In April, the U.S. 2nd Circuit Court of Appeals said again that N.Y. City could constitutionally forbid the Bronx Household of Faith and other churches to hold worship services in public schools.
Writing for the majority, Judge Pierre Leval used almost the same reasoning as he had when the court ruled the same way in 2011.
In both cases he declared a religious worship service a particular kind of activity, essentially different from the speech it includes, such as prayer, religious instruction, expression of devotion to God, and the singing of hymns.
Leval quoted from the 2011 decision, noting the “important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”
The church has taken its case up and down the court system so many times, that Judge Leval referred to the April decision as Bronx V. While the case moved from court to court, Bronx Household worshipped in P.S. 15 for fourteen years.
It may continue to worship there. First, the church has appealed the April ruling. Second, N.Y. City’s new mayor, Bill de Blasio, said during his campaign that he would allow worship in the city’s public schools.
Third, after the 2011 decision, the Legislature nearly passed a bill requiring N.Y. City to let churches worship in public schools. Only a 2012 District Court victory for the church stopped the process. If the church loses its appeal, and de Blasio changes his mind, legislators could revive the 2011 bill.
In 2011, Bronx Household had argued that it had a free-speech right to worship in a public school. After it lost the case, the church sued again, claiming that the school policy unconstitutionally burdened its religious liberty.
It reasoned this way:
N.Y. City charges users of its buildings only a maintenance fee, a payment much lower than a N.Y. City rent. If the city bars worship services in its buildings, the church must pay high rent elsewhere. The high rent burdens the church’s religious liberty. The District Court agreed.
In April, Judge Leval wrote, “The Free Exercise Clause…has never been understood to require government to finance a subject’s exercise of religion.”
Some congregations do not hold worship services. The District Court said N.Y. City’s ban on worship services discriminated against those groups that held them.
Judge Leval disagreed. He wrote, “Religions that conduct religious worship services.…may use the facilities for the same purposes and in the same manner as the facilities are used by religions that do not conduct religious worship services.”
N.Y. City bars worship services in public schools, because it doesn’t want to violate the U.S. Constitution’s ban on government establishment of religion.
The District Court said the U.S. Supreme Court had never interpreted the No-Establishment Clause to forbid worship services in public schools, so the city must allow them.
Judge Leval said the High Court had explicitly rejected that argument. He observed that city school board had good cause to consider the worship services a religious establishment. He wrote,
“During Sunday services, under the District Court’s injunction, the Board’s schools are dominated by church use: ‘Church members post signs, distribute flyers, and proselytize outside the school buildings; both congregants and members of the public identify the churches with the schools.’”
The District Court said N.Y. City had violated the No-Establishment Clause, because it decided what made a worship service.
Judge Leval wrote, “The Board’s policy is to rely on the applicant’s own characterization.…The Board may…look beyond the application at the applicant’s website and other public materials.”
He added, “Even if the Board were making its own determinations, [the Supreme Court] would not prohibit such a policy.” He referred to a recent suit in which the Justices themselves determined whether a particular church employee was a minister.
The case is N.Y. City School Board v. Bronx Household of Faith V.