N.Y. City Contests Church Services in Public Schools

The N.Y. City Education Department doesn’t charge rent to the civic groups that use its schools. The Bronx Household of Faith has taken advantage of the free space to hold worship services in P.S. 15 since 2002.

The N.Y. City Education Department does not want churches to conduct worship services in its public schools. It has tried to eject Bronx Household and other churches.

The church has sued to stay. It has taken the case up and down the court system so many times, that U.S. District Judge Loretta Preska called her June 2012 ruling Bronx IV. Preska decided in favor of Bronx Household, and N.Y. City appealed to the U.S. 2nd Circuit Court of Appeals.

An amicus brief supporting the City said Preska’s ruling “suggests that the Board cannot constitutionally withdraw a subsidy that it never voluntarily provided in the first place, but was instead forced to grant by the district court, because some New York City churches have effectively become ‘hooked’ on the subsidy.” Americans United for Separation of Church and State (AU) filed that amicus brief.

In the case of Bronx III, the church argued that the U.S. Constitution’s Free Speech Clause gave it the right to worship in a public school. In 2011, the 2nd Circuit Court of Appeals disagreed, and Bronx Household sued again (Bronx IV). This time Bronx Household claimed the City’s ban violated the church’s U.S. constitutional right to free exercise of religion.

Preska backed the church. She reasoned that N.Y. City landlords charge such high rents, that the loss of free meeting space would unconstitutionally burden the church’s religious practice. She held that the City could justify such a burden only if the U.S. Supreme Court had specifically banned the worship services as an unconstitutional establishment of religion.

That is, if the U.S. Supreme Court had not forbidden public schools to subsidize worship services, then the U.S. constitution required them to do it.

Preska also asserted that the ban itself established religion, because the City would entangle itself in a church’s affairs when it considered which activities were worship services.

The N.Y. City Bar Association’s amicus brief responded to that claim. It said the Appeals Court already “explicitly has held that the regulation at issue does not foster impermissible entanglement with religion.”

The Bar’s brief says the District Court itself established religion, when it enjoined the City’s regulation. A government action establishes religion if it has the purpose or effect of advancing religion, or if it excessively entangles government with religion.

The brief says the District Court’s injunction has a religious purpose, because its “sole function is to permit religious worship services where none would otherwise take place.”

“The Injunction improperly advances religion.…requiring the City to permit worship services in its schools.…”

“Allowing religious worship in the schools under the Injunction creates excessive entanglement with religion.…the City will be forced to respond to, among other things, complaints about the churches’ proselytizing activities, to monitor church literature to ensure proper disclaimers, and to use excessive caution in issuing permits.…”

The case is Bronx Household of Faith v. N.Y. City (IV).