MewsHour Online: Church and State

DECEMBER DILEMMA

DECEMBER 22, 1995

TRANSCRIPT

The December holiday season presents special problems for public schools around the country. Richard Ostling, religion correspondent for Time Magazine, reports.

(CHOIR SINGING "ANGELS WE HAVE HEARD ON HIGH")
RICHARD OSTLING: Carols at Christmas time, for millions a tableau as American as turkey dinner at Thanksgiving or firecrackers on the Fourth of July. But Richard Torgeson and his a capella choir at West High School in Salt Lake City, Utah, are in trouble over holiday performances of Christian music for churches and community groups. Torgeson and the school are being sued in federal court by 16 year old Rachel Bauchman, a former choir member who's president of the Jewish Youth Organization in Utah. She sued because last year's December concerts used only Christian songs. She contends that's unfair to non-believers and minority group members like herself.
RACHEL BAUCHMAN, Plaintiff: The issue that I was concerned about was that 10 songs were praising Jesus, and it wasn't a neutral repertoire. Umm, I wouldn't have had a problem--I don't have a problem with religion in the public schools as long as it remains neutral, so that no one member of a faith will feel excluded or like a second class citizen in their own public school.
RICHARD OSTLING: Just before this year's high school graduation, Rachel also got a federal appeals court to bar the choir from singing two numbers with religious, though not specifically Christian, words. In protest, students and parents sang the forbidden number titled "Friends" on their own.
MALE GRADUATE: (running to podium) We sing it not as Christians, Jews, or Muslims. We sing it as friends.
PEOPLE SINGING: It won't even--
RICHARD OSTLING: Rachel's complaints about graduation and Christmas became big news in a city where members of the Mormon religion predominate and Jews are few in number. The dispute has also won nationwide attention since many public schools face similar conflicts over religious music. Rachel has become a heroine among groups that advocate strict legal separation of church and state.
SPOKESMAN: The James Madison Memorial Committee on the 3rd day of November, 1995, hereby confer upon Rachel Bauchman the James Madison Freedom Award for her heroic defense of the First Amendment and the principle of separation of church and state so vital to the American republic.
RACHEL BAUCHMAN: I didn't feel that as a Jew I could honestly, in a good conscience, sing these particular pieces. They made me extremely uncomfortable. I wouldn't have felt as uncomfortable seeing just one or two of those selections, but the fact of the matter was that all of these pieces were praising a man, Jesus, whom I don't believe is the Messiah. I respect Jesus as a historical figure but not to the point where I want to worship him daily in class.
RICHARD OSTLING: Rachel's lawsuit is based on the phrase in the Bill of Rights that forbids an establishment of religion by government. There's considerable disagreement over what that means. Divided rulings by the Supreme Court have permitted some holiday displays on public grounds and forbidden others and have banished clergy prayers at graduation. But the nation's highest court has never ruled on whether a high school choir can sing Christmas music or how much of it, or how classical it must be, or whether a choir can sing in a church. Those are all issues in the Salt Lake City dispute. The closest parallel is a 1980 case from South Dakota, but that came from a lower federal court and involved only songs in an elementary school classroom.
(CHOIR SINGING)
RICHARD OSTLING: Rachel's lawsuit, says choir director Torgeson, a devout Mormon, used songs for religious purposes, not just for art or entertainment. It contends he has a long history of religious advocacy. In the past, he's led a prayer with the choir and had it sing in Mormon worship services, practices the high school no longer allows. On the advice of his lawyer, Torgeson declined to be interviewed for this report. Rachel's lawyer, Andrew Hruska, who's working for a coalition of national educational and other organizations, says some religious music is permissible, but Torgeson crossed the line.
ANDREW HRUSKA, Plaintiff's Lawyer: You can teach about religion, and that includes teaching about songs that have religious themes. When it becomes unconstitutional is when you're using that music in order to teach religion, itself, to advocate the religious beliefs expressed in the music. The way to draw the line, when one needs to be drawn, is to say, you've gone too far if what you're doing is predominantly religious, because there's so much music out there to make it mainly religious music, evidences a clear intent to promote that religion.
RICHARD OSTLING: Utah Assistant Attorney General Dan Larsen, who's defending the high school and its employees, says they did nothing illegal.
