good morning ladies and gentlemen our first case for this morning is freedom from religion foundation against concord community schools  thank you your honor and may replace the court for nearly half a century the christmas spectacular staged by concord high school each winter has concluded with a twenty minute performance dedicated to the religious aspects of christmas prior to this litigation that performance included a faculty member reading the story of christmas as it appears in the new testament as well as a quote unquote living nativities where students stood still to represent the various figures in that story the school does not attempt to defend this version of a spectacular nor could it and its defense of the current version does not fare any better even with the singular songs devoted to the other winter holidays and with the substitution of man students when the native ideas unveiled this performance still violates the coercion test the endorsement test and lemons first prong the district court's conclusion to the contrary should be reversed there was no however no other error in the district court's decisions and the declaratory really phenomenal damages awards should be affirmed no matter what constitutional lens we view the christmas performance through the scope of this performance as well as  startling are we focusing only on the second half or do you think we should look at the entire performance the judge judge that's a that's a difficult question to  answer certainly under endorsement analysis at least i think it is permissible to take a macro view of the performance but the question really is does what came before the christmas performance somehow told the religious overtones of the religious message being conveyed through that performance in other words i mean that you and i hope we're both talking about the same thing i gather the first half of the performance is called magic of the season and you're not making any complaint about that no no we're not your honor and the second half after the intermission is called something like spirit of the season and that is what you have focused on so i'm wondering whether whether we look at this is a as a ninety minute show or whether we look at it it's just the second half you know how how do we evaluate i think the school has definitely attempted to do something unique with the second half or different with the second half that makes it very difficult for them to say that what they put on during the first hour of the show somehow takes away from from the religious message is somehow part of the same message in the in the way that the other religious impact as as i say is startling the differences between this version of the christmas spectacular there and the version that they have they have staged under the title the story of christmas for decades are cosmetic best even though when a member of the faculty no longer reads directly from the new testament for twenty four minutes now the school is still relying on student performers to celebrate the story of the birth of christ and this performance still stands head and shoulders above anything else on the evening it is the only performance consisting of multiple songs it is the only performance staged by multiple groups and it is the only performance that has been staged  substantially identical form for the past one i'm not sure what your position is is it your position that the first amendment bars any presentation of a nativity scene period no no of course not your honor we have then what worries me is if it's not a position that a nativity scene is just forbid and it sounds like you're asking us to edit the details of a play and it i find it very hard to see how the first amendment gives the judiciary us the position of a roman censor to pick and choose i can understand an argument for all i can understand an argument for none but i have a lot of trouble with an argument for being a censor you are obviously the first amendment the establishment clause has has gray areas in the middle where if they put forward a native city as part of a truly educational performance that acknowledged the religious traditions underlying the winter holidays but was nonetheless done in a secular fashion i think that that's something to  but you you see my trouble you're asking me to be a censor to say well here's what they can include here's what they can't i have much as i admire cato the elder i'm not sure that that's what an article three judge is supposed to do what we are asking judges for the court two of them can falut a christmas performance as it is whatever the school decides to do next is is entirely up to the school in the same way that the plaintiffs in allegheny county were saying you have to to invalidate this display and we might have a different case if they came back inside and suddenly that display were it was more akin to the display and at issue it in then she is there anything that you would regard as constitutionally acceptable short of equal time for hanukkah kwanzaa and christmas i think it is and i realize it's not equal time right now but i want to know whether that's the only acceptable solution i think if you look at the hanukkah performance the performance of on and mean and you view that performance and what you see is a brief factual basis narrative followed by a performance of students standing center stage with images associated with the holiday on video screen i think you can look at that performance and say that the school knows how to port forth an educational performance that provides information about these holidays that acknowledges these holidays without celebrating them and i think that if the school had chosen to do the same thing with christmas if they had had a choir standing center stage performance silent night or hark the herald angels sing with imagery similar to what you see in the performance of i mean i don't think we would be here today and that so even if the performance was two minutes longer or two minutes shorter i don't think the establishment clause can't can be reduced to this mathematical formula whereby you have to have five minutes for each religion the question that court has to ask is is this essentially is the school acknowledging these religions and the religious tradition at these holidays and the religious tradition that they gave birth to them or is the school endorsing the message is the school celebrating the message and we think with the performance as is that the answer is quite clearly that the school is celebrating this religious message now of course the district court disagreed with you and i want to divert you for a moment to a different topic since twenty minutes can fly by and that is i would appreciate if you would address i know now you have to put on your hat as as  address the argument that your opponents have made that the changes in version three are called version three there is the first of two thousand and fourteen there was the proposed two thousand and fifteen that was the actual twenty fifteen so i'm calling the actual version three district court finds that version three is acceptable under the establishment clause we fully understand that you contest that but suppose for the moment it is your opponents say there no longer a controversy between you and a that this somehow it because they've in various ways indicated that they will acquiesce to that and you have argued that this doesn't meet voluntary secession so i'd like you to talk about that for a minute of course your honor  and obviously the school has a heavy burden to carry to demonstrate that it will not revert to past performances what the school has come forward with is an affidavit from its superintendent saying after the two thousand and fifteen performance i had i don't mean to be overly casual but i had literal water cooler conversations i think he said that actually and people and people seem to enjoy the performance and so we have no intention of going back i think that the issue in that i think that the question of whether that is sufficient to demonstrate that they won't revert i think this case is indistinguishable from or perhaps a number of where the principal actually where the superintendent said not only are we not going to go back and conduct graduation ceremonies in the church but in fact i will veto the decision of any individual school to do so the fact of the matter is that this school speaks through its school board it has the power to enact a formal policy change if there are other such formal policies that they have not that i'm aware of and certainly not with respect to its christmas performance the fact of the matter is not a disco must have policies the board i mean there's a whole code that i can do that i'm positive they do but i don't school in the words of deputy grant would be free to revert to it to its old ways in trinity lutheran there were there was a gubernatorial announcement of a formal formal policy change and that was not sufficient and we think that the school falls falls far short of meeting what it has to be in this case as well now what's at stake with this mean that part of the argument has been with if there's another aspect of it about the nominal damages issue  is what lies behind all this attorney's fees or is this something more permanent i think what lies behind this is what we believe to be an unconstitutional performance that the school ha demonstrated over over half a century is that it wants to be able to perform and that has affected the plaintiffs that has has made their high school experience less less than enjoyable so your position must be then even even if contrary to what you're arguing we thought version three squeaked by constitutional muster or flew by constitutional muster however it did that without declaratory judgment nailing down the distinction between one and two on the one side and three on the other side you have not received the relief to which you're entitled the second half of this christmas spectacular was pervasive only religious because it dealt with religious music or the news it was like sins were explicitly religious and it included two minutes of a static nativity scene to visually illustrate one of the musical performances and that position seems to foreclose any kind of performance art that has a religious basis  and there are a lot of there's a lot of music there's a lot of hearts there's a there's a lot that is pervasively religious and that seems to foreclose that argument for closeness that in a high school setting or equates it with a form of worship or prayer and that it falls on that side of the line and therefore in permissible under the statute i don't think it does for clothes that your honor as i say i don't think that there would be an issue if one of the musical groups decided to  silent night why do about jesus christ superstar is the school musical i think that i think that that would probably be ok i think that that's not the type of event i think that that's the type of thing that has taken on a secular place in society because it's a rock musical rather being christmas carols speak it because it is i don't even think the christmas carols can take many high schools i fully acknowledge that there is a significant gray area here and where i draw the line and positive this different from where the school draws the line of both of us very well may draw the line and do it in a different place than the core but the fact of the matter is that what we have here is a twenty four minute telling of the story of the birth of jesus that culminates with a completely dark auditorium where the only visual element that simply is not this this is the type of performance that can create will create at least the same type of quote unquote subtle coercive pressure that was at issue in the film brooke during the first row address your question judge wood about whether the court should consider the ninety minute program as a whole or focus just on the last part and i think the answer based  writings from supreme court cases is that it must look at the program as a whole but there is one thing that seems we can all glean from cases like lynch and allegheny it's that context matters and here we have a ninety minute program two thirds of which is composed entirely of split all secular songs songs that talk about santa or jingle bells or text me a merry christmas then we have the break and then we have a thirty minute presentation that focuses more on tradition what i would call traditional holiday music