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The Freedom From Religion Foundation and the ACLU are heading back to court to stop an Indiana high school from having a mannequin-laden, still-life Nativity scene pop up during the holiday concert.

It’s a long story, but bear with me to get a full sense of what’s going on.

Back in 2015, I posted about Concord High School, where the holiday concert included a full-blown Nativity Play:

This scene belongs in a church play, not a public school concert.
This scene belongs in a church play, not a public school concert.

You could even watch it on YouTube (1:20:09):

YouTube video

FFRF had written a letter to the District back in August of that year warning them against doing it again:

It is illegal for a public school to endorse religion to students by organizing a religious performance, such as acting out the exclusively Christian legend of Jesus’s birth. The performance has a clearly devotional message and thus would be appropriate in a church setting, but not in a public school…

Centering the high school’s holiday concert around the nativity is illegal even if participation in the nativity scene is voluntary…

The simple solution is for Concord Community Schools to devise a winter concert centered around secular values like family, giving, and community, rather than focusing on the religious aspects of one specific holiday.

At a School Board meeting that week, the room was packed with Nativity defenders, one of whom was the District’s Superintendent:

District Superintendent John Trout read his prepared statement.

“For more than 30 years, the Spectacular has been an important part of the Concord High School holiday experience. It will continue to do so,” Trout said, adding that Concord Schools would not engage in a public media fight.

He also noted that participation in the Nativity scene is voluntary and the scene is rehearsed after school, and stated that this scene provides historical context to the holiday season.

A better administrator would have known it’s irrelevant that participation in the Nativity scene was voluntary and that rehearsals took place after school. If it was a part of the show, it was an endorsement by the school, full stop. That’s why it couldn’t remain in there. No other religion received that much air time during the program, and there was no secular purpose for including the birth of Christ in the show. (It’s also irrelevant that the District, in response to FFRF’s initial letter, promised to include a couple of Hanukkah and Kwanzaa songs and eliminated direct Bible readings. That didn’t balance out the Nativity reenactment.)

The ACLU and FFRF called for the courts to put a stop to this since the administrators were too irresponsible to do it themselves, and U.S. District Court Judge Jon DeGuilio issued a preliminary ruling against the District in December of 2015 saying they could not have the Nativity Scene in the upcoming concert.

Because the live nativity celebrates a religious message, which a government entity like Concord cannot endorse, DeGuilio ruled, “the Plaintiffs are likely to succeed on the merits on their claim that the inclusion of the living nativity scene in the show, as currently proposed, violates the Establishment Clause.”

“A live nativity is a shocking violation to encounter in a public school, which has no business directing students to engage in devotional, sectarian performances,” said FFRF Co-President Annie Laurie Gaylor. “This decision is a win for everyone who recognizes that there can be no freedom of religious belief without freedom from religion in government and in our public schools.”

That seemed pretty definitive. No live nativity!

It’s also worth noting that the plaintiffs in the case included a student who would be performing in the show and his father, so this wasn’t just some “outside” groups coming into the community. These were people in the community who asked national groups to help them resolve a problem in their hometown. If push came to shove and there was a lawsuit, the plaintiffs would have legal standing.

So how did all of that finally play out?

The concert took place in mid-December… and the Nativity scene was still there.

Saturday’s performance of the school’s Christmas Spectacular included a different version of the nativity scene where the school used statues instead.

The sold out crowd at Concord High School erupted with applause following the school’s use of statues to keep the nativity scene.

So it wasn’t a “living” Nativity. It was a “still-life” Nativity. It’s like they found a loophole… but to anyone aware of the situation, it was really the same damn thing. A puppet show promoting the birth of Christ would have been equally problematic.

As expected, though, the ignorant locals who felt it was the District’s job to promote Christianity and no other faith were thrilled:

I’d like to say ‘we won.’ There was a lot of happy people in there tonight,” said Doug Johnson, the grandparent of a Concord student.

“It’s very emotional. I was actually tearful when I came out,” said parent Roberta Gooding.

“I felt like it was all done in very good taste and we could honor the birth of Jesus and still other cultures could be, could have their say as well,” said Gooding.

Just to paraphrase that last parent, the concert honored the Christian faith… while paying lip service to a few other groups that she couldn’t even bring herself to name specifically.

The Freedom From Religion Foundation has not yet responded to the school’s use of the nativity scene. But, many parents say they don’t care what the FFRF thinks.

