herald Angels Sing" and "Silent Night."
He said the policy also prohibits "any printed programs for any holiday concert to have any graphics which refer to the holidays, such as Christmas trees and dreidels."
Copyright 2010 Religion News Service. Used by permission. All rights reserved.