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Constitutional Miracles

The seasons of Advent and Christmas bring more classical music to American ears than any other time of year. Hark! The Herald Angels Sing is sung to a tune by Mendelssohn. The season isn’t complete without a performance of Tchaikovsky’s Nutcracker or Handel’s Messiah. And of course, Josh Groban’s recording of the Schubert Ave Maria is piped into virtually every shopping mall.

Today’s constitutional miracle tale centers on a different Ave Maria, one initially written for a group of Bavarian firemen. The composer was an obscure twentieth-century German named Franz Biebl, who sat out most of World War II as a prisoner-of-war at Fort Custer in Battle Creek, Michigan. Although Biebl’s Ave Maria is a breathtakingly beautiful work, you are likely to be familiar with it only if you are a devoted fan of choral music or happen to have sung it with one of the many collegiate glee clubs that have made it something of a theme song over the years, including those at Notre Dame, Cornell, Harvard, Virginia, and Yale.

Called by one conductor (for better or worse), the choral equivalent of Pachelbel’s ubiquitous Canon in D, Biebl’s Ave Maria has become a much-loved staple of the classical choral repertoire, especially during the Christmas holiday season. This memorable motet sets the Latin texts of the Ave Maria prayer and the Angelus in a plainchant call (“The Angel of the Lord declared unto Mary”) and polyphonic response (“Hail Mary, full of grace”). The standard arrangement for a seven-part double chorus is often performed antiphonally—and to considerable dramatic effect—from different parts of the auditorium.

Each Christmas season, the famous professional chorus Chanticleer propels the seven-minute composition to the upper reaches of the classical charts. It’s one of those holiday pieces that, when you hear it, you probably don’t recognize it, but are likely to say to yourself, “That’s really beautiful.” As Matthew Oltman, a Chanticleer alumnus and veteran of hundreds of performances, wrote in his doctoral dissertation on Biebl’s piece, “In all my years living with the Ave Maria, I never cease to revel in the sheer sound of the simple, soaring melodic lines and the sumptuous, comforting harmonies.”

Herr Biebl’s Ave Maria, which Dr. Oltman affectionately calls an “iconic one-hit wonder,” has become our inspirational story thanks to the Ninth Circuit’s 2009 decision under the First Amendment’s Establishment Clause in Nurre v. Whitehead. The case involved a graduation ceremony at a public high school in the State of Washington, and the decision from this traditionally very liberal court rested on what can only be seen as a series of miracles.

The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental arrangement of Biebl’s piece because they thought it would “showcase their talent.” It was a smart choice. Biebl’s seven interwoven musical voices, all coalescing in sonorous, resonant chords, give it the virtue of being easier to perform than it sounds, unlike many other wind ensemble favorites, such as Aaron Copland’s Appalachian Spring, which is complicated even when the melody is called “Simple Gifts.”

The court’s decision required not less than three miracles, each involving a degree of faith in the education of America’s youth that, as the King James Version of the Bible might say, “passeth all understanding.”

The Ave Maria choice was vetoed by the school administration on the grounds that “the title and meaning … had religious connotations and would be easily identified as such by attendees.” Undeterred, the students put their civic education to work and took their case to federal court, where the Ninth Circuit ultimately sided with the administrators. The three-judge panel said that the school’s action was an appropriate way to avoid a problem under the First Amendment’s Establishment Clause: “Congress shall make no law respecting an establishment of religion.”

Of course, a high school band isn’t “Congress,” a musical piece played at graduation isn’t a “law,” and printing the words “Ave Maria” in a concert program hardly creates a national church. As Judge Easterbrook said in another public school case, “Performing a work of art,” such as Handel’s Messiah or Bach’s B-Minor Mass, “does not establish that work” as the “state song” or as a “state religion. “But these constitutional questions are less important during this season of holy days than the deeper implications of the case.

One way to look at it, as Jay Nordlinger thoughtfully wrote in National Review at the time, is that “American life has always been soaked in religion, from the Pilgrims to Abraham Lincoln to Martin Luther King and beyond. If American life, including graduation ceremonies, is purged of religion, American life is something new and twisted.” But I think there is a much more upbeat interpretation for a season musically immortalized as the “most wonderful time of the year.”

As I see it, the court’s decision—that the school properly excluded the Biebl on Establishment Clause grounds— required not less than three miracles, each involving a degree of faith in the education of America’s youth that, as the King James Version of the Bible might say, “passeth all understanding.”

The First Miracle: That anyone was listening. As a former high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music. The chance that any of them would think, “Wow, the band sounds terrific! I’ll check the program to see what that piece is called” rounds to zero. But, in this season of miracles, let’s say they did, and they learned that it was named Ave Maria.

The Second Miracle: That the seniors had any idea what “Ave Maria” meant. I would like to share the judges’ faith that the seniors were well-versed in Latin. Yet, even if they were, the effect of the band’s rendition of Biebl’s composition would more likely be something like this:

Football Captain: Are you waving at the band?

Head Cheerleader: Yes, they are playing that for me. It’s called, “Hey, Mary.” Didn’t you pay attention in AP Latin?

Football Captain: You’re wrong. The Romans didn’t say “Hey,” they said, “Hail.” They are playing this song in honor of my “Hail Mary” touchdown pass in the championship.

The Third Miracle: That there could possibly be a “primary effect” of advancing religion under the court’s use of the then-popular Lemon Test to determine Establishment Clause violations. That means that the non-Latin speaking students in the audience had to understand the title’s meaning and religious significance.

Yet, if they checked their ever-present phones, Google would tell them that there is a flower, an academy, a university, and an optician all named Ave Maria.

There is even an Ave Maria cigar to remind us that sometimes a motet is just a motet.

Then, without any clue other than those two Latin words, the students would need to have a sufficiently religious experience that the band’s performance would have a primary effect of advancing religion. How likely is that? If you think about it, we don’t even see Christmas shoppers falling to their knees in prayer when they hear O Holy Night despite the fact that it tells them to do exactly that—in English, no less.

Justice Alito called this decision “troubling” when he dissented from the Supreme Court’s decision not to hear the case, and it would likely go the other way under the current Supreme Court’s kinder, gentler approach to religion in the public square. But I prefer to see it as an inspiring story of faith in our public schools, where classically educated seniors listen with rapt attention as the wind ensemble plays classical music, and find their religious beliefs profoundly deepened by the simple trigger words, “Ave Maria.”

On that inspirational note, if you are seeking to brighten your holiday season, look no further than Chanticleer’s recording of Biebl’s Ave Maria. We have it on good authority that it will be a religious experience.