Despite ‘role of Grinch,’ 7th Circuit won’t stop Christmas show

An Elkhart high school’s traditional “Christmas Spectacular” production that was canceled by a northern Indiana federal court because of its overt religiosity, then passed muster when Christian elements no longer took a leading role in a revival, won the reluctant blessing of the 7th Circuit Court of Appeals.

The panel — whose members variously compared their roles in deciding this case to the Grinch and producers of a high school musical — ruled that Concord Community Schools’ revised 2015 Christmas Spectacular may go on because it no longer violates the Establishment Clause.

“The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production,” Chief Judge Diane Wood wrote. “But we accept this position, because we live in a society where all religions are welcome. The district court found that the Christmas Spectacular program Concord actually presented in 2015 — a program in which cultural, pedagogical, and entertainment value took center stage — did not violate the Establishment Clause. We affirm this judgment.”

The district court had ruled differently after a performance in 2014 that was challenged by students and parents and found to violate the separation between church and state. A new less-religious version was staged but also drew a challenge.

In consolidated appeals, the 7th Circuit on Wednesday upheld the constitutional sanctity of the revised 2015 show in Freedom From Religion Foundation v. Concord Community Schools,17-1591, 17-1683.

That show de-emphasized the 2014 show’s prominent focus on the Nativity and other Christian elements of the holiday season, though those elements remained in the more secular 2015 version. The 2015 show also introduced elements of other religious traditions, the court noted, in an opinion illustrated with numerous color photos from the various productions.

While Wood said plaintiffs may have a point that the revised play’s inclusion of other elements was just for show, she wrote that nothing in the Constitution requires each faith tradition now represented —Christmas, Hanukkah and Kwanzaa — to receive the same number of minutes onstage.

But Wood and Judge Frank Easterbrook, who wrote a separate concurrence, noted seasonal depression regarding cases such as these.

“Since ancient times, people have been celebrating the winter solstice, which occurs around the third week of December in the Northern Hemisphere,” Wood wrote. “Many of these celebrations are religious in nature, and so in the modern United States they have led to a depressingly steady stream of First Amendment challenges, in which one party wishes to express its religious views in the public sphere and the other party asserts that the Establishment Clause would be violated by the display. Our case fits that pattern to a T.”

Easterbrook, meanwhile, concurred in the judgment, but not in Wood’s opinion or some of the tests used to arrive at the conclusion. He stood by his long-held view that because nothing about the Christmas Spectacular affected anyone’s taxes or coerces any form of religious belief, there is no establishment of religion.

The school, for instance, could perform deeply religious works such as Handel’s Messiah as a work of art, he wrote, without establishing religion.

“Although the Concord Community Schools have not violated the Constitution, the judiciary’s performance is harder to defend. Federal judges have picked through a performance to choose among elements with religious significance. Preventing that sort of entanglement between the judiciary and religious expression is a main goal of the First Amendment — yet we are at it again, playing the role of producer to decide which material, representing what religious traditions, may appear in a choral performance,” Easterbrook wrote.

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