Ruling in a long-running case that may not yet be at an end, a panel of the Manhattan-based U.S. Court of Appeals for the 2nd Circuit ruled on April 3 that the New York City Board of Education did not violate the First Amendment when it adopted a policy in 2007 providing that outside organizations and individuals may receive permits for use of school buildings outside of school hours but not if their purpose is to hold “religious worship services.” The lawsuit was filed by a church, the Bronx Household of Faith, whose application to hold religious worship services at a public school in the Bronx was denied after this policy was adopted.
This church and the Board of Education have been litigating about the church’s access to school space for a long time. Judge Pierre Leval’s April 3 opinion cites four prior opinions by the court of appeals, all titled Bronx Household of Faith v. Board of Education, dating back as far as 1997. In the litigation that followed the Board’s 2007 policy adoption and subsequent denial of a new application by the church, District Judge Loretta Preska had ruled that the policy violated the church’s First Amendment free speech rights. A content-based regulation or prohibition of speech can only be upheld if the government has a compelling interest in limiting the speech, usually to avoid serious public disorder, and Judge Preska held that this standard had not been met. The earlier ruling did not turn on the religious nature of the case. The 2nd Circuit disagreed with Judge Preska on that point, and sent the case back to her for further consideration. In her more recent ruling, she accepted the church’s argument that excluding religious worship services violated the church’s 1st Amendment right to free exercise of religion.
Essentially, the church argues that by opening up the schools to use by private (non-governmental) groups outside of school hours, the Board has created a public forum in which it may not discriminate against religious uses. Actually, as the majority of the panel pointed out in its decision, the Board’s exclusionary policy is rather narrow, and does not include all religious uses. For example, the church could receive a permit to hold a Bible-study group or a religious discussion group in a school building. The only limitation, quite narrowly, is to deny use of premises for an actual worship service. According to news reports, many small churches around the city who cannot afford to rent facilities large enough for worship services have sought to use school auditoriums, and have sometimes attracted hundreds of people to such services on a regular basis, hanging banners and other indicia that, in effect, convert the space into a religious sanctuary during the service.
In her most recent ruling, Judge Preska accepted the church’s argument that the Board’s policy violated the Free Exercise Clause because the schools are “the only location in which [Bronx Household’s congregation] can afford to gather as a full congregation [for Sunday worship services] without having to curtail other of their religion’s practices.” The appeals court rejected this rationale. “The District Court cited no authority for this proposition,” wrote Judge Leval, “and we know none.”
“The Free Exercise Clause,” wrote Leval, “has never been understood to require government to finance a subject’s exercise of religion,” and the court considered that making school facilities available for religious worship services at little or no charge was actually a subsidy for the church, especially in light of the cost of renting large spaces in New York City. The court cited Supreme Court and lower court decisions reinforcing this point.
In dissent, Judge John Walker pointed to a Supreme Court decision that had struck down a municipal ordinance that prohibited a ritual chicken slaughter practice of a Christian sect, arguing that it was a form of discrimination against religion. Judge Preska had relied heavily on this decision, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). Walker argued that singling out religious worship services for prohibition on school grounds was, similarly, a form of discrimination against religion. The majority rejected this contention, claiming that Judge Preska’s ruling was “based on a misunderstanding of Lukumi,” and that “a reasonable government decision not to subsidize a category of activity is not a suspect discrimination among religions merely because some religions do and others do not engage in that activity.” The court said that although there were “words in the Lukumi opinion which, if taken out of context, could be read as expressing such a message, it becomes clear when the words are considered in context that they mean no such thing.”
In Lukumi, the city was outlawing a specific religious practice. By contrast, the Board of Education was not outlawing anything. The churches are free to carry on their religious worship services, just not in school buildings paid for by the taxpayers. The court reported that the Board had expressed fear that allowing the services to be held in school buildings might violate the Establishment Clause, which forbids the government from endorsing or prefering a particular religion. Indeed, the Establishment Clause early in our history gave rise to the expression “a wall of separation between church and state,” signifying a belief that both government and religion would be better off if there is no entanglement between them. Along the same lines, the court rejected the church’s argument that the Board’s policy required a certain amount of entanglement, because school authorities would have to make decisions whether particular activities proposed by a religious organization to be held at a school constituted “religious worship services.” The court concluded that the need to make such determinations did not require any more entanglement than the recently adopted “ministerial exception” to Title VII, under which the Supreme Court held that the 1st Amendment required a judicially-devised exception to federal anti-discrimination laws for the employment policies of religious organizations, as they affect people occupying positions that the religious body regards as carrying out the ministering functions of the religion. (Those disputes tend to revolve around staff at religious schools.) In this case, the court found, there is minimal entanglement, because the plaintiff here specifically identified the purpose for the permit it was seeking as holding worship services, so school authority had no need to make further inquiry about the nature of the proposed activities.
