Devotional Nature of Activities - Sacred Music Sacred Dance Program

There can be no question that the Sacred Music Sacred Dance program (formally titled, "The Mystical Arts of Tibet: Sacred Music and Sacred Dance for World Healing") performed by the monks in Moab and Salt Lake City was devotional in nature. The programs were performed by Buddhist monks wearing religious vestments. The chants and dance occurred before an altar, a picture of the Dalai Lama and a mural of a monastery. The music and dance were both openly declared to be "sacred" and the oral and written introductory comments explained the religious meaning associated with each sacred chant and dance to the audience. The tour's background information states that the tour is being led by "Za Choeje Rinpoche, one of the monastery's foremost religious teachers, a highly regarded specialist in the tradition of the mystical Tantric arts. According to Funk & Wagnalls New Encyclopedia, Tantraism is "a form of Buddhism which developed by the 7th century A.D. through the blend of Mahayana Buddhism with popular folk belief and magic in northern India. ... Tantraism differs from Mahayana in its strong emphasis on sacramental action." The program was exclusively devoted to Buddhist religious devotional music and dance.

Devotional Nature of Activities - Mandala

Neither can there be any question that the ceremonial constructions of mandalas were devotional. Those present at ceremonies were advised that the mandala circle form was the most sacred form of art in ancient culture and that the mandala would be of the male or female "deity aspect." The opening ceremony consisted of robed monks engaging in a half-hour of prayer chants and music intended to consecrate the site and invoke the "good forces." Incense, beads, recordings of sacred music and writings of the Dalai Lama were offered for sale.

Funk and Wagnalls New Encyclopedia further states of Tantraism, "Its initiation ceremonies involve entry into a mandala, a mystic circle or symbolic map of the spiritual universe. Also important in Tantraism is the use of mudras, or ritual gestures, and mantras, or sacred syllables, which are repeatedly chanted and used as a focus of meditation." This same source states regarding Lamaism: "Lamaic worship consists mainly in reciting prayers and sacred texts and chanting hymns to the accompaniment of horns, trumpets, and drums. ... Much of the ritual of Lamaism is based on the esoteric mysticism of Tantra, devotions that involve both yoga and mantra, or a mystical formula, and ancient shamanistic practices." The opening ceremony was completely consistent with this description of Lamaic worship.

Devotional Activities - Prayer for Peace Day at Moab Park

The monks' background information provided to the Salt Lake City School District stresses the anthropological coincidence between Tibetan and Native American sacred performing arts. It is stated therein that Tantric Buddhist traditions such as the "eye of the god" are also used by native peoples of North America, "a factor that most anthropologists feel support the theory that our North American natives migrated to this continent from Central Asia ... The minimalism of the Tibetan sacred performing arts, combined with this similarity to North American indigenous traditions, makes their extraordinary material very accessible indeed to North American audiences." The Prayer for Peace Day event, as acknowledged by its name, was most assuredly a religious event for both the monks and the American Indians who performed their ceremonial dances.

Establishment Clause Violations Arising From Presentation of Sacred Music Sacred Dance Program (Summary)

West High School Presentation

The Sacred Music Sacred Dance program was presented at West High School on a Wednesday evening after school was dismissed for the day, with the auditorium rented by the monks' sponsors. This rental does not appear to have interfered with any school function or purpose. [Section 58A-3-413(2), Utah Code Annotated] Therefore, the presentation of Sacred Music Sacred Dance at West High School, by itself, does not raise an establishment issue. However, the monks presence and distribution of advertisements for the program in the West High School science multi-purpose room during school hours did improperly involve the school in sponsoring this religious event.

Grand County School Presentations

The Sacred Music Sacred Dance program was presented in four assemblies to entire student bodies and faculties of four Grand County public schools during school hours, excepting only students whose parents had elected to not have them attend. Such wholesale submission of an entire school district to devotional rituals of one religion violated constitutional and statutory prohibitions of entanglement of religion and government. Giving parents advance notice of a school district's intent to violate the law and the option to excuse their children from participation could not excuse this constitutional violation.

