Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009)

Music students graduating from a Washington state high school had played musical instruments during graduation exercises of seniors for several years. In 2005 the school received complaints (the court does not say how many) that one of the songs contained religious connotations. In 2006 the graduating seniors in the Music Department selected an instrumental version of “Ave Maria.” The students who wanted to play “Ave Maria” thought the song best displayed their musical ability and was a “pretty piece.” According to the principal of the school, she refused to approve the music on grounds of a potential violation of the Establishment Clause of the First Amendment. She also worried about complaints from parents. One of the students, Kathryn Nurre, sued the principal and the school district for violation of free speech and hostility to religion under the Establishment Clause. The Ninth Circuit upheld the right of the principal, who held advanced degrees in education, to withhold performance of “Ave Maria” despite her previous unawareness of the title or the music. The two judge majority panel produced the usual cases on the Establishment Clause and ultimately denied the students’ claims. Being “offended” is now sufficient in Ninth Circuit case law to establish “standing.” The ultimate resolution of the Ninth Circuit decision confirmed the right of the principal to deny the students playing an instrumental piece of medieval music without lyrics during a graduation ceremony. As noted in the dissent, the principal’s concern with violating the Establishment Clause is sufficient justification to invoke it. So, worrying about a First Amendment violation is sufficient to confirm the rationale expressed by the principal. The Supreme Court in general and the Ninth Circuit in particular have lost their moorings in an attempt to interpret the Establishment Clause. The First Amendment was written in the shadow of English history to reject the “state church” of Henry VIII and Elizabeth. These two monarchs, in repudiating the Catholic religion during their reigns, tormented, terrorized and executed anyone who refused to subscribe to their new religion. Thousands fled England to escape the persecution of King and Queen. The core of the Establishment Clause is just that: state dominance of religion and coercive power to enforce its will. When Congress initially adopted the Bill of Rights, none applied to the individual states, which in some states had an “established church.” Only “incorporating” the First Amendment into the Fourteenth Amendment enabled the Supreme Court to impose its interpretation on individual states. Now, the Ten Commandments, a crhe, a county seal, crosses in a desert, all violate the Establishment Clause in the interest of not endorsing a “state religion.” The courts have never applied the rationale that the Establishment Clause forbids religious “coercion”, i.e.,compelling someone to subscribe to a religion and punish their refusal to conform. Refusing to allow students to play an instrumental version of “Ave Maria,” without lyrics, and the song undoubtedly foreign to the vast number of students at the high school-including the principal-defies comprehension.
The Supreme Court denied Cert. in 2010