Saturday, October 31, 2009

Nonsense of the Day

In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court interpreted the First Amendment's prohibition on "establishment of religion" to forbid clergy from reading non-sectarian invocations and benedictions at public school events such as graduations. I'm not a huge fan of that decision -- among other things, it's inconsistent with Marsh v. Chambers, 463 U.S. 783 (1983), allowing the Nebraska Legislature to open sessions with a prayer from a Presbyterian minister paid out of public funds -- but I'll accept stare decisis for this post. And, apart from egregious circumstances, I've also emphatically opposed turning Federal Courts into a forum for second-guessing public school administration. Cf. Regents of University of Michigan v. Ewing, 474 U.S. 214, 226 (1985) (Federal Courts are "far less . . . suited to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions -- decisions that require 'an expert evaluation of cumulative information and [are] not readily adapted to the procedural tools of judicial or administrative decisionmaking.'").

So I agree with the result of the recent ruling in Nurre v. Whitehead, No. 07-35867 (9th Cir. Sept. 8, 2009). There, the Ninth Circuit held that a Washington state public school system superintendent's decision to bar playing Franz Biebl's version of "Ave Maria" at the upcoming graduation ceremony because of its "religious connotations" did not violate the free speech rights of a high school alto sax player. In general, the Constitution doesn't enshrine the principle to sue your principal. Cf. Safford Unified School Dist. # 1 v. Redding, No. 08-479, Part IV (June 25, 2009).

But. . .

Senior student-musicians historically picked the graduation theme. The text of Ave Maria is unquestionably liturgical. Yet, the school group was a wind-ensemble, so no "religion" would have been sung. The sole intrusion of faith into the function would have been, as the dissent noted (slip op. at 12756), in the printed program.

Again, I agree that the Constitution normally doesn't entitle students to second-guess public school policies. But religious freedom isn't freedom from religion. So, I also agree with National Review senior editor Jay Nordlinger, in the November 2nd issue (subscription-only for now):
We have reached a pass where, if we hear the word "God," or even "angels" and "heaven," we say, "Eek, a mouse!" American life has always been soaked in religion, from the Pilgrims to Abraham Lincoln to Martin Luther King and beyond. If American life, including graduation ceremonies, is purged of religion, American life is something new and twisted. Given the importance of religion to man in general, it is barely life itself.

The problem with Biebl’s Ave Maria, in its wind-ensemble version, was the title alone. If the kids had told the principal that it was called "Against the Despoliation of the Environment," or "Ode to President Obama," that would have been fine, you can bet. No one in the audience would have been guilty of thought-crime. Many composers draw inspiration from God and religion when they put pen to paper, no matter what their titles. Should they tell [the superintendent] when they have received such inspiration, just in case?
Conclusion: Our system properly is secular. Yet religion underlies history and government. So faith influenced many laws--six of the Ten Commandments are codified in most criminal codes--because it can be an element of voter and legislator judgment.

Biebl’s Ave Maria is a beautiful tune, not a budding theocracy. But litigation isn't the answer; democracy is. For the band to beat the ban, elect a new school board wanting to hire a more open-minded superintendent.

They call that tolerance--which is intolerable only where the object is conservative.


Geoffrey Britain said...

The interpretation of what the founding fathers intention was in the First Amendment's prohibition of "establishment of religion" is wherein the controversy lies.

As you point out, many liberals interpret "establishment of religion" to mean freedom from religion in the public square.

Conservatives interpret the prohibition to mean governmental advocacy and promotion of a particular religion or sect, such as Catholicism, Protestantism, etc.

GW said...

You might wish to read this Buckley speech on religion in America and the SCT establishment clause decisions.

I am not particularly religious, but I firmly believe the activist decisions that have removed all hint of religion from public life is fundamentally flawed. It has had a decidedly negative impact on our nation.

OBloodyHell said...

> As you point out, many liberals interpret "establishment of religion" to mean freedom from religion in the public square.

Well, to play Devil's Advocate, I believe there is a legitimate issue with the idea of using public funds in a manner which promotes religion.

I think this example fails that test abysmally, but that's beside the point, there is slightly more to it than freedom from religion.