Further the notices included in the September, 1998 newsletter and information letter to parents were clearly misleading in characterizing the performance simply as "traditional dance and music" and as "a strictly cultural experience for students." The district's reply letter of October 6, 1998, confirmed its long standing awareness that "culture and religion [of native peoples] are closely aligned," thereby conceding that such performances are neither merely "traditional" nor "strictly cultural." The monks' promotional literature made clear that activities were ceremonial, sacred, and devotional in nature. The district recognized the need to advise parents, but avoided accurately doing so by misrepresenting the program as "strictly cultural." Therefore, parents were not adequately advised of the religious nature of the program to allow them to make an informed choice regarding their children's participation in a program which should not have been sponsored by the district in the first place.

Absent the district's wholesale sponsorship of the monks, the evening performances at Grand High School would not have presented establishment clause issues.

Establishment Clause Violations Arising from Mandala Construction and Ceremonies (Summary)

West High School Mandala

Although Principal Gray stated that the mandala construction would be closely monitored to assure that students were not drawn in, there was scant evidence that such monitoring would be effective. Though the science multi-purpose room is not in one of the busier halls of the school, students clearly do use the hall during the school day. Students entering the school were advised by posted advertisements that the mandala construction was open to the public and that the public was invited to visit the science multi-purpose room. One of the monks minding the table with religious music, texts and other items for sale stated after the opening ceremony that the monks should plan to sell their items at a lecture to be held that evening at the Unitarian Church. He said this was so because "students don't have any money;" such statement indicating that he anticipated that students would be coming into the room, but that they wouldn't be a source of much revenue.

Had the room been rented for a private closed meeting of Buddhists, Baptists or atheists, the issue might be academic. However, the room was rented for devotional ceremonies and multi-day display which were open to the general public, and which openly invited the general public, including students, to visit. Such circumstances resulted in a violation of the prohibition of separation of religion and government.

Classes of sixth grade students from Eastwood Elementary visited the ceremony as part of their study of world history and culture. However, it appears that student's parents were not advised that their children would be visiting a religious ceremony or of the option to excuse their children on religious grounds. The general permission form signed by sixth grader's parents at the start of the school year apparently did not specifically advise parents of religious program(s) to be included in the world history and culture curriculum or whether a balanced presentation of religious programs had been included in the curriculum. Absent notification, parents would have been unable to make the determination anticipated by Section 53A-13-101.2, Utah Code Annotated as to whether their children's participation would deny a religious belief or right of conscience.

Moab Arts and Recreation Center Mandala

The Moab Arts and Recreation Center (MOAC) served as a public venue for the Buddhists to construct their mandala, with such construction and opening and closing devotional ceremonies open to the public. As the construction of the mandala was a devotional practice, to avoid discrimination MOAC should have an across the board policy which will allow adherents to other religions/nonreligions to conduct religious/nonreligious ceremonies in the MOAC as they create works of art. Similarly members of other religions/nonreligions who exhibit their religious/nonreligious art for free must also be entitled to use the MOAC free of charge. It does not appear that such policy has been formally adopted or applied across the board.

Moab school classes were taken to visit the mandala construction and related ceremonies. However, the district has not claimed that the visits were part of related balanced curricula. The only explanation has been that schools have entertained American Indian programs which have involved intertwined religion and culture. As all religions have related cultural aspects, school sponsorship of religious ceremonies, whether Buddhist, American Indian, Catholic, Jewish or Wiccan violates the Establishment Clause. Also, as noted the district's notice to parents failed to advise them of the devotional nature of the Mandala and related ceremonies.

Establishment Clause Violations Arising from Moab Park Activities (Summary)

City Administrator Donna Metzler stated to the Salt Lake Tribune that the usual $25 park fee had been waived for the Prayer and Peace Day celebration at which the monks were honored with religious dances by American Indians. Ms. Metzler told the Salt Lake Tribune, "We don't get many requests for fee waivers at the park. But when it's from a non-profit group, the council will consider it. This particular waiver had nothing to do with religion." The Tribune further reported that "Metzler said the Prayer for Peace Day in the park was a multicultural event and included American Indian dancers." However, Ms. Metzler's letter to the Institute stated that, rather than being waived, the park fee had been refunded by the City Council after it had been paid by Rene LaFaurie. Ms. Metzler's letter stated, "The City Council occasionally refunds fees to requesting groups that use City facilities."

