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John Whitehead's Commentary

The Right Not To Be Offended: The Supreme Court and Religion

John Whitehead
"When a public school purports to allow students to express themselves, it must respect the students' free speech rights. School administrators may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings."--Supreme Court Justice Samuel Alito, dissenting from the Court's refusal to hear Nurre v. Whitehead

The First Amendment right to free speech is on life support. And with its recent refusal to review the case of Nurre v. Whitehead, the Supreme Court may have pulled the plug.

Traditionally, the senior members of the woodwind ensemble, the top performing instrumental group at Henry M. Jackson High School in Snohomish County, Wash., select a piece each year to perform during graduation ceremonies. Having performed Franz Biebl's "Ave Maria" at a public concert in 2004, the seniors in the wind ensemble unanimously chose to perform it again at their graduation ceremony on June 17, 2006, because they felt its aesthetic beauty and peacefulness would be appropriate for the tone of the ceremony.

The student musicians proposed to perform Biebl's piece instrumentally: no lyrics or words would be sung or said, nor did the senior members intend that any lyrics would be printed in ceremony programs or otherwise distributed to members of the audience. However, despite the absence of lyrics, the school superintendent, Carol Whitehead, refused to allow the ensemble to perform "Ave Maria" at their graduation ceremony because she believed the piece to be religious in nature.

Ironically, the superintendent reportedly didn't even know that the words "Ave Maria" are Latin for "Hail Mary." Nevertheless, determined to avoid offense, despite the fact that this Biebl version of "Ave Maria" is not one that most people would even recognize, the superintendent banned it.

Believing that school authorities had violated her right of free speech, Kathryn Nurre, a student member of the ensemble, turned to The Rutherford Institute, which filed a First Amendment law suit against the school in federal district court in June 2006. A year later, a federal district court ruled that the school's actions were "reasonable" in trying to avoid offending anyone.

In a 2-1 ruling that was handed down in September 2009, the Ninth Circuit Court of Appeals concurred. According to the court, school authorities can deny students' rights to free speech just to keep some of those attending graduation from being offended.

However, in a dissent that is notable for its lucidity, Judge Milan D. Smith insisted that Nurre's right to free speech had been unreasonably violated. "[I]n prohibiting Nurre and her classmates from playing their selected piece of music, the School District misjudged the Establishment Clause's requirements and, in so doing, violated Nurre's First Amendment rights," observed Smith. He continued:

I am concerned that, if the majority's reasoning on this issue becomes widely adopted, the practical effect will be for public school administrators to chill--or even kill--musical and artistic presentations by their students in school- sponsored limited public fora where those presentations contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person's views may be. The First Amendment neither requires nor condones such a result. The taking of such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage.

In an attempt to avoid offending anyone, America's public schools have increasingly adopted a zero tolerance attitude towards religious expression. The courts have not helped, allowing schools the discretion to let an offended minority control a cowed majority. Such politically correct thinking has resulted in a host of inane actions, from the Easter Bunny being renamed "Peter Rabbit" to Christmas Concerts being dubbed "Winter" Concerts and some schools even outlaw the colors red and green, saying they're Christmas colors. And now, simply because someone is offended by the title, students cannot play music which has no words and is performed with no religious intent.

What school officials and the courts fail to understand is that by sanitizing the schools of anything remotely related to religion, they are not only silencing an entire segment of the population. Instead, they are also contributing to a cultural wasteland bereft of a rich heritage of Western art, music and literature--all of which, at one time or another, has been greatly influenced by religion.

Religion is such an innate part of American culture that it would be impossible to create a strictly secular course of study for students. To put this in perspective, consider the following.

If someone complains about Michelangelo's art because it was so often themed on Christianity, does this mean that we are supposed to have art history books without the Sistine Chapel? What about other masterpieces such as Da Vinci's "Last Supper"? For that matter, what about great writers such as Charles Dickens, Alexander Dumas, or Edgar Allen Poe?

Some of Western civilization's greatest music was inspired by religion or created for a religious purpose, composed by such maestros as J.S. Bach, Wolfgang Mozart and Joseph Haydn. Even contemporary artists could find their music banned in schools under such a rubric. For example, the Beatles are visited by Mother Mary in "Let it Be"; Led Zeppelin writes of a "Stairway to Heaven"; and even Jon Bon Jovi sings about "Livin' on a Prayer." Such a course of action would reduce American culture and arts education to a sterile wasteland.

Just as with religion, art has always been a matter of personal experience. Each person brings their own experiences and interpretations to art, rendering it nearly impossible to establish a litmus test for what constitutes "religious art" as opposed to secular art.

Anyone who has ever appreciated a book, painting, symphony, or even newspaper article, movie, or television show should be repulsed at the idea of government officials dictating what art is--and, more importantly, what it is not. Anyone who has ever appreciated even a comic book should cringe at the thought of letting the government control it.

This brings us back to the Supreme Court's refusal to review the ruling in Nurre. We are witnessing the emergence of an unstated yet court-sanctioned right, one that makes no appearance in the Constitution and yet seems to trump the First Amendment at every turn: the right to not be offended. Yet there is no way to completely avoid giving offense. At some time or other, someone is going to take offense at something someone else says or does. It's inevitable.

Each time we allow political correctness to triumph over our constitutional freedoms and basic common sense, we are complicit in undermining the freedoms on which this nation was built. And in a case such as that of Nurre v. Whitehead, we will destroy our culture as well.


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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