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EDITORIAL: Religious free speech denied

- The Washington Times - Thursday, March 25, 2010

The Supreme Court failed in its duty to protect free speech and defend against anti-religious bigotry on Monday. Without explanation, the court refused to hear an important case arising from a musical incident at an Everett, Wash., public high school.

As was standard practice, the band director at Jackson High had instructed his class of 2006 seniors to choose any song from their musical repertoire to play at their commencement ceremony. Members of the wind ensemble selected an instrumental version of Franz Biebl's "Ave Maria" (without the famous religiously themed lyrics). The students argued that they sought only to "play a pretty piece." There was nothing out-of-the-ordinary about the choice. The students had played plenty of other such tunes at school functions, including graduations. Beautiful melodies are frequently borrowed from a religious context.

This time, though, school officials nixed the choice, insisting that the title and meaning of the piece had "religious connotations." The school district's associate superintendent issued a directive to principals mandating that musical selections for all graduations within the district should be "purely secular."

The students sued and lost. On appeal, the U.S. 9th Circuit Court of Appeals agreed that the instrumental piece was a form of free speech ordinarily protected by the First Amendment because, as even the school district conceded, it had created a "limited public forum" by allowing the students to choose their selection. Nonetheless, the court argued that it was reasonable for school officials to prohibit the performance of an "obviously religious piece."

In a rare move, Supreme Court Justice Samuel A. Alito Jr. penned a dissent to his colleagues' unexplained and inexplicable decision to allow the 9th Circuit ruling to stand. "When a public school purports to allow students to express themselves," he wrote, "it must respect the students' free-speech rights. School administrators may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administrator is pulling the strings."

We're not sure what constituencies administrators and the court majorities are trying to please. After all, even atheists should be troubled at the potential loss of good music and the diminishing of America's musical heritage. Can a band no longer play "The Battle Hymn of the Republic"? Would a school jazz ensemble in New Orleans be banned from performing "When the Saints Go Marching In"?

The Supreme Court should revisit this issue and put a stop to the unconstitutional government attempts to stamp out "religious significance" from all aspects of our culture.