FFRF seeks summary judgment in Indiana nativity lawsuit

In a motion filed today, the Freedom From Religion Foundation, the American Civil Liberties Union, and the ACLU of Indiana are seeking summary judgment in a lawsuit challenging an annual nativity performance at an Indiana public school. 

Each December for nearly half a century, the Performing Arts Department of Concord High School in Elkhart, Ind., has planned, produced, and staged several performances of a large event called the "Christmas Spectacular." One element has remained largely unchanged: School officials ensure that each show closes with a 20-minute depiction by students of the story of the birth of Jesus Christ. Through 2014, during this segment, students at the high school portrayed "the Virgin Mary, Joseph, the Three Wise Men, shepherds, and angels, while staff read passages from the New Testament," notes the original complaint. Read the lawsuit here.

In December, a federal judge issued an injunction against the live nativity, ruling that the version performed for nearly 50 years was an unconstitutional religious endorsement. The plaintiffs' motion for summary judgment challenges the nativity enactment as it was modified during the 2015 "Christmas Spectacular," where the school substituted mannequins in place of live student performers. FFRF and the ACLU note that this modified nativity scene is no more legal or appropriate than the original show. "There is simply no support for the proposition that the constitutionality of a religious display or performance turns on a governmental entity's decision to employ live bodies," note the plaintiffs in their motion. Both versions exist solely to promote Christianity during a school-sponsored performance in violation of the U.S. Constitution.

While public schools may recognize and celebrate the secular aspects of winter holidays, they may not endorse or promote religious beliefs. Nor may they use school functions to coercively subject students to religious messages and proselytizing. But that is precisely what the Concord Community Schools system has done. The brave plaintiffs—a student who participates in the Performing Arts Department, three parents who have attended and will attend the event in order to support their performing children, and FFRF, a nonprofit membership organization devoted to maintaining the separation of church and state—are entitled to a permanent injunction barring all versions of the nativity enactment.

While Concord High School changed its performance in 2015, it did not cure the constitutional violations.

"Concord's argument that it has alleviated any appearance of religious endorsement through its passing references to Hanukkah and Kwanzaa is belied by the facts," notes FFRF Staff Attorney Sam Grover. "In reference to Hanukkah, the school corporation gave a 35-second introduction about the holiday and then had its chamber strings perform an entirely instrumental version of 'Ani Ma'amin', which is a Jewish piece, but not one that pertains to Hanukkah. For Kwanzaa, the introduction was 38 seconds and the song that followed was in a foreign language. By contrast, the portion of the show dedicated to Christmas lasted over 20 minutes and included nine devotional pieces, seven with English lyrics."

FFRF wants people to realize the problems caused by the introduction of religion into public schools.

"Generations in Elkhart have been misled by their school system to believe that it's OK for public schools to promote Christianity," says FFRF Co-President Annie Laurie Gaylor. "The death threats against our plaintiffs and attorney and the community hostility are a direct result."

The Freedom From Religion Foundation is dedicated to the separation of state and church, with 23,700 members nationwide, including more than 300 in Indiana.

FFRF has brought the suit in conjunction with the ACLU of Indiana and the national ACLU. Attorneys on the case include Sam Grover and Ryan Jayne of FFRF, Gavin Rose of the ACLU of Indiana, and Daniel Mach and Heather L. Weaver of the ACLU. FFRF v. Concord Community Schools, Case No. 3:15-cv-00463, is in the U.S. District Court for the Northern District of Indiana, South Bend Division.

The Freedom From Religion Foundation, based in Madison, Wis., a 501(c)(3) nonprofit educational charity, is the nation's largest association of freethinkers (atheists, agnostics), and has been working since 1978 to keep religion and government separate.

FFRF is a non-profit, educational organization. All dues and donations are deductible for income-tax purposes.

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