FFRF finally responded to the District’s negligence in February of 2016, filing an amended lawsuit — with two more plaintiffs added to the case. In addition to the father/son duo, the other plaintiffs were both fathers of students who took part in the Christmas Spectacular show.

To blunt the criticism so often leveled at church/state separation groups, FFRF wasn’t doing this for money. They were asking the courts to award the plaintiffs only $1 each in damages (in addition to the usual court costs and lawyers’ fees).

In September of 2016, Judge DeGuilio issued his ruling on the amended complaint… and, for some reason, he said the revised concert that used mannequins in place of students for a Nativity scene was perfectly fine. Because even though it promoted Christianity, it didn’t do it for that long:

Here, in arguing that the 2015 show endorsed religion, the Plaintiffs largely argue that the Court found that the proposed 2015 show endorsed religion, and that the only change to that version was replacing the student actors with mannequins. That is simply not true, though. Not only did the nativity scene in the actual 2015 show not include live actors, it was only on stage for under two minutes, while a single ensemble performed a single song. Those changes fundamentally altered the nativity scene’s role in the show as compared to previous versions.

So if they staged the resurrection of Jesus in a minute, that would be okay, too?! It made no sense. Promotion of Christian mythology has no place in a public school holiday concert, whether it’s with live students or statues, whether it’s twelve minutes or two.

FFRF and the ACLU note that staging a nativity scene, live or otherwise, during a school event has no secular or educational purpose. “The nativity scene and the concert’s heavy focus on the religious aspects of Christmas send an exclusionary message to our clients and others that the school prefers Christians over non-theists and people of other faiths,” noted ACLU Senior Staff Attorney Heather Weaver.

So that’s where we were at entering 2017. The court found the revised Nativity play legal… but the judge hadn’t settled the case involving the old Nativity play.

That ruling came down yesterday, though, and it’s a resounding victory for the side of church/state separation.

“The manner in which the living nativity scene was presented and its context within the show combined to create an impermissible message of [religious] endorsement,” U.S. District Judge Jon DeGuilio ruled. “The school’s present filings offer no argument in defense of the constitutionality of this version of the show.”

Here’s what that means in practice: If the District ever reverts back to those old Nativity plays, with students playing biblical characters, FFRF can sue the District’s ass off and collect all the money.

The judge also ordered that each of the plaintiffs receive $1 in damages for each time they experienced the Nativity play. Because you have to give them something, and this was never about the money.

It’ll take another appeal to the court to recover attorneys’ fees.

FFRF is delighted at the triumph of constitutional principles — and common sense.

“This was a clear-cut case of a school district imposing Christianity on the student body,” says FFRF Co-President Annie Laurie Gaylor. “The court ruled wisely in adhering to the laws of the land. We thank our brave local plaintiffs for fighting to remedy this egregious violation.”

So this is where we were a few weeks ago. When it came to the real-life Nativity scene, the school was blocked from performing it. But the still-life Nativity scene was still okay.

That’s what FFRF and the ACLU are fighting now. Yesterday, they asked the 7th U.S. Circuit Court of Appeals to put a stop to those “static” scenes as well.

“There is no legal precedent that would countenance a public school displaying Christian nativity scenes, particularly on stage while students sing Christmas carols,” says FFRF Co-President Annie Laurie Gaylor. “We’re pleased to have stopped the egregious violation of a live nativity pageant. But our plaintiffs and we all consider it unacceptable to allow this school district, with its long history of promoting Christianity, to continue to display a nativity scene at a school event.”

Gaylor further explains why even the static nativity display is highly problematic.

“Public schools may recognize and celebrate the secular aspects of winter holidays, but they may not endorse or promote religious beliefs,” she adds. “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.”

It’s hard to see why any court would allow a Nativity scene of any kind to be part of a holiday concert when no other religion’s mythology gets the same kind of elevation. It’s not like they’re singing Christmas carols that have become secular traditions. This is promoting Christian mythology, pure and simple. One judge got that wrong, so now it’ll be up to a new slate of three judges.

Let’s hope they put a stop to this madness before every rural high school in America starts including Nativity scenes in their shows, too.

(Large portions of this article were published earlier)

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Hemant Mehta is the founder of, a YouTube creator, podcast co-host, and author of multiple books about atheism. He can be reached at @HemantMehta.