In November 2012, the U.S. Second Circuit Court of Appeals heard oral arguments in the case of N.Y. City v. Bronx Household of Faith.
Bronx Household seeks to overturn this N.Y. City Education Department policy:
“No permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship.”
N.Y. City does not charge rent to the civic groups that use its schools.
The Bronx Household of Faith and other churches want to hold worship services rent-free in public schools.
They say the city unconstitutionally burdens their free exercise of religion when it makes them rent worship space elsewhere.
Jordan Lorence, attorney for Bronx Household, told the Appeals Court that the U.S. Constitution required N.Y. City public schools to host religious worship services.
According to the Associated Press (AP), Judge Guido Calabresi responded that he was “troubled by your argument that the Constitution requires a city to allow a religion to do what you do simply because it is a religion.”
He added, “That is a remarkable argument. You want to do what goes beyond what everybody else does.”
A Reuters article quoted Lorence, “They’re focusing on a type of worship that is Judeo-Christian, and that is the type of religion being excluded.”
The AP reported Judge Pierre Leval’s answer, that the city’s policy applied to everybody, so it did not discriminate.
Jane Gordon, senior counsel of the N.Y. City Law Department, has explained the policy. She said the city “was quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”
Under the policy, the city has twice refused permits to Bronx Household, and the church has sued.
Both times, U.S. District Judge Loretta Preska agreed with the church’s’s constitutional claims and authorized it to hold services in P.S. 15 while the case travelled through the federal court system.
As a result of her rulings, about 60 congregations conduct worship services in various N.Y. City schools.
In a an earlier suit before the same Appeals panel, Bronx Household made a different constitutional claim, that the city’s rule violated the church’s U.S. constitutional right to free speech.
It said the city allowed many other kinds of expressive activities in its schools, some including such elements of religious worship as prayers.
Therefore the city couldn’t discriminate against religious worship services.
In June 2011, the panel upheld the city’s policy. It characterized a religious worship service as a unique activity, different from other forms of expression.
Judge Leval wrote, “The prohibition against using school facilities for the conduct of religious services bars a type of activity. It does not discriminate against any point of view.”
Bronx Household soon returned to U.S. District Court with the current claim, that the city’s policy burdens the church’s U.S. constitutional right to free exercise of religion, by forcing it to pay rent for worship space.
The Appeals panel will rule soon on the free-exercise claim.
In an amicus brief to the Appeals Court, Americans United for Separation of Church and State commented sarcastically on Judge Preska’s decision.
“It is apparently the view of the district court and Bronx Household that withdrawal of this subsidy would impose a substantial burden on the religious exercise of Bronx Household and other churches, because they have grown so much while using school property during the long years during which the Board’s policy has been enjoined by the district court that—if forced to move to more expensive private facilities—they would be unable to afford to continue the same level or breadth of religious activity they engage in now.…
“In other words, the ruling below 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.”
In 2011, after the Appeals Court upheld the city’s policy, the N.Y. State Senate passed a bill requiring N.Y. City schools to host religious worship services. Before the Assembly could act, Bronx Household returned to U.S. District Court with its current claim, and the bill died.
If the Appeals Court upholds the city policy, as seems likely, we can expect another such bill. MCPEARL has written to state legislative leaders and Monroe County legislators urging them to reject any such measure.
The case is N.Y. City v. Bronx Household of Faith.