Tuesday, September 08, 2009

Nurre v. Whitehead (9th Cir. - Sept. 8, 2009)

We know you can't (usually) have a prayer at your high school graduation ceremony. What about singing Ave Maria? Do you have a First Amendment right to do so? Or can a school legitimately prohibit such a religious performance at graduation based upon a desire for inclusiveness and previous complaints?

You've got a pretty favorable pro-plaintiff panel drawn for this one, at least relatively: Judges Beezer, Tallman and Milan Smith. The majority -- in an opinion written by Judge Tallman -- concludes that the plaintiff's rights weren't violated by the prohibition. Judge Smith, by contrast, concludes that plaintiff had a First Amendment right to play the song at graduation.

Judge Tallman understandably writes a fairly narrow opinion; indeed, one that's much more constained and limited than the one that'd be written by a number of other judges on the Ninth. A good sense of the tone and content of his opinion can be obtained by reading the following paragraph therein:

"Contrary to Judge Milan Smith’s understanding of our holding, we do not seek to remove all religious musical work from a school ensemble’s repertoire. Nor do we intend to substantially limit when such music may be played. We agree with him that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries of music history. Instead, we confine our analysis to the narrow conclusion that when there is a captive audience at a graduation ceremony, which spans a finite amount of time, and during which the demand for equal time is so great that comparable non-religious musical works might not be presented, it is reasonable for a school official to prohibit the performance of an obviously religious piece."

Moderate. Respectful. Deferential to the role of religion in society. As well as to the decisions of government officials in attempting to balance potential Establishment Clause problems.

Judge Smith comes out the other way, with a warning of the dire consequences of today's decision, saying that "the practical effect" of this opinion "will be for public school administrators to chill—or even kill—musical and artistic presentations by their students in school-sponsored limited public fora where those presentations contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person’s views may be." Judge Smith also repeats the type of "culture wars" refrain we increasingly see from some conservative members of the judiciary (and elsewhere). For example, in the following line: "The taking of such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage."

Judge Smith ultimately concludes that school officials had qualified immunity, however, and I think that of all the lines in his opinion, this one rings the most true to me: "I readily acknowledge that no bright lines exist in this complex field of First Amendment law, and I sympathize with school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take. Because of this unfortunate reality, I conclude that qualified immunity is appropriate in this case." But in the very next line, Judge Smith says: "But I also believe that, unless the courts provide balanced guidance on where those not-so-bright lines lie, we only perpetuate the confusion, encourage further litigation, and stunt student artistic expression in violation of the First Amendment." The problem, to me, is that even under Judge Smith's view, it's exceedingly difficult (if not impossible) to figure out where those lines exist -- even for individual judges (like Judge Smith), much less for an entire circuit (or the judiciary as a whole). For example, Judge Smith's opinion appears to agree -- though even this is far from clear -- that school officials could prohibit playing Up Above My Head at graduation, as (according to Judge Smith) that particular song says the word "Lord," refers to "heaven," and arguably (though disputedly) refers to Jesus Christ. But is even Ave Maria itself really that different? From my (largely uninformed) viewpoint, personally, I can recognize Ave Maria pretty readily, and my longstanding belief was that it's a deeply religious song, whereas I don't really know anything all (nor have any preconceived notions) about Up Above My Head. Which I admit sounds religious too, but I hardly view 'em as wildly divergent; indeed, when I listened to the latter, I was mostly just rocking out, and didn't for even a second really even think about its message. Whereas that's definitely not the case with Ave Maria. In any event, wholly beyond the particular songs here, as a doctrinal matter, Judge Smith doesn't really provide any real guidelines (much less "rules") about which songs can be constrained and which ones students have a First Amendment right to sing to a captive audience, and that seems a problem to me.

Moreover, some of what Judge Smith says just strikes me as factually wrong. He says, for example, that "the playing of the Ave Maria arrangement could not have reasonably been interpreted to convey a religious
message," and is instead just a "pretty piece." Really?! Maybe I'm an example of someone who's unreasonable (though I think not). But when I hear the words "Ave Maria", my head also says "Religious". So, for example, when I hear a reference to the Ave Maria Law School, I don't think: "Synonym for 'Pretty School'". I instead think: "Synonym for 'Religious School'". Ditto for music. You sing "Hosanah in the Highest" at graduation and I'm pretty sure even Judge Smith's going to agree that's uncool.

So maybe at the end of the day we're talking about a judgment call. Since I agree that, at the one end, there are songs like When the Saints Go Marching In that are pretty much secular at this point, and maybe (though I'm not entirely positive even on this point) school officials shouldn't be allowed to prohibit them on the ground that someone in a captive audience might react negatively. But I'm not sure Judge Smith has persuaded me that Ave Maria is in the same class. Even the "contemporary", purely instrumental version.

I also wonder -- though perhaps this is just the cynic in me -- if even Judge Smith believes the strong version of what he's saying. To take one example: He asserts, as a factual matter, that Ave Maria has "a title in a dead language whose meaning would be unrecognizable to most attendees of the graduation." Really? I agree that the title is in a dead language, and one which I personally know almost nothing about. But do you really think that most average attendees of a high school graduation, upon hearing the title Ave Maria, wouldn't have any idea about the meaning of those words? Wouldn't be able to say, as I would: "Look, I don't have any idea who Ave Maria was, or what (in Italian, Latin or otherwise) the song's about, but I'm pretty darn sure it's religious; probably some Saint or something."? As a factual matter, I just think I disagree with Judge Smith. I think the fact that it's in Latin doesn't stop it from being "recognizable" to the average person. Far from it. And I'm not at all someone who has an overly charitable view of the cultural intelligence of the common man.

So this is a problem, I concede. Some songs you can prohibit, at least at a state-sponsored, time-limited forum in a ceremony with no real alternative. Maybe we're reluctant to say that you can prohibit any song in such an arena for fear that school officials might ban Born to Run or some other obviously secular song. (Or maybe we are willing to vest that decision entirely in school officials; I don't know).

But is seems to me that Ave Maria is in a different class. Nearer to "Our Father" than "Crimson and Clover". I'm not sure I can draw a definitive line. Nor that anyone can. But wherever the line is, I think that Judge Tallman is right that this particular song is over it.