by Robert Wiener
NJJN Staff Writer

January 1, 2009

Jewish organizations are gearing up for a new round in an ongoing court battle over a ban on religious music performances in the South Orange-Maplewood schools.

Supported by a Christian advocacy group, a Maplewood man named Michael Stratechuk and his two sons have spent four years seeking to overturn the school district’s strict ban on the performance of religious music at school-sponsored events.

In the latest move, Stratechuk and the Thomas More Law Center are asking the Third Circuit Court of Appeals in Philadelphia to overturn a lower court’s decision in favor of the ban.

A lawyer for the American Jewish Congress is organizing opposition to Stratechuk’s latest legal move.
“We are in the process of preparing a brief with several other Jewish groups,” said Marc Stern, acting co-executive director of the American Jewish Congress and codirector of its Commission on Law and Social Action.

Because his work was not yet completed, Stern declined to identify those groups, other than as “the usual suspects.”

Their brief is due in court on Jan. 23.

Stern said the South Orange-Maplewood dispute was one of several recent cases in which Christian groups have insisted that a ban on Christmas music infringes on religious freedom.

“The claim is made that if you don’t affirmatively include religion you are either hostile to religion or changing the nature of Christmas and the government is without the power to change the nature of Christmas from a religious to a secular holiday,” he said.

“But we are suggesting it is well within the educational discretion of school officials and they are certainly entitled to do that,” he said.

“That is the fight.”

Constitutional issues

The school district became Exhibit A in the seasonal “War on Christmas” controversy in 2004, when Stratechuk challenged a policy adopted by the district in 2001. The policy says that music programs presented by student groups “should not have a religious orientation or focus on religious holidays.”
In a brief filed with the Third Circuit Court on Dec. 23, the Michigan-based More law center argued that “the school district’s ban on Christmas music conveys the impermissible, government-sponsored message of disapproval of and hostility toward religion,” in violation of the Establishment Clause of the Constitution.

The brief also claims the ban deprives students of the right to receive information and ideas, “an inherent corollary of their First Amendment rights to freedom of speech and academic freedom.”
In a press release, Robert Muise, the law center attorney arguing on behalf of the Stratechuks, said, “Christmas is a national holiday, and religious music in the public schools is one of the rich traditions of this season. Those that are hostile to these traditions hide behind the mantle of ‘tolerance,’ only to promote intolerance.” 

“We are seeing an anti-Christian shift in the public schools and their long-held traditions,” Muise told NJJN in a telephone interview. “I think if we prevail, hopefully we can stem the tide in school districts like Maplewood-South Orange.”

He said he believes the appellate court will be sympathetic to 15 volumes of evidence he is submitting for review.

“I like our chances,” he said.

Stern said his opponents’ “very hard-line view” will “make it easier” for the AJCongress position to prevail.

“In this case, we will be arguing that courts ought to defer to school officials’ judgment,” Stern said. “They have not banned religious music altogether. They have simply asked, ‘Under what circumstance is it played?’ If it is in a clear and immediately evident educational context, you can clearly play religious music, but not if it is in a celebratory event like an assembly.

“Not only do you have arguments about what the Constitution requires, you can argue about judicial deference to educational judgment. So in general that makes our case easier to do.”

Win or lose, Muise said, he will continue pressing his case for Christmas carols in public schools.

“If we don’t prevail, then I think that trend is going to continue until we get another case, battle it, and perhaps prevail,” he said.

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