I think much more telling would be if the band decided to play something with a clear Islamic religious bent. Who wants to bet the admin would have no problem with that? And I'd have done THAT prior to initiating the suit -- by proposing some piece of Islamic music, then getting "someone else" to publicly it clear that it was religious in nature, too, and see the reaction of the admin in question, which odds are would be a shrug -- make it clear that Christianity was being singled out for special rules against it.

THAT would strike me as effective cannon fodder for a lawsuit. Because I believe that is what is really going on here -- this is not anti-religion.

It's anti-Christian.

OBloodyHell said...

> to publicly it clear

"to publicly clarify"


I hate writing into little boxes. :oP

OBloodyHell said...

The wind ensemble should play Ozzie Ozborne's "No More Tears"... LOL.

It's an impressive orchestral piece, even if it is about a serial killer.

Carl said...

GW: glad to see you're still around. The first part of Buckley's speech, on opposing believers for governmental jobs, is shooting fish in a barrel--he's clearly right: the Constitution forbids any "religious test" as a qualification for office.

The remainder of Buckley's article is right on point with this post and GB's comment. My views, expressed in previous pieces linked in this post and several other posts are somewhere between Buckley and OBH. I don't favor tax-supported religion. But, "[t]he Constitution does not shield one from encountering religion any more than it protects from being hit by air molecules." For all the left's talk of tolerance, they object to professions of faith in the public sphere just as Nordlinger describes.

OBH: I suspect you're partly right. Lefties sometimes seem more comfortable with Islam than Judeo–Christian expression. Still, your hypothetical wouldn't work. The court opinion makes clear the superintendent was worried about adverse reaction from the audience. And though attendees at a typical high school graduation could be expected to recognize the title "Ave Maria," they probably wouldn't see the significance of, say, an Arabic-language title of an Islamic religious song.

OBloodyHell said...

> The court opinion makes clear the superintendent was worried about adverse reaction from the audience.

If the claim of either "separation of church and state" or "promotion of a religion before others" is a part of that, and I don't see how it cannot be ("audience reaction"? So if the valedictorian's speech was challenging people to act in some fashion, outside of religious belief, it would be cut? How about the religion of Global Warming? :oD ), then clearly it doesn't matter which religion is being promoted -- or how much awareness there might be of the religious connection.

Secondly, if avoiding anything that might challenge is acceptable, then we're doomed:

A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purposes when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

- Supreme Court Justice William O. Douglas -

We need to stop accepting the idea quietly that "ruffled feathers" are sufficient to suppress someone's expressions.

These students chose a piece which had limited overt religious association, and no direct religious context. If you did not know of the music's religious lyrics, there is no way someone would make such an association, so the piece, by itself, is not religious, ergo, the superintendent clearly exceeded his bounds by outlawing it in attempting to presuppose the thoughts of someone hearing it, their level of offense, and the justifications for such offense.

We should now outlaw an expression because someone might have a bad association with it in their head!?!?!?

I largely agree with you that this sort of thing should not be settled in the courts, but

a) The "opposition" continually resort to the courts to press the point the other way. If they are determined to make that the battlefield, it's needful to play it out there, as well.

b) How do you propose eliminating this sort of crap when the only people who can qualify for these positions these days are postmodern liberals? When you can't install someone in office who does truly respect free speech and sensible responses to challenging speech, what can you do?

Yes, The Law is not "common sense"... but it is strongly connected to it.

When it keeps getting more and more out of connection to common sense as time goes by, then, sooner or later, common sense wins -- and either we all become lawbreakers and Rule of Law disappears, or the law rights itself and comes back into line with common sense.

Like it or not, The Law is a finite attempt to define proper behavior for an infinite number of possible circumstances. When forces distort, twist, and manipulate The Law until it no longer even matches up with "proper behavior" in major respects, then The Eleventh Commandment becomes The Only Rule People Obey.

suek said... religious _is_ it if you don't know latin?

Other than "Ave Maria", that is.

Carl said...

OBH: As a principled conservative opposed to judicial activitism, I refuse to embrace the judicial "hail mary" in order to kill it.