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Public schools may celebrate Earth Day, as the 2nd U.S. Circuit Court of Appeals has ruled that the event does not establish a pagan or “New Age” religion in violation of the Establishment Clause of the First Amendment. A unanimous 2nd Circuit panel, in an opinion written by Judge Amalya Kearse, reversed Southern District Judge Charles L. Brieant, who found that Fox Lane High School’s celebration of the environmental holiday was a violation of the rights of students who complained it foisted a religious devotion upon them. While Earth Day conveys a message of “respect for the earth,” the 2nd Circuit said, “[r]espect … does not inevitably suggest religion.” Earth Day this year is April 22. The panel compared the Westchester County school’s celebration showing respect for the earth and nature to rituals codified by Congress for showing respect to the United States flag. “An objective observer would not view these detailed prescriptions for honoring the American flag … as an indication that Congress … has established flag worship as a religion,” Judge Kearse wrote. “We conclude that an objective observer similarly would not view the School District’s Earth Day ceremonies as endorsing Gaia or Earth worship as a religion.” In Altman v. Bedford Central School District, 99-7969(L), 99-9001, plaintiffs challenged a number of practices at two schools in the Bedford Central School District in Westchester County, complaining that they violated the First Amendment ban on government establishment of religion. Most of the claims were deemed moot by the 2nd Circuit in its decision Wednesday, since several of the plaintiffs are now too old or have moved away from their schools. But the Earth Day celebration at Fox Lane High School, struck down by Judge Brieant, remained a live issue. Earth Day, plaintiffs complained, established the Earth-based religion of Gaia, a recognized faith. Specifically, they pointed to school-organized ceremonies they said had the attributes of religious worship, allegedly including the use of a symbolic structure not unlike an altar and a chorus of ceremonial drums. Plaintiffs also claimed that the school district was impeding their free exercise of religion, alleging that faculty members made statements about overpopulation, which some students took as an endorsement of contraception, contrary to Catholic principles. Brieant noted that the celebration had “started out innocently enough” under the New York State Education Law’s mandate that conservation be promoted once a year in public schools. But in striking down Earth Day, he said that an objective observer would view the Fox Lane High School events as an endorsement of the Gaia faith, in that discourse around the celebration was “addressed to the Earth as if it were the Creator, or divine.” Kearse and her 2nd Circuit colleagues disagreed with Brieant’s view of the facts, crediting testimony by student leaders that Earth Day was meant to promote “understand[ing of] environmental problems and to foster respect for the Earth,” with no attachment of religious significance. The “symbolic structures” referred to by the plaintiffs were not altars but renderings of American Indian dwellings, and there was no specific explanation as to how drumming had religious significance. The appeals court also rejected an argument that a reference to “Mother Earth” in a student newspaper article turned the planet into a divine being. “[W]e see no greater religious significance in the … colorful reference to ‘Mother Earth’ in this context than if the article had referred to ‘Father Time,’ ” Judge Kearse wrote. NO VIOLATION Finally, since there was no finding of fact that Fox Lane High School students were required to participate in the ceremony, there was no violation of the First Amendment’s guarantee of the free exercise of religion. Without the element of compulsory attendance, the ceremony cannot be said to have a “religion-burdening effect,” the appeals court panel said. So a remark on overpopulation that may be interpreted as an endorsement of contraception can be offensive to some student’s beliefs, but that does not suffice to prove a free exercise violation, the panel reasoned. Joining Kearse on the panel were Chief Judge John M. Walker Jr. and Judge Rosemary S. Pooler. The plaintiffs challenging Earth Day celebrations were represented by Christopher A. Ferrara of Ramsey, N.J. The Bedford Central School District was represented by Warren H. Richmond of the Ingerman Smith law firm in Northport. The case drew several amici curiae who filed briefs in support of the school district. Elliott M. Mincberg of the People for the American Way Foundation in Washington, D.C., represented the Bedford Parents Association. Jay Worona, counsel to the New York State School Boards Association, and James R. Sandner, general counsel to the New York State United Teachers, also participated. Marc D. Stern, co-director of the American Jewish Congress, and Arthur N. Eisenberg representing the New York Civil Liberties Union filed briefs “principally in support” of the Bedford Central School District.

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