Judge Easterbrook's passion

Lorraine Bailey's reported at Courthouse News Service that the United States Court of Appeals for the Seventh Circuit Hears Dispute Over High School’s Live Nativity. Before the court was an appeal by The Freedom From Religion Foundation and the ACLU of Indiana from a decision by a U.S. District Court that an Indiana public high school's annual "Christmas Spectacular" had been unconstitutional (too close to the establishment of religion) in 2014 but any such problems were eliminated by changes to the 2015 performance.

"At oral arguments before the Seventh Circuit on Tuesday, ACLU attorney Gavin M. Rose told the court, 'The school does not attempt to defend [the 2014] version of the performance, nor could it.'

"But he argued that the 2015 changes are 'cosmetic at best,' as the performance still requires students to prepare for and perform 24 minutes worth of religious material.

"Judge Frank Easterbrook told Rose it sounded like he was asking the court to edit a play.

"'I have a lot of trouble with an argument asking us to be a censor,' Easterbrook said. 'You’re asking me to be a censor.'

"Easterbrook added, 'As much as I admire Cato the Elder, that’s not what I’m sure an Article III judge is,' referring to the Roman senator also known as Cato the Censor for his efforts to censor the influence of Hellenic culture in Rome."

Referring to that Article of the U.S. Constitution regarding the federal judiciary.

After the school made its arguments, the appellants have a chance to respond.

"On rebuttal, Judge Easterbrook again pressed Rose how strict of a line the ACLU sought to draw on the performance of religious art in a public high school.

"'What about a performance of Bach’s St. Matthew’s Passion?' he asked Rose.

"Rose replied, 'I have to admit, your Honor, I am not familiar with the piece.'

"Easterbrook looked truly appalled at the response.

"'Oh dear, that is a problem,' he said. 'Well let me just tell you, that during the St. Matthew’s Passion a character called the Evangelist reads the text of the Gospel of St. Matthew, and then there are lots of other religious figures.

"'It’s one of the most venerated pieces in the history of music,' Easterbrook continued. 'Not being familiar with it is hard for me to understand.'

"Rose apologized for his lack of musical knowledge, but went ahead and suggested that perhaps Bach’s sacred oratorio would also raise Establishment Clause concerns."

Here's a performance, Karl Richter conducting, at YouTube.