“Silent Night” and the establishment clause

I’m in a Scroogish mood, so I’m going to vent a little about this annoying news story from a few days ago:

School Omits ‘Christ’ from ‘Silent Night,’ Upsetting Parents (Yahoo Shine)

What’s annoying is how the discourse about this incident, as communicated in the news story, revolves around people being “offended.” First the organizers of this public school concert edited the lyrics to make them less overtly Christian so as not to offend non-Christians. Then Christians started howling reverse discrimination because no one cared that they’re offended. As one parent quoted in the news story put it: “It’s offensive . . . If you’re going to remove words to not offend other religions, what about the religion that that song belongs to, which is Christianity?” And then the school district scrambled to apologize to everyone they had offended.

Look, people–whether or not “Silent Night,” or the editing of “Silent Night,” offends someone is not the issue. I mean, yes, obviously, it’s an issue in the political sense that people who feel offended, one way or another, are going to make trouble for the school district. (In this particular case, the offended Christians appear to have screamed loudest–a perhaps predictable outcome given that they’re a majority who perceive themselves as a persecuted minority.) But offensiveness is not the legal or constitutional question at stake here. What matters, constitutionally, is not whether or not someone is offended by the singing of “Silent Night.” What matters is whether or not singing “Silent Night” at a public school concert constitutes an “establishment of religion,” proscribed by the First Amendment.

Maybe you think it does, maybe you think it doesn’t. The Supreme Court would undoubtedly prove divided over that question, so why shouldn’t the rest of the country be? But whatever you think about the question, “Is singing ‘Silent Night’ at a public school an establishment of religion?”, your answer is going to require you to make philosophical and historical arguments about the meaning of “establishment of religion.” You’re going to need more than a mood ring that shows you’re “offended.”

I was pleased that the news story provided a helpful explanation of the constitutional complexities involved in this particular case. An attorney from the Freedom from Religion Foundation is quoted explaining that courts tend to be even more nervous about religion in Christmas celebrations in public schools than they are about things like nativity scenes in courthouses because (a) children are involved, and (b) their presence is mandatory. On the other hand, the attorney explains, the courts have been somewhat permissive about religious music because it can seen as having artistic or cultural value apart from its religious meaning.

Unfortunately, having offered that nuanced explanation, the attorney then lapses back into “mood ring” language. Better to choose secular songs for your Christmas concert, she suggests. That way, “nobody’s excluded, nobody’s offended.” Ack.

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