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Third Circuit upholds school ban on religious holiday song performances

[JURIST] A US Court of Appeals for the Third Circuit [official website] panel ruled [opinion, PDF] Tuesday that a school district's policy prohibiting the performance of religious holiday songs does not violate the First Amendment Establishment Clause [Cornell LII backgrounder]. Plaintiff Michael Stratechuk argued that the policy of the School District of South Orange and Maplewood [official website] in New Jersey, which prohibits the performance of religious holiday music had the impermissible purpose and effect of condemning religion. In rejecting Stratechuk's claim and affirming the district court's decision [opinion], the Third Circuit held that the policy was neutral toward religion and that it was a permissible way to ensure that the school did not violate the First Amendment by promoting religion.

We note with approval the District Court’s observation that the restriction on “the performance of holiday music, which changed earlier practices within the School District...[did not] automatically convey a message of disapproval of religion because as the Supreme Court observed in County of Allegheny, '[a] secular state, it must be remembered, is not the same as an atheistic or antireligious state.'"

The court noted that the school district allows the teaching of religious holiday songs, and that its music teachers routinely use them in class, so that the ban merely prohibits the public performance of the songs at related holiday events. Stratechuk's lawyer said Stratechuk will request [NJ Ledger report] that the full court rehear the case.

Last month, the US Supreme Court heard oral arguments [JURIST report] in Salazar v. Bueno, a prominent Establishment Clause case regarding the legality of a cross on government land and whether transferring the land to a private party would cure the violation if one existed. In 2007, the US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the display violated the Establishment Clause and that transferring the land would not cure that violation.

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