In its recent decision in Nurre v. Whitehead, the 9th Circuit Court of Appeals held that an instrumental performance of Biebl’s “Ave Maria” was a violation of the Establishment Clause of the First Amendment.
This case is, as the Court notes, a “labyrinth” of legal doctrines through which one must tread lightly. This decision, however, is worthy of stricter scrutiny by constitutional scholars and religious observers. The fact that the Court has banned playing an instrumental version of a religious song at a public school function calls into question a number of other things. First, that a melody can implicate the establishment of religion is odd. Many hymns begin as secular songs in various contexts and are adopted by the Church to evangelize the culture or simply because it is a good tune. (“Oh God Beyond All Praising” comes to mind, originally a portion of Holst’s Jupiter from The Planets.) Second, what happens to music appreciation courses and other curricula that have to deal with renaissance or baroque music that was often written either for the Church or under the patronage of the Church? Are we to ban centuries of classical music because they had a religious origin or have some religious reference?
These issues are important because if this decision is adopted widely across the country, the mere reference to religion of an instrumental tune may allow people to remove religion from the public square based on a very low threshold test.
(Once my revised blog is up and running, I will be discussing this case more fully as I am writing a paper on it to submit in the Spring.)
A lovely recording of Biebl’s “Ave Maria” is here: