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Gavin Rose, an attorney with the American Civil Liberties Union, was musically unprepared for his appearance at the U.S. Seventh Circuit Court of Appeals.
Judge Frank Easterbrook, considering the ACLU's challenge to a Christmas concert at an Indiana high school, asked Rose whether Bach's "St. Matthew's Passion" would violate the U.S. Constitution. Rose said he didn't know the piece and apologized for his lack of musical knowledge.
"Oh dear, that is a problem," Easterbrook said in Freedom From Religion Foundation v. Concord Community Schools.
The ACLU and the Freedom From Religion Foundation sued over Concord High School's "Christmas Spectacular," an annual event for the past 45 years. Until 2015, the 90-minute program featured a live nativity scene and readings from the Bible about the birth of Jesus Christ.
After the lawsuit was filed, the high school changed the performance to omit the Bible readings and added a Hanukkah song and Kwanzaa song. It also also cut the nativity performance from 12 to two minutes.
A trial judge said the pre-2015 show violated the Establishment Clause, but the revised show passed constitutional muster. In argument to the Seventh Circuit, Rose said the changes were "cosmetic at best."
Easterbrook said it sounded like the ACLU was asking the court to edit a play. Courthouse News reported the judge appeared "truly appalled" that the lawyer did not know about St. Matthew's Passion.
"It's one of the most venerated pieces in the history of music," Easterbrook said. "Not being familiar with it is hard for me to understand."
The judge said the oratorio features a character named the Evangelist who sings the story from the Gospel of St. Matthew. Rose said it might violate the Constitution if it were performed at a public school.
Judge Diane Sykes came at the issue from the same direction. She said the changes to the "Christmas Spectacular" were "just window dressing."
"It's a Christmas concert, not a Hanukkah concert or a Kwanzaa concert," she told the school's attorney. "You added these songs to inoculate the performance from the Establishment Clause."
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