Seventh Circuit Judicial Panel Rules that a Revised Indiana High School Holiday Show Passes Constitutional Muster

On March 21, 2018, in Freedom From Religion Foundation v. Concord Cmty. Sch., the U.S. Court of Appeals for the Seventh Circuit ruled that an Indiana school district’s final revision to a long-running winter holiday show, the “Christmas Spectacular,” survived a constitutional Establishment Clause challenge. Specifically, the three-judge panel concluded that a reasonable observer would not find a religious message or endorsement of religion within the show.

Concord High School’s 90-minute production of their “Christmas Spectacular” had been held for over 40 years when, in August 2015, the Freedom From Religion Foundation, Inc. organization filed suit against the school district on behalf of a Concord parent and his child regarding the religious nature of the show’s second half.  The 30-minute second half included a 20-minute segment called, “The Story of Christmas,” which featured religious songs, a narrator reading from the New Testament, and student actors in costume traveling across the stage and posing in a nativity scene until the close of the show.

Pursuant to the pending lawsuit, Concord volunteered to remove the scripture readings from the nativity scene and add two songs about Hanukkah and Kwanzaa to the beginning of the 2015 show’s second half.  The district court concluded that the proposed edits did not adequately address the Establishment Clause issues, as the live nativity scene constituted an endorsement of religion.

Adhering to the language within court’s injunctive order, which prohibited Concord from “organizing, rehearsing, presenting or intentionally allowing to be presented any portrayal of a Nativity scene composed of live performers,” the high school presented a two-minute static nativity scene with no student actors.  In February 2016, the plaintiffs amended their complaint to allege that the new 2015 version remained unconstitutional.

In its decision, the Seventh Circuit reasoned that the show was “primarily a non-religious seasonal celebration,” involving approximately 600 students highlighting their talents in choral, instrumental, and dance performances, while also designing and creating the costumes, sets, and props. Additionally, the nativity tableau no longer stands out; rather, it has become “just another visual complement for a single song.”  As such, the Court concluded that a reasonable audience member who attended the full 90-minute Spectacular “would not understand the production to be ratifying a religious message.”

Judge Easterbrook, concurring in judgment only, criticized the majority option by stating, “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.”

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