DAN LARSEN, Assistant Attorney General, Utah: The school does not have any intention of trying to promote a particular religion or religion in general. It's--many of the songs have historical value, cultural value. Singing or performing those Christmas songs is not a prayer, it's not a religious exercise, it's not asking deity for assistance or guidance. It's, it's a performance of a song that has its roots in cultural or society values.
RICHARD OSTLING: Many choir members feel that Rachel is seeking to limit their rights.
NATHAN RICHARDS, Choir Member: She's taking it way too far in that she's trying to make us all not sing it. I think we can celebrate in your own way. Christmas music is a big part of my life and a whole bunch of the a capella members.
KELLY PALUSO, Choir Member: I am not a religious person at all, and I have never had a problem. Every single person in a capella, and everybody single person in chorale know that I'm not religious, and they are totally accepting of me and my beliefs.
RICHARD OSTLING: The Utah Christmas carol dispute comes at a time when some Americans argue strongly that the federal courts have gone too far in separating church and state. Early in the new year, the Judiciary Committee of the U.S. House of Representatives will take up two so-called religious equality amendments to the Constitution. The amendments would overturn Supreme Court rulings and allow more religious expression in public life, including the schools. Problems like that confronting West High School were addressed this year by President Clinton. He opposes the constitutional amendments but has advised all U.S. schools that they may have gone too far in eliminating religion.
PRESIDENT CLINTON: (July 12, 1995) Some school officials and teachers and parents believe that the Constitution forbids any religious expression at all in public schools. That is wrong. Our courts have made it clear that that is wrong. It is also not a good idea. Religion is too important to our history and our heritage for us to keep it out of our schools. Once again, it shouldn't be demanded, but as long as it is not sponsored by school officials and doesn't interfere with other children's rights, it mustn't be denied.
CHARLES HAYNES, First Amendment Center: And as citizens, we do have an agreement in this country. We have a charter. We have a Constitution, we have a Bill of Rights.
RICHARD OSTLING: Charles Haynes, who's been advising the Clinton administration, specializes in religious liberty issues at Vanderbilt University's Freedom Forum Center.
CHARLES HAYNES: We're arguing tonight for a civil public school, where people of all faiths and none are treated with respect, with fairness. Now, that's a hard vision to carry out.
RICHARD OSTLING: Haynes conducts workshops across the country. He recently convened 100 concerned parents in Nashville to discuss all aspects of religion in the schools.
AILEEN KATCHER, Parent: And I'm particularly interested in your viewpoint of what we call around our house the December dilemma, and how the public schools ought to deal with that.
CHARLES HAYNES: I think one of the reasons it's so emotional is because some people think it's the last place you have any sort of religious expression, and other people think, you know, it's the last vestige of a school trying to impose something on us. So on both sides, people have claims of conscience that are really disturbing to them.
RICHARD OSTLING: Haynes says Christmas music disputes are best handled through wide community discussion, rather than lawsuits, and are only part of a much broader problem.
CHARLES HAYNES: I think the December dilemma keeps coming up again and again because we really haven't tried to get the whole school right in how it treats religion throughout the year. It points to how little trust there is on all sides of these issues. And what's really at stake in the December dilemma is not so much how many carols do we sing or whether Santa can be decorated in the school and so forth. What's really at stake is what kind of school are we going to have, what kind of nation is this, and that moment in December becomes an opportunity for people to say, look, we've been left out, or we've been treated badly on one side or the other. So that's why I think we need to take these December crises very seriously but use them to address the whole school culture, what we're doing throughout the school year.
(CHOIR SINGING "SILENT NIGHT")
RICHARD OSTLING: The December dilemma in Salt Lake City and other communities is increasingly difficult as America becomes more diverse religiously. Even without court orders, many schools have quietly decided to play down or eliminate religious music at Christmas time. Rachel Bauchman's federal lawsuit will define policy for the schools in several western states. And if the U.S. Supreme Court eventually takes the case, it would affect the music program of every public school in America.


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