Sacred music and the Establishment Clause

My last post on patriotic music in church got me thinking of sort of the opposite side of that coin – sacred music in the public sphere.  Specifically in public schools.   Last year, a U.S. Appeals Court in New Jersey upheld the Maplewood – Orange County school district’s decision to ban all religious music in school performances.  The ban had been in place since 1990, but when the school district expanded it to include instrumental versions of religious songs in 2004, a parent filed a lawsuit saying that the ban violated the Establishment Clause of the First Amendment to the U.S. Constitution, which states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

After the Court’s decision, the plaintiff’s lawyer said, “The establishment clause requires the government to be neutral to religion. A policy that makes exclusions based solely on religion is hardly a policy that is neutral to religion.”  He said his client’s intention is to ask the court to rehear the case, and if they decline, to take it to the Supreme Court.  The panel of three appellate court judges said there was no constitutional violation in the policy because other constitutional principles require public schools to be secular.

But are being neutral to religion and being secular the same thing?   I am no constitutional scholar and better minds than mine can argue this issue, but I don’t think they are.   Specifying that all content must be secular is treating all religions the same in only one way – ignoring them completely.  Surely there’s a better way to achieve neutrality than that?

I’d bet the reason the school district devised this policy is that they don’t want to have to field a million questions from parents about why there were three Christmas songs but only two Hannukah songs in the program, or why they left out a Baah’ai song or a pagan reading.   Perfect neutrality is hard to achieve, and any particular program would never please everyone.

But the decision the court had to make was not about whether the First Amendment is easy or hard to enforce.  It’s about whether or not this school district’s policy is constitutional.  They made their call, but it doesn’t seem like the right one to me.  It also raises an issue that is dear to my heart, which is classical music.  If the New Jersey schools are truly going to avoid all religious music, even instrumental religious music, they are going to be hard pressed to find anything from the Baroque, Rennaisance, and Medieval periods that they can sing or play.  Yes, there is extant secular music from these periods, but virtually every note Bach wrote was in some way religious.  Many of the great works, especially the choral works, of Mozart, Mendelssohn, and Schubert are also religious.  The Church used to be the biggest supporter of music composition, and students will have a seriously lacking musical education if they ignore these works.  So one could argue that there is educational value in some sacred music, and it should be included in school curriculum and performances for that reason.  But again, the court wasn’t examining educational merit.  The question was, is including sacred music of any kind an automatic violation of the Establishment Clause?

What do you think?