it contains a song address with the corresponding video display some relate with kwanzaa we have kwanzaa song and a video display at those necessary to the constitutionality of this  i don't think so because reform laura lynch purposes i disagree if you look at the actual performances in addition to having the two songs and the video display you also happen narrative reading that precedes each of the performances and as this court talked about in cases such as books those kinds of readings that help give context to the display or the performance christmas concert and it is they've added the two songs to try to inoculate the district from the establishment clause challenge it when they wouldn't be there otherwise now i think it's more than that this christmas program as you describe it and then is what it's called includes again secular music and it includes songs from other faith regimes and i think that matters and i don't think simply calling them room to address fair again they are trying to provide not only a performance that the audience would enjoy but they are also trying to present education to the students that's why these programs conclude a wide variety of aspects including dance choreography stagecraft they include all these things it is more than simply a christmas concert and to say that i provide content about the winter holidays that content about religion maybe it is not the purpose to provide a program with religious content but it's also true i mean it's inescapable that part of the winter holidays includes these this type of music  whether the claim here conflates performance art putting on a play putting on a show putting on a concert with with worship you know obviously public worship in a high school is forbidden under the establishment clause those are the prayer cases yes and and whether this case falls on that side of the line or not is the core question in this case a performance art stands in a different domain it seems to me then then does prayer and other forms of worship or at least when it's conducted as a part of a long tradition of periodic concerts throughout the school year after corresponding to you know whatever is happening at that time of the year in the ordinary course of this in the life of the school i think that's correct and when you in fact you can even if you choose go beyond just this program but i want to go beyond it in a different way perhaps than you were thinking of maybe not if we're going to look at context isn't it appropriate to look at the forty five year history of the program before the two thousand and fifteen changes in which readings from the bible a much more active religious component  existed in the program surely when a whole group of people are sitting there in a collective space and somebody is reading the bible and things from the christmas section of the hymnal are being s looks a lot like a church service looks a lot like worship as opposed to watching jesus christ superstar which i will observe is relatively a gnostic about the divinity of christ i think you're right i think the court should consider the storable background of this performance but as the destroy in that make us then at least wouldn't that way on the religious side of the balance now because as the district court determined when you see the historical performance and compare it to the performance as it was approved for twenty fifty there are very significant changes and that historical perspective is helpful for the reasonable server to understand how the school has moved away from any type of religious indorsement so actually i think it it in forces the school's position that the performance in twenty fifteen was not an endorsement because of the many changes made to the program  and one of the things that opposing counsel did both in the briefing in a little bit here to that is really try to minimize what those changes were but as the district court said when the players tried to do that to understand it the part the district court seemed to focus on in part was how by having the live student performance you actually had them move across the my my belief is that that is just based on the opinion that that is what tipped the balance for the district now this court to reach a different conclusion about that i suppose but that that was the issue that i see from reading the opinion that cost the district workers so do i understand you to say that that the time is also an important thing i guess in the earlier version version one the nativity scene was on the stage for quite some time twelve thirteen minutes or so and now it's ju again we're trying to address the concerns of the district work which saw the nativity scene as being more of a focal point by being on the stage for a longer period of time so to address that this the school greatly limited the audience exposure to the nativity scene making it equal to the amount of time for the visual displays for the other two  religious performances both hanukkah and kwanzaa now under the endorsement test you know it's in its porton to consider whether somebody who is not of the majority religious group you know perhaps you know a mormon perhaps somebody of the islamic faith perhaps somebody else would feel excluded you know we talked a little bit about this in elmhurst and supreme court particularly justice o'connor is associated with this idea and so one of the ways of of asking this is i suppose if we get over the question the judge sides has raised whether this would be perceived anyway as more on the on the worship side of the line than on the other all these songs that you can even avoid if you go to a shopping mall during december because they're constantly being played out you that if you're on the worship side the line would somebody from another tradition continue to feel welcome in the school but again i think the program viewed as a whole would not create that feeling to a reasonable observer that because so what about documentation of the policy change you spend a lot of time in your brief arguing that you should be able to take advantage of the voluntary says sation doctrine but it all seems very dependent on the identity of the present superintendent someday you'll have another superintendent who may take a different