N.Y. Schools Can Ban Church Worship Services, Court Rules

A federal appeals court ruled Thursday that New York City public schools can prohibit churches from using the facilities for worship services.

The Court of Appeals for the 2nd Circuit said the decision does not constitute viewpoint discrimination because it does not seek to exclude religious expression but rather excludes a type of activity – worship services.

"The exclusion of religious worship services is a reasonable content-based restriction," the appeals court said in its opinion.

It's been a long battle for Bronx Household of Faith. The church has been facing hurdles since 1994, when its application to rent a public school building for Sunday services was rejected by the New York City Board of Education.

Ever since then, the church has been in and out of court.

Thursday's decision reverses a lower court ruling that had blocked the city from enforcing a rule that bans outside groups from using school premises for religious services.

After 16 years, however, the battle still isn't over.

The Alliance Defense Fund, which is representing the Bronx church, plans to appeal.

"Religious groups, including churches, shouldn’t be discriminated against simply because they want to rent a public building just like other groups can," said ADF Senior Counsel Jordan Lorence.

“The idea that people of faith may be singled out for discrimination is flagrantly contrary to the U.S. Constitution. The 2nd Circuit greatly erred by not putting an end to the board’s continued defiance of the First Amendment."

Lorence pointed to a 2001 U.S. Supreme Court decision (Good News Club v. Milford Central Schools) where the justices ruled that it was unconstitutional for a public school district to exclude from its facilities a private Christian organization.

It was that high court decision that helped revive the case after it seemed that the church lost in 1998, when it exhausted all its options.

The church gained a favorable ruling from the district court in 2002 and from the appeals court in 2003. When the case was sent back to the district court on a technicality issue, it again sided with the church in 2007.

Ruling for the fourth time in the case, the 2nd Circuit decided Thursday 2-1 against the church.

The court emphasized the 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.

And in this case, the board was doing the former.

The court also noted that it is "reasonable for the board to fear that allowing schools to be converted into churches ... might 'foster an excessive government entanglement with religion' that advances religion."

"In the end, we think the Board could have reasonably concluded that what the public would see, were the Board not to exclude religious worship services, is public schools, which serve on Sundays as state-sponsored Christian churches."

In a dissenting opinion, Judge John Walker said the board's rule banning religious worship services violates the First Amendment's Free Speech Clause.

"I disagree and conclude that the Board’s discrimination against Bronx Household is based on its religious viewpoint," he wrote.

ADF has cautioned that the outcome of the case could have wide-ranging ramifications for churches throughout the nation that wish to meet in public schools.

"It’s very sad when government officials misinterpret the Constitution and attempt to kick such groups out," said Lorence. "That is clearly not at all what the authors of the Constitution intended."

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