The Board first denied the Church’s application to rent space in 1994, based on its regulation that, “No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school.” The Church brought an action challenging this, but lost when J. Preska found that the Board had created a limited public forum. A limited public forum is when the government creates a place of communication for the public by certain speakers or to discuss certain subjects.1 Restrictions on access for certain speakers and subjects must be reasonable and viewpoint-neutral. J. Preska found that the regulations were reasonable, and were related to a legitimate government interest—and granted summary judgment (ruling on the law without a trial) for the Board.2 The Second Circuit agreed with that judgment in 1997, and the U.S. Supreme Court denied certiorari.3 The Second Circuit held that worship and religious instruction are forms of speech that cannot be prohibited, but a distinction could be made to prohibit religious worship services.
A U.S. Supreme Court case in 2001 changed the landscape. The Good News Club v. Milford Central School4 held that speech that discusses otherwise permissible subjects cannot be excluded from a limited public forum just because it has a religious viewpoint. After this, the Church challenged the Board’s policy again, arguing that Good News Club effectively reversed the previous decision in favor of the Board.
In 2002, J. Preska issued her first preliminary injunction temporarily forbidding the Board to exclude the Church, finding the Church met the standard that it was likely to suffer irreparable harm and was likely to succeed on the merits.5 She agreed that the law had changed. The school was a limited public forum, and excluding worship from that forum was viewpoint discrimination, which is not allowed.
In 2003, the case went back to the Second Circuit.6 The panel was split, but it affirmed the district court’s injunction, agreeing that the situation was similar to Good News Club. The Board fought on.
In 2005, the district court granted summary judgment and a permanent injunction in favor of the Church. This meant the Church had to be allowed to use the school building.7 The key to the argument was that a government body may “not impose restrictions on private speech that discriminate on the basis of viewpoint” in a limited public forum. By this time, the Board’s policy said, “No permit shall be granted for the purpose of holding religious worship services,” though other religious gatherings were allowed. J. Preska found that the Board was discriminating against religious viewpoints—and also that allowing the Church to use the property did not violate the Establishment Clause.
The Second Circuit vacated—or undid—her opinion in 2007, but could not agree on the grounds.8 J. Walker believed the restriction on worship was not viewpoint-neutral and agreed with J. Preska. J. Calabresi believed that the restriction was viewpoint-neutral and therefore okay. J. Leval believed the dispute was not ripe or ready for decision because the Church had not been denied under the new policy. Taking Judges Calabresi and Leval together, the decision vacated the permanent injunction and left the way open for new proceedings.
In 2007, the Church applied to the Board under the new policy, and the Board denied the application. Once again, J. Preska granted summary judgment for the Church.9
The Board again appealed, and the Second Circuit again reversed in 2011, in a split decision, on the basis of free speech and the Establishment Clause.10 This time, Judges Leval and Calabresi agreed, while J. Walker dissented. The majority agreed that the Board had created a limited public forum in the school, and that it could not discriminate against any point of view. But the Court decided all the Board was doing was excluding an event or activity called a worship service, not excluding religious groups from using school property for expressions of religious points of view—including prayer, hymns, preaching, teaching. “It is only the performance of a worship service that is excluded,” said the Second Circuit with a straight face. Expression of all points of view was still permitted, and there was no free speech problem as long as the exclusion was reasonable. And yes, the exclusion was reasonable, because the Board had Establishment Clause concerns that allowing worship services might seem to be endorsing religion. (In addition, the Court made a small point that is likely to appear again—that the Church excludes from full participation in the services those who are not baptized or are of different faiths. While this is not the central holding of the case, it is a nod to the “all-comers” argument that seems to be shaping up as the new battleground in First Amendment litigation.) In addressing whether it would be unduly entangling for the government to decide what a worship service is, the Court simply pointed out that the Church had not contested that it wanted to conduct “Christian worship services.” The U.S. Supreme Court denied certiorari on December 5, 2011, and the battle seemed to be over.11
At this point, the Board was poised to kick out not only this Church but also all other churches using school buildings in New York City, and the churches were scrambling for meeting space. Once again, the Church asked for a preliminary injunction, saying that some claims were undecided. J. Preska granted the request.12
J. Walker of the Second Circuit had pointed out in his dissent that the Board policy also raised Free Exercise Clause concerns. The Free Exercise argument had never been considered. The standard of analysis for a Free Exercise argument is different and tougher. If a law prohibits conduct undertaken for religious reasons—such as holding a worship service—in this context, such a law “must be justified by a compelling governmental interest, and must be narrowly tailored to advance that interest.” J. Preska found that the Board’s policy prohibited conduct undertaken for religious reasons. The policy both restricted conduct done for religious reasons and discriminated between types of religion, because not all religions’ gatherings would fit the definition of “worship services.” Further, she found that the Board’s Establishment Clause concerns were not compelling, since no court had ruled that permitting worship services violates the Establishment Clause. Nor was the Board’s solution narrowly tailored to solve the problem—it just broadly forbid the worship services. Not only that, J. Preska held that new evidence showed that the Board itself was violating the Establishment Clause, because it had to determine what “worship” was, by defining the “worship services” that were not allowed, which is entangling the government in religion. For instance, in the latest Church application, the Board itself had added the word “worship,” where the Church had only listed the components of religious activity.
Under the terms of this latest injunction, the churches continue to meet—probably until the Second Circuit speaks again.
5 Bronx Household of Faith v. Bd. of Education, 226 F.Supp. 2d 401 (S.D. N.Y. 2002).
6 Bronx Household of Faith v. Bd. of Education, 331 F.3d 342 (2003).
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