Yes, to the extent that this lawsuit is about using the Establishment Clause
case to force the government to play religious music because it plays
secular music, it does seem doomed. Arguing that disestablishment itself
constitutes establishment -- which, btw, is I think what we have been
talking about for weeks on this list (see, e.g., our discussion of "happy
holidays") -- is surely a quick way to conceptual disaster. The government
surely has discretion to include or exclude religious music as it will --
subject, I would argue, to the restraint that it cannot play religious music
that fails to have any of the qualities of concertworthy secular music.
(The best articulation of what it means to have these qualities, I think, is
perhaps Professor Laycock's amicus in Van Orden, where he flushes out the
details behind Justice O'Connor assertion in Lynch that having religious art
in a government museum poses no constitutional problem - see page 24-26 of
http://www.alliancealert.org/2005/commandments/vanorden/bjcommittee.pdf.)
But there is an aspect of the policy that troubles me. The policy also
refers to how "music programs prepared or presented by student groups . . .
shall not have a religious orientation or focus on religious holidays."
That, to me, seems constitutionally problematic. Depending on how the
policy has been interpreted, this case could be much more like Good News or
Adler vs. Duval County School Board -- that are about private parties having
equal rights of access to public places. (This is all, again, putting
Hazelwood to one side -- I have trouble with that case.)
The funny thing, I think, is that I haven't seen signs that the Thomas More
Law Center is focusing on this part of the policy. (It may be my fault; my
Westlaw isn't working so I can only see their press releases.) Perhaps both
sides -- the school district and TMLC -- are blurring the private/public
distinction for their purposes. It won't be the first time.
Chris
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Subject: RE: New Jersey Lawsuit
Date: Fri, 16 Dec 2005 14:04:32 -0800
Wouldn't the school have a sort of editorial right over the
content of its band performances, a la Hazelwood, even if it often
defers to student preference?
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders
> Sent: Friday, December 16, 2005 10:45 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: New Jersey Lawsuit
>
>
> I haven't seen the suit (does anyone have a copy?), but I could guess
> the theory is either that 1) the policy infringes free exercise of
> students and/or teachers, with a supporting argument that the
> music at
> issue is not being officially sponsored by the school, or 2) it's a
> Rosenberger-type challenge to the school's policy that "programs
> prepared or presented by student groups as an outcome of the
> curriculum
> shall not have a religious orientation or focus on religious
> holidays.
> Absent that restriction, a concert or performance could become an
> opportunity not to learn about a religious holiday or
> tradition, but to
> celebrate it." (See
> http://www.somsd.k12.nj.us/BFOLStatementrePolicy2270.htm.) Steve
> Sanders
>
> Quoting Ed Brayton <[EMAIL PROTECTED]>:
>
> > I want to get everyone's thoughts on the appeals court case against
> > South Orange-Maplewood School District in New Jersey. The
> school has
> > a policy not to have religious music performed by the choir or band
> > and that policy is being challenged as unconstitutional.
> Now, I think
> > the policy is a bad one for several reasons. But
> unconstitutional? On
> > what grounds? Are there any precedents that apply in this area? It
> > seems to me that saying it's not unconstitutional for
> public schools
> > to perform religious music (which I agree with) is quite different
> > from saying it's unconstitutional NOT to perform religious
> music. It
> > seems to me that if not playing Christian music amounts to
> > unconstitutional "hostility" toward Christianity, then not
> performing
> > Muslim music must also be unconstitutional hostility toward Islam,
> > and also true for Hindu music, Jewish music, and so forth.
> >
> > Ed Brayton
> > _______________________________________________
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> >
> >
>
>
>
> _________________________________
>
> Steve Sanders
> E-mail: [EMAIL PROTECTED]
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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