Ms. Metzler's statements and her letter indicate that the park fee was waived or refunded because, as opposed to a religious organization, a non-profit group/multicultural event was involved. However, a policy which favored non-profit groups as long as they were not religious would on its face violate Society of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993) which requires that religious groups be given the same privileges regarding city-owned facilities as any other group. It would seem to have been more forthcoming to admit that the city had waived the park fee to accommodate the Buddhists and American Indians as religious groups conducting a prayer for peace day. As shown above, the monks' background information provided to the Salt Lake City School district stresses the anthropological coincidence between Tibetan and Native American sacred performing arts. The Prayer for Peace Day event was most assuredly religious for both the American Indians and the monks.

Further, Transcendence, the monks' Moab sponsor, has apparently never been registered with the State of Utah as a non-profit organization of any kind. Therefore, it appears that the city has a very flexible standard to qualify as a "non-profit group" with ad hoc associations qualifying as well as those duly qualified to act in the State of Utah. Unless park fees are waived for every group, religious or non-religious, formal or ad hoc, claiming to be non-profit, there is most probably a violation of Whitehead standards. Metzler's statement that the Moab City Council "occasionally" considers requests for a waiver/refund of fees indicates a lack of uniform policy and that Transcendence and the monks were given a privilege not uniformly extended to all other groups.

Violations of Establishment Clause/Free Exercise Clause Principles

Grand County School District Violations of Requirements of Bauchman v. West High School

Principle

"Courts have long recognized the historical, social and cultural significance of religion in our lives and in the world generally, ... Accordingly, there is a legitimate time, manner and place for the discussion of religion in the public classroom." Bauchman v. West High School, 132 F.3d 542, 554 (10th Cir. 1997).

Violation of Principle

Specific approved balanced classes studying world religions or native art or dancing, were they to exist, may have reasonably have included a visit to the evening Sacred Music Sacred Dance performances or a visit to the mandala if such were related to the curricula. [Cf. Section 53A-13-101.1(1), Utah Code Annotated.] However, Grand County's indiscriminate closing of schools to have entire student bodies and faculties attend Tantric Buddhist ceremonies was not related to any specific curriculum.

Principle

"Applying Lemon [v. Kurtzman], government action does not violate the Establishment Clause so long as it (1) has a secular purpose [Cf. Section 53A-13-101.1(1) and (2) Utah Code Annotated], (2) does not have the principal or primary effect of advancing or inhibiting religion {Cf. Section 53A-13-101.1(2), Utah Code Annotated], and (3) does not foster an excessive entanglement [Cf. Section 53A-13-101.1(3) and (4), Utah Code Annotated]." Bauchman at 551.

Violation of Principle

If the Grand County School District failed to meet any one of these three tests in hosting the monks, it violated the Establishment Clause.

Principle

"Applying Justice O'Connor's refined analysis, the government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that 'religion or a particular religion' is favored or preferred." Bauchman at 552 "To sustain her Establishment Clause claim [under the purpose test], Ms. Bauchman therefore must allege facts indicating the defendants have no 'clearly secular purpose' for selecting songs with religious content and requiring the Choir to perform in religious venues. ... In the alternative Ms. Bauchman can allege facts showing that in spite of the existence of a legitimate secular purpose(s), the defendants' 'actual' purpose is to endorse or disapprove of religion. ..." Bauchman at 554-555.