Judge Leval also pointed out that in the Lukumi case, the regulation in question was adopted because the city council disapproved of ritual sacrifice of animals. In this case, however, there was no question of the Board of Education disapproving of religious worship services. “There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services,” he wrote. “Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion.”
The court found that it was not necessary for it to decide whether allowing the services on school property would violate the Establishment Clause, however, concluding that it was sufficient in this case to find that the Board could reasonably have feared such a violation and wanted to avoid the possibility. Some opponents of allowing church services on school property were disappointed that the court did not make this additional finding, but it is a well-established tenet of constitutional adjudication that courts try to avoid deciding constitutional questions if they are not necessary to decide a case. In this instance, having found that the Board was not motivated by hostility toward religion, and that the policy was not adopted to suppress particular religious practices, the court saw no need to rule on the Establishment Clause question.
The court relied heavily on a 2004 decision by the Supreme Court, Locke v. Davey, which rejected a free exercise challenge to a limitation that the State of Washington put into its graduate scholarship program. The state, seeking to avoid any possible Establishment Clause argument, provided that such scholarships could not be used to fund education for religious ministry. A scholarship recipient could use the scholarship money to pursue graduate study in the history of religion, for example, but not to pursue a theology degree. The state was not banning education in theology, certainly, but was taking the position that the state shouldn’t pay to educate people to be ministers. (Paying for the education of ministers is a traditional state function in countries that have an established church, such as Great Britain’s Church of England. This was exactly the kind of practice that the proponents of the 1st Amendment were trying to avoid back in 1791 when it was adopted by Congress and proposed to the states for ratification.) While this might be called a form of discrimination against religion, the Supreme Court was not willing to condemn it, distinguishing the state of Washington’s action from that in the Lukumi case. “In the present case,” wrote the Supreme Court in Locke v. Davey, “the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.”
The 2nd Circuit panel similarly saw this as really a funding case. Can the Board of Education decide that it does not want to provide financial assistance by allowing its property to be converted to religious worship service use? In light of Locke, the 2nd Circuit panel majority did not see this as a difficult question. “Underlying the Board’s prohibition is a slightly different manifestation of the same historical and constitutional aversion to the use of public funds to support the practice of religion cited by the Court in Locke. As in Locke, the Board’s interest in respecting the principle of the Establishment Clause that disfavors public funding of religion is substantial, and the burden, if it can properly be called a burden, that falls on Bronx Household in needing to find a location that is not subsidized by the City for the conduct of its religious worship services, is minor from a constitutional point of view.” The court also emphasized the narrowness of the prohibition, as supporting the view that the policy does not reflect any general hostility to religion or particular hostility to Bronx Household, and said that the Board should be shielded from constitutional liability “if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of the Establishment Clause by hosting and subsidizing the conduct of religious worship services.”
But, of course, given real estate prices in New York, the burden is not minor from a practical, logistical point of view, which may help to explain Judge Walker’s dissent. He argued that allowing the church to use public school space that is available generally to community groups “is hardly financing of that entity” and that “shutting the door to religious worship services in such a setting when every other activity is permitted strikes at the [Free Exercise] Clause’s core.” He argued that the policy “plainly discriminates against religious belief and cannot be justified by a compelling government interest.” Furthermore, Judge Walker signaled his view that this should not be the end of the case. “This case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review,” he wrote.
However, political developments in response to the court’s ruling may alter the calculus and make further appeal unlikely, as Mayor Bill DiBlasio has stated his support for allowing churches that cannot afford to rent suitable space to use otherwise unused school buildings on Sundays, a view he reiterated in response to media inquiries after the 2nd Circuit decision was released. Since the legislature approved mayoral control of the school system early in the Bloomberg Administration, the mayor could undoubtedly prevail upon school authorities to change the rule and, if he did so, to moot the legal controversy. If he did that, however, the Establishment Clause question would loom large. Taxpayers objecting to the use of buildings constructed and maintained with public funds for religious worship services might set off new litigation, requiring an answer to the question the 2nd Circuit panel refused to answer in this case.