In contradiction to President Obama's words of his "unwavering support" for religious liberty and the "right to worship," his Department of Justice has decided not to support the right of religious groups to meet in empty public schools in New York City for their worship services. This decision is particularly surprising and disappointing because it reverses the support the DOJ has stated three times before in this case for the right of religious groups to meet in NYC public schools on the same terms and conditions that it allows other community groups to meet.
This case has lasted 18 years. It centers on Bronx Household of Faith, a small evangelical Christian church meeting in a poor neighborhood, which has challenged a NYC public school rule that bans private worship services during nonschool hours. Right now, religious groups are meeting in the schools because of a lower court ruling striking down the policy. NYC appealed the decision to the U.S. Court of Appeals for the Second Circuit, which will hear the case November 19.
This will be the fifth time the appeals court has heard this case. In the past three appeals, the DOJ has filed friend of the court briefs strongly supporting the First Amendment rights of Bronx Household of Faith and other religious groups to meet in the schools. The DOJ has repeatedly agreed with Bronx Household of Faith that it is unconstitutional for NYC to single out religious worship services and exclude them from meeting in the 1,200 school buildings (which were used for 120,000 different meetings during the 2010-11 school year alone).
However, with this appeal, President Obama's leaders at the DOJ decided to break with the department's repeated past support for equal access. And there is no explanation for this abrupt change of course.
Allowing religious groups to meet in public buildings the same way that other groups can meet is common sense, as well as what the Supreme Court has ruled the Constitution requires at least five times since 1981. Why is Obama's DOJ declining to follow the position its predecessors have taken repeatedly in the past?
This fits a disturbing pattern in which President Obama claims that he supports religious liberty, but then his lawyers at the DOJ either oppose it or fail to support it when the opportunity to act arises.
Last January, we saw the embarrassing spectacle of a DOJ attorney before the Supreme Court, arguing in the Hosanna-Tabor case, that churches have no more constitutional right to choose their leaders than labor unions have. All nine justices rejected the DOJ's stunningly cramped view of religious liberty, including Justice Elena Kagan, President Obama's first Solicitor General at the DOJ before being appointed to the Supreme Court.
Also, DOJ attorneys have strongly opposed lawsuits by religious institutions and small businesses owned by people of faith who oppose the HHS mandate requiring them to pay for abortifacients and contraceptives for their employees, in conflict with their prolife religious beliefs. What is especially galling about the DOJ's opposition in these cases is its refusal to obey the Religious Freedom Restoration Act, a federal law Congress passed so that people with conscientious objections would have an opportunity to argue in court that they are entitled to an exception from a specific federal law. Rather than accommodating the prolife beliefs of the religious people and institutions here, the DOJ opposes them.
President Obama and Attorney General Holder should put some actions behind their verbal support for religious liberty. They made a huge mistake when they decided to sit out the Bronx Household of Faith case and not add the U.S. Government's voice to oppose NYC's policy banning private worship services in school buildings. Religious liberty is not just a platitude but something the Constitution requires the federal government to protect.