Violation of Principle

The wholesale shutting down of Grand County schools for Tantric Buddhist devotional ceremonies was unrelated to specific curricula. Being unrelated to any specific classroom curricula, conduct was necessarily inconsistent with any secular objective. The district's letter contended that sponsoring Tantric Buddhist rituals was acceptable because, "like Native American Indian dances and chants which are presented as cultural experiences in school districts throughout the state, culture and religion are closely aligned." However, this explanation fails to provide the curricula-context nexus required by Bauchman. There is no legal doctrine that, simply because a religious activity has a strong cultural component, it may be presented in the public schools. As all religion is cultural in nature, the fact that culture may be entwined with religion does not relieve public officials from acknowledging the religious nature and context of the activity and assuring that it has a secular purpose related to an established curriculum. Section 53A-13-101.1(3), Utah Code Annotated, provides, "Public schools may not sponsor prayer or religious devotionals." Before Buddhist, American Indian, or other rituals, chants and dances may be performed for students, the performance must be related to an established balanced curriculum or activity which meets the requirements of state and constitutional law. The wholesale closing of the Grand County Schools for Tantric Buddhist devotionals certainly had the effect of conveying a message that Tantric Buddhism is favored or preferred and thereby violated the Establishment Clause. Further investigation would be appropriate to determine whether the action was for the purpose of providing the message that Tantric Buddhism was favored or preferred. There are troubling indications that school officials received promotional information from devoted monks which clearly described their music, dance and mandala as sacred and devotional, and yet undertook to misrepresent these ceremonies as "traditional" and "strictly cultural" to parents despite their obvious religious nature.

Principle

"To state a claim under [the effect] component of the endorsement test, Ms. Bauchman must allege facts indicating the Choir curriculum or Choir activities have a principle or primary effect of advancing or endorsing religion. ... This is an objective inquiry, not an inquiry into whether particular individuals might be offended by the content or location of the Choir's performance, or consider such performances to endorse religion. ... We believe a reasonable observer aware of the purpose, context and history of public education in Salt Lake City ... and the traditional and ubiquitous presence of religious themes in vocal music, would perceive the following ...: the Choir is comprised of a diverse group of students; many of the Choir's songs have religious content--content predominantly representative of Judeo-Christian beliefs; ... in contrast to a church choir, this Choir performs a variety of secular songs ... [These viewed in context do not indicate] the advancement or endorsement of religion." Bachman at 555.

Violation of Principle

In Bauchman West High School's challenged conduct was a choir class which included the singing of a balance of religious and secular songs in various religious and secular venues according to established community tradition. In contrast, Grand County School District officials canceled all classes and gathered entire student bodies in front of a religious ensemble made up exclusively of representatives of one religion (Tibetan Tantric Buddhism) who performed exclusively ritual music, dance and art exclusively associated with that religion. No secular or non-Buddhist songs, dance or art were performed by the monks. The only conclusion can be that these activities had the principle or primary effect of advancing Tantric Buddhism.

Principle

"The entanglement analysis typically is applied to circumstances in which the state is involving itself with a recognized religious activity or institution" and fails to engage in "religiously neutral educational choices." Bachman at 554.

Violation of Principle

By wholesale and indiscriminate involvement in Tantric Buddhist religious rituals, the Grand County School District failed to limit itself to "religiously neutral educational choices" thereby entangling itself with a religious activity or institution in violation of the Establishment Clause. Further the action violated both Section 53A-13-101.1(3), Utah Code Annotated, "Public schools may not sponsor prayer or religious devotionals;" and Section 53A-13-101.1(4), Utah Code Annotated, "School officials and employees may not use their positions to endorse, promote, or disparage a particular religious, denominational, sectarian, agnostic, or atheistic belief or viewpoint."

-Similar Violations of Bauchman Arising from Mandala Devotionals

There is no evidence that classroom visits to the mandala and related ceremonies were related to established balanced curricula. The creation of the mandala was not simply an artistic creation related to the monks' religion and culture. The creation of the mandala was an act of religious devotion which was initiated with a sacred ceremony to invoke to "good powers" and which continued through creation of the mandala and concluded with a sacred ceremony. This was not the equivalent of a lay artist painting a portrait of Buddah or a picture of a Mormon temple. This was the creation and worship of a sacred icon by devoted monks. The district's action violated both Section 53A-13-101.1(3), Utah Code Annotated, "Public schools may not sponsor prayer or religious devotionals;" and Section 53A-13-101.1(4), Utah Code Annotated, "School officials and employees may not use their positions to endorse, promote, or disparage a particular religious, denominational, sectarian, agnostic, or atheistic belief or viewpoint." [continued ...]