School Choirs Can Perform at Church Nativities... As Long As No One Talks About Religion?

For years, choirs from Wake County Public Schools have performed Christmas songs during the Apex Nativity Celebration, a three-day, community-wide event held at the Church of Jesus Christ of Latter-day Saints. Due to a complaint from a parent to the Freedom From Religion Foundation, that didn’t happen this year.

The Wisconsin-based group sent a letter threatening litigation to the district, claiming the performances would violate students’ constitutional rights since the LDS church has stated in promotional materials that it’s a “celebration of the birth and ministry of our Lord and Savior, Jesus Christ,” and in a video that the event “represents a wonderful opportunity for you to bear testimony of Christ to your friends.”

Afraid of inviting a lawsuit, the school district banned the choirs from performing at this year’s event.


Video courtesy Cedar Behnke

Many commentators have reflexively claimed “War on Christmas!” about this story, but it’s a little more complicated than that.

Wake County Public Schools spokesman Tim Simmons explained to News & Observer columnist Barry Saunders:

[E]verything was Kool & the Gang – the choirs would’ve been able to perform – until a church member made a video explaining “the purpose of the event.” In doing so, Simmons said, the pastor “makes it clear that as part of this great opportunity, you get to provide religious testimony.”

“If I go to a Christmas event and they happen to have a nativity scene but the rest of the event is pretty secular – you know, it’s children singing songs – then you’re not in a position where you’re endorsing a religion,” Simmons said. “When you send a school to an event in which the intent clearly includes something like what was explained in the video, which is, ‘Hey, there’s an opportunity to testify’ – from the lawyer’s perspective, you’re on the wrong side of the line.”

In response to a question from me, Simmons noted that “you could argue that any nativity scene would be an endorsement of a religion, but that’s not how the courts look at it. It has to be more overt than that.”

The celebration is open to the entire community and features nativity displays from all over the world. No proselyting occurs during the event itself (I know because I have attended the event many times and know the people who run it), but obviously the church is hoping some in the community will be open to hearing more of their message.

In the video, the speaker is clearly stating that it’s an opportunity for church members to provide testimony to THEIR FRIENDS, not an opportunity to foist their testimony upon an unsuspecting stranger who’s simply admiring a nativity scene from Australia or Germany or wherever. So if an event is overtly religious because some attendees may be “bearing testimony” to their friends… that’s an interesting standard.

FFRF has targeted this type of celebration before. In 2013, they threatened litigation against two Montana school districts whose students were to perform at the LDS church there, using virtually identical language. It leads one to wonder whether there really was a complaint from a Wake County parent, or whether an intern at FFRF did a little Googling to find another district to harass.

In the case of the Montana district, one of the superintendents pointed out in her reply to FFRF that if the district banned school choirs from performing at the Christmas event, it could be violating the rights of students who wished to participate:

“One could interpret that by denying district students the opportunity to participate because of the Christian theme of the overall event might be in violation of the second half of the establishment clause, ‘prohibiting the free exercise thereof.’ Students may ‘opt out’ of assignments and/or activities that might conflict with their belief system to assure that the district is not placing them in a situation they might find uncomfortable.”

Saunders, the columnist, had a great compromise solution to avoid upsetting the “POOP (Professional Opponents of Proselyting)”: have the children stand outside the building singing, “We wish you a merry whatever it is y’all are celebrating in there, and a Happy New Year!”