Recent Developments in Federal Court Regarding Freedom of Religion – Part 1

A federal appeals court ruled that the constitution was not violated when a public high school choir performed religious songs and conducted a few of its concerts in churches.

Church Law and Tax1998-07-01

Freedom of Religion

Key point. Not every government activity that confers an incidental or indirect benefit upon religion violates the constitution.

A federal appeals court ruled that the constitution was not violated when a public high school choir performed religious songs and conducted a few of its concerts in churches. A non—Christian student who was a member of the choir asked a federal court to issue an order banning the choir from singing religious songs and performing concerts in churches. A federal district court refused to do so, and the student appealed. A federal appeals court concluded that the choir’s practices were permissible and violated neither the first amendment’s nonestablishment of religion or free exercise of religion clauses.

Establishment of religion

The court applied the Supreme Court’s so—called Lemon test in determining whether the choir’s practices constituted an impermissible establishment of religion. Under this test, first announced in a 1971 decision (Lemon v. Kurtzman), a government practice challenged as an establishment of religion will be valid only if it satisfies the following three conditions-a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state. The court concluded that all of these tests were met. First, the court ruled that the choir’s performance of religious music and the use of churches for some concerts had a clearly secular purpose:

Here, we discern a number of plausible secular purposes for the defendants’ conduct. For example, it is recognized that a significant percentage of serious choral music is based on religious themes or text. Any choral curriculum designed to expose students to the full array of vocal music culture therefore can be expected to reflect a significant number of religious songs. Moreover, a vocal music instructor would be expected to select any particular piece of sacred choral music, like any particular piece of secular choral music, in part for its unique qualities useful to teach a variety of vocal music skills (i.e., sight reading, intonation, harmonization, expression). Plausible secular reasons also exist for performing school choir concerts in churches and other venues associated with religious institutions. Such venues often are acoustically superior to high school auditoriums or gymnasiums, yet still provide adequate seating capacity. Moreover, by performing in such venues, an instructor can showcase his choir to the general public in an atmosphere conducive to the performance of serious choral music …. We see no reason to conclude that defendants’ selection of religious songs and religious performance venues serves an impermissible purpose simply because some of those songs and venues, which undisputedly represent only part of the choir’s repertoire and performance venues, may coincide with religious beliefs different from those of [the plaintiff].

Next, the court concluded that the “primary effect” of the choir’s performance of religious music and the use of churches for some concerts did not advance religion:

We believe a reasonable observer aware of the purpose, context and history of public education in Salt Lake City, including the historical tension between the government and the Mormon Church, and the traditional and ubiquitous presence of religious themes in vocal music, would perceive the following with respect to [the plaintiff’s] factual allegations concerning the choir curriculum and performance venues: the choir represents one of Salt Lake City’s public high schools and is comprised of a diverse group of students; many of the choir’s songs have religious content-content predominately representative of Judeo—Christian beliefs; in contrast to a church choir, this choir also performs a variety of secular songs; the choir’s talent is displayed in the diverse array of songs performed and in a number of different public (religious and nonreligious) settings, all of which reflect the community’s culture and heritage. Certainly, any given observer will give more or less meaning to the lyrics of a particular song sung in a particular venue based on that observer’s individual experiences and spiritual beliefs. However, the natural consequences of the choir’s alleged activities, viewed in context and in their entirety by a reasonable observer, would not be the advancement or endorsement of religion.

The court concluded that the choir’s practices did not result in an impermissible “entanglement” between church and state: “[W]e believe a reasonable observer would conclude the selection of religious songs from a body of choral music predominated by songs with religious themes and text, and the selection of public performance venues affiliated with religious institutions, without more, amount to religiously neutral educational choices. Consequently, we perceive no state involvement with recognized religious activity.”

Free exercise of religion

The court also rejected the student’s claim that the choir’s practices violated her first amendment right to freely exercise her religion. It noted that to state a claim for relief under the first amendment’s free exercise of religion clause a plaintiff “must allege something more than the fact the song lyrics and performance sites offended her personal religious beliefs. She must allege facts demonstrating the challenged action created a burden on the exercise of her religion.” The court pointed out that the student was given the option of not participating in choir activities if such participation conflicted with her religious beliefs. And, she was assured that her choir grade would not be affected by any limited participation. The court concluded that “the fact [that the student] had a choice whether or not to sing songs she believed infringed upon her exercise of religious freedom, with no adverse impact on her academic record, negates the element of coercion and therefore defeats her free exercise claim.” Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997).
[Use of Public Property for Religious Purposes]

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