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U.S. Appeals Court: Schools Can Ban Worship

Ruling says New York ban on church services doesn't discriminate against expression. But legal scholars say the decision is unlikely to stand.

The Bronx Household of Faith, a New York City Conservative Congregational church, is between buildings. After meeting in a coffee shop, city apartments, and most recently the auditorium of the Bronx's P.S. 15, a K-8 public school, the church is constructing its first permanent meeting space. But that space has yet to be completed. For now, the congregation, which has been a "church without walls" since the 1970s according to its website, is at the center of a debate over whether churches have a constitutional right to meet in public schools.

In a June 2 decision, the U.S. Court of Appeals for the Second Circuit ruled 2-1 that the New York City Department of Education can bar churches from renting school facilities for worship services. The decision overturned a 2002 lower court ruling that allowed the congregation, in addition to nearly 60 other churches, to conduct worship services in school buildings.

Second Circuit Judge Pierre N. Leval cited the First Amendment's prohibition on establishing religion as the impetus behind the decision. "The church has made the school the place for the performance of its rites, and might well appear to have established itself there," he wrote. "The place has, at least for a time, become the church."

Judge John Walker dissented, writing in a 28-page response that "such an argument—that somehow a neutral forum is physically (or perhaps metaphysically) transformed into a non-neutral forum by the private activity undertaken there—has the feel of rhetoric." Walker said that the court's decision indicated viewpoint discrimination: "Bronx Household's services do not convert P.S. 15 into a church any more than the Boy Scouts' meetings convert it into a Boy Scout lodge."

The ruling raises questions about the nature of worship services, particularly to what degree they transform the space compared to the activities of other private groups. Kim Colby, senior counsel for the Christian Legal Society, said that historically, when it comes to free speech protection, there is no legal difference between church gatherings and other private meetings. Colby cited Widmar v. Vincent (1981), in which the Supreme Court ruled that the First Amendment's guarantees of free speech protect students who want to hold worship services on a public university campus. "There is no indication when 'singing hymns, reading scripture, and teaching biblical principles' cease to be 'singing, teaching, and reading'—all apparently forms of 'speech,' despite their religious subject matter—and become unprotected 'worship,'" the court said.

Colby said that while there may be fundamental distinctions between religious speech and nonreligious speech, the Second Circuit Court's desire to parse these differences legally is an anomaly. Defining the differences between "religious worship" and "religious worship services" in a court of law would invite entanglement and viewpoint discrimination because of variances in perceptions of worship among different religious backgrounds, she said. "What Quakers consider worship is different from what Catholics consider worship, and liturgical rites are often very similar to academic practices in appearance."

Despite the unclear nature of worship activities, Robert Tuttle, professor of law and religion at George Washington University, said that "the real key to this case is just the idea that there would be an Establishment Clause decision, because it's at that point that the city just doesn't have a plausible argument. … There is no way that accommodating religious groups on an equal basis of using schools over the weekend could be construed as government establishment."

The Supreme Court's 2001 decision in Good News Club v. Milford Central School, which allowed an after-school religious group to meet in a public elementary school, seems almost directly related to the questions in the Bronx Household of Faith case, Tuttle said.

In his decision, Leval said the facts of the Bronx Household of Faith case differ significantly from the Good News Club and similar cases. "In each of those cases, the policy being enforced categorically excluded expressions of religious content," he wrote. "Here, by contrast, there is no restraint on the free expression of any point of view. Expression of all points of view is permitted. The exclusion applies only to the conduct of a certain type of activity—the conduct of worship services—and not to the free expression of religious views associated with it."

Like Good News Club v. Milford Central School, which also originated from the Second Circuit Court, the Bronx Household case may end up in the Supreme Court, said Jordan Lorence, senior counsel for the Alliance Defense Fund. The Bronx Household of Faith plans to appeal the Second Circuit ruling and submit it for reassessment by the full circuit court or the Supreme Court, he said.

While the case may reach the Supreme Court, there is little reason to think that the June ruling will mean a sweeping exit of churches from school buildings throughout the U.S., Colby said. "This is such a departure from the status quo, and because it goes against the status quo it is getting a lot of attention. But you find that often what is normative is right," she said. The Supreme Court has reprimanded the Second Circuit Court for ignoring precedent in the past, Colby said. "I wouldn't be surprised if the decision was instantly reversed just based on previous decisions."

Tuttle said that the widely uncontested presence of churches in U.S. public schools on weekends indicates that the Bronx Household of Faith probably isn't violating the Establishment Clause. "I wouldn't be surprised if the Supreme Court takes it, and if they take it, I wouldn't be surprised if they apply previous cases such as Good News Club and just say worship is religious speech, you're singling out speech for special disfavored treatment and that is viewpoint discrimination."

Leval disagrees. "We do not mean to imply that we think the Supreme Court somehow indicated in Good News Club that it would rule as we do on the exclusion of worship services," he wrote. "Our point is only that the Supreme Court has neither ruled on the question, nor even given any reliable indication of how it would rule."

Related Elsewhere:

The New York Law Journal has more background on the case.

Previous Christianity Today coverage related to church and state conflicts, the nature of sacred space, and worship includes:

Should the China Ambassador Worship at a House Church? | Observers discuss whether the U.S. ambassador to China should worship at an unregistered church to 'publicly identify with the persecuted.' (May 31, 2011)
Economic Bell Tolls for Nation's Church Steeples | Steeples may have outlived their times as signposts. People hunting for a church don't scan the horizon; they search the internet. (May 5, 2011)
Share Sacred Spaces?  | Observers discuss whether churches should lend worship space to other religions. (March 17, 2011)
The Trajectory of Worship | What's really happening when we praise God in song? (March 11, 2011)

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