- Associated Press - Wednesday, December 2, 2015

SOUTH BEND, Ind. (AP) - A northern Indiana school district was banned Wednesday from including a live Nativity scene as part of its annual Christmas show, with a federal judge saying that it improperly endorses a religion.

“The court concludes that, based on the manner in which it is presented and its current context within the show, the living Nativity scene impermissibly conveys an endorsement of religion and thus runs afoul of the Establishment Clause,” U.S. District Judge Jon DeGuilio wrote in issuing a preliminary injunction against the district.

He also wrote that the plaintiffs - the Freedom From Religion Foundation and the American Civil Liberties Union - are likely to succeed in their lawsuit when the case goes to court Jan. 7.

Concord Community Schools Superintendent John Trout issued a statement saying the school district in Elkhart, about 15 miles east of South Bend, was disappointed in the ruling but that the Concord High School music department is working overtime to insure that its Christmas Spectacular performance, scheduled for Dec. 12 and 13, complies with the court’s order.

Trout added that the district is considering appealing ban on the live Nativity scene, which has been included in its annual Christmas show since 1970.

The lawsuit was filed in October on behalf of a high school student and his father, saying the show endorses Christianity.

The school district, which has about 5,300 students, made some changes to the show this year after the lawsuit was filed, including removing Bible readings and adding songs related to Hanukkah and Kwanzaa. The school district argued that the modified show complied with the Establishment Clause, which prohibits government from endorsing a religion.

DeGuilio rejected the argument by the school district that the lawsuit was filed prematurely because the defendants didn’t know what would be in the show, saying that the show had been substantially the same for possibly 45 years.

He also wrote that the Nativity scene gets 12 minutes of stage time, longer than any other part of the show, and has a more solemn and reverent feel.

“A reasonable observer could perceive that the Nativity scene is actually on stage for the religious message it conveys instead of as an outlet for the performing talents of the students or for the pedagogical value of its performance,” he wrote.

He also wrote that while request for the injunction was overbroad, he said the school district “has not suggested any middle ground.”

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