In May 2012, the U.S. Second Circuit Court of Appeals stopped the Greece Town Board’s official prayers, because they affiliated the town with Christianity.
The suit, Galloway and Stephens v. Town of Greece, had nothing to do with public schools, but the court’s reasoning may help to get worship services out of N.Y. City public schools.
Writing for a unanimous panel, Judge Guido Calabresi said a “practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates a clear command of the Establishment Clause.”
Courts have used many terms to describe what government must not do with respect to religion. It must not promote, advance, endorse, sponsor, entangle, or prefer religion. Judge Calabresi relied on two U.S. Supreme Court precedents against government affiliation with religion.
A N.Y. City church, the Bronx Household of Faith, has held Sunday worship services for twelve years in N.Y. City’s P.S. 15.
Reasonable, objective observers might well think the school affiliated with a particular religion.
N.Y. City has tried repeatedly to eject Bronx Household and other churches from its public schools. In response, Bronx Household has sued the city, claiming a U.S. Constitutional right to worship in public schools.
In 2011, a Second Circuit panel ruled in favor of N.Y. City. The opinions didn’t mention affiliation.
In a comment on the decision, Senior Counsel Jane Gordon of the N.Y. City Law Department referred to the affiliation problem.
She said the Education Department “was quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”
The same Judge Calabresi who stopped government affiliation with religion in the Town of Greece wrote and voted in favor of N.Y. City in the 2011 Bronx Household decision.
In January 2012, the Bronx Household of Faith returned to U.S. District Court with additional U.S. constitutional claims. Obliging Judge Loretta Preska let the churches stay in the schools, at least until she decides the case.
All parties expect the District Court losers to appeal to the Second Circuit. The Appeals panel can then call upon the Greece Town Board precedent against government affiliation with religion.
Judge Calabresi clerked for U.S. Supreme Court Justice Hugo Black, a heroic defender of church-state separation. Justice Black wrote the U.S. Supreme Court decision against N.Y. State’s classroom prayer, Engel v. Vitale, 50 years ago.