view and it's not nailed down in school policy without the declaratory judgment it is certainly true there is not a written school policy from the school i don't disagree with that at all and doesn't even the most recent guidance from the supreme court tell us that we need something very clear if we're going to invoke voluntary cessation in late law that is certainly something the court said well and even in the trinity lutheran case although i know that's a free exercise case but the issue was the same question but it's also tru correction so long as they appear genuine there are well that would but i'm just saying that you footnote one you've probably read it in trinity lutheran just this year that the governor he's a state official right and the court says it's not good enough the court says there's still a case before it the other thing i would say rules in favor of the the church on the free exercise claim but that's quite different from saying it's moot and the other thing i would do though is point to the other piece of evidence that my opponent did not or to when asked this question by this panel about that because it was for he referred only to the statement of the superintendent what he did not refer to was the statement in the deposition of the music director right now we know that both of them said that but why is music director any more binding on the school district superintendent i think when you put them both together and you look at the  everybody why does the school mind that encourage ori judgement then all it's saying is i mean it wasn't even an injunction it was a very careful carefully and sensitively crafted solution to the problem the court assumes the school district is going to comply with the declaration there is the possibility of the backup injunction but that you hold a proceeding to it and because of that i mean again that th  and i'm going to enjoy watching you die you mean if it's there are certainly some strong feelings convey that i agree with that and that material is in the record but you can't draw from that that there is a solid consensus of the public opinion for or against it me that this poll was just some poll done by a newspaper with no scientific validity whatsoever the standing ovation for the nativity at the twenty fifteen cheers that's true but remember that almost drowning out of a holy night the question is what does the community think and i don't believe this court can or should the district or draw any type of empirical conclusion of the community as a whole based simply on what the people in that audience right we we just have to decide the question about whether the superintendent's  position on keeping the status quo as it is is enough for the voluntary says sation doctrine yes and whether that's considered binding enough understood in the district court but not in light of the tallit in the evidence about the the voluntary secession line of cases where something this informal has sufficed because i actually can't there are the cases that are cited in the briefs but that is that's the best that the risk of it ok i would i would observer think when they view this religious performance will they think that this is a school indorsing celebrating religion or will they think that this is a school simply educating students in a secular manner and what you see when you look at the twenty four minute now performance is virtually the same performance that you have seen for half a century but why isn't it different that people aren't reading from the bible which is what makes it sound more like church to me judge regardless of whether someone is reading from the bible at the time i mean a reverent tone of the manner in which this performance takes place it's telling the same story that a faculty member used to read from the does the fact that they've moved that the bible reading means something probably doesn't detract from the religious message being conveyed i don't think so as i say seven of the nine performances after the christmas narrative are exactly the same now as they were in two thousand and fourteen right the context is is it's being presented as a as a dramatic performance in a concert setting not you know they're not in the sanctuary of a church they're in a school auditorium it's modeled after the rockets christmas spectacular in which the first attack and it's all about the you know jingle bells aspect of christmas and the tiffany and i mean that's the context in which this would be conventionally understood taking it outside of the worship or prayer line of cases it's hard for been in schools  it's certainly a performance in the same way that the display invalidated in county of allegheny was a display was was was a piece of art but that isn't the question that arises under the establishment clause i think the question that arises is first what is the effect and second what is the purpose of this performance so i host a school orchestra and chorus at easter time perform boxing matthew passion is that an unqualified violation of the first amendment or must the school censor the text so that the gospels are not read out by the evangelist i  have to admit your honor that i'm not familiar with the piece i retire i think it's a problem i think that there are very few unqualified rules under the first the first and well i mean let me just tell you that during the st matthew passion a character called the evangelist reads the text of the gospel according to st matthew and then there are lots of other religious figures it's one of the most venerated pieces in the history of music and not being familiar with it yes hard for me to understand i have i apologize for my lack of musical knowledge it certainly sounds like a piece that the very  raises concerns and under the establishment clause and again we can go around and around and say it does this violate this jesus christ superstar violate the establishment clause what if they just performed holy night if the question still boils down to is this being performed in a secular manner period of what importance is it to your argument that this is at the high school level as opposed to perhaps a public performance of st matthew's passion by a local community orchestra in the community center of the town i think certainly