Court allows New York City to ban worship services in public schools

A federal appeals panel ruled that New York City could ban religious groups from holding worship services in public school buildings when school is not in session.

The U.S. Second Circuit Court of Appeals again upheld Thursday (April 3) a policy that bars worship services in the city's schools, saying the rule does not violate the First Amendment protection of religious liberty. The latest opinion in a nearly 20-year court case enables, though it does not require, the city's Board of Education to evict churches that use school facilities for corporate worship.

The case is centered on the Bronx Household of Faith, an inner-city New York City church, that sought to rent a public school building on Sundays to hold its weekly worship service but had its request rejected by the New York City Board of Education.

The Board of Education's policy prohibits "religious worship services" or using a school building as a "house of worship" outside normal hours, even though it permits individuals and other organizations to use the facilities for activities. The rule, however, allows religious groups to use schools "for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view," according to the Second Circuit Court.

In a 2-1 decision, the Second Circuit panel ruled the policy infringed upon neither of the First Amendment's religion clauses — the right to exercise religion freely and the ban on government establishment of religion.

"There is not a scintilla of evidence that the Board [of Education] disapproves of religion or any religion or religious practice, including religious worship services," judge Pierre Leval wrote for the majority. "Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion."

In dissent, judge John Walker said it was an "easy call" to conclude the board's policy is not neutral. He rejected the majority's opinion that the government would be subsidizing religion if it permitted worship services in its school. The board "charges the same rate to all organizations using its facilities," he said.

"Of the fifty largest school districts in the United States, New York City alone entirely excludes religious worship from its facilities," Walker wrote, adding, "It is striking that none of these other school districts appear to have the slightest concern about violating the Establishment Clause, nor have any of their community use policies been found to violate the Clause."

Jordan Lorence, lawyer for Bronx Household of Faith and senior counsel for the Alliance Defending Freedom (ADF), said in a written statement, "The First Amendment prohibits New York City from singling out worship services and excluding them from empty school buildings. The reason is because the buildings are generally available to all individuals and community groups for any activity 'pertaining to the welfare of the community.'"

The New York Civil Liberties Union (NYCLU) welcomed the Second Circuit ruling as a "victory for religious freedom."

"When a school is converted to a church in this way, it sends a powerful message to students and the community at large that the government favors that particular church," NYCLU Executive Director Donna Lieberman said in a written statement.

New York City Mayor Bill de Blasio told the media that he supports faith-based organizations' right to use the schools.

"I stand by my belief that a faith organization playing by the same rules as any community nonprofit deserves access," he told reporters April 3, according to The Times. "You know, they have to go through the same application process, wait their turn for space, pay the same rent. But I think they deserve access. They play a very, very important role in terms of providing social services and other important community services, and I think they deserve that right."

In 2011, the year before the ban was put into affect and then temporarily suspended, more than 160 New York City churches worshiped in public school buildings in 2011, according to Lifeway Research.

Congregations meeting in New York City schools have fed the poor, helped rehabilitate drug addicts, worked toward the restoration of families and provided for the disabled, according to ADF. In addition, they have painted the interiors of inner-city schools; donated computers, musical instruments and air conditioners; and provided effective after-school programs, ADF reported.

"In a convoluted and misguided policy the New York City Board of Education allows community groups to rent empty school facilities for a wide variety of meetings, which can include prayer, Bible reading and hymn singing, but not worship services led by ordained clergy," said Galen Carey, National Association of Evangelicals Vice President.

Many congregations seek access to various locations for their religious worship services, either on a short-term or long-term basis, when they are just beginning to form, have outgrown their old facilities, or have suffered flood or fire. This ruling sets a precedent of unequal access to public buildings for churches and faith groups across the country.

"The First Amendment prohibits New York City from singling out worship services and excluding them from empty school buildings," said Jordan Lorence, with the Alliance Defending Freedom.

"Churches and religious groups pay the same uniform rates that everyone else does to use the schools," he added.

The court's ruling reversed federal judge Loretta Preska's June 2012 opinion that the school policy violated both the free exercise of religion and establishment clauses of the First Amendment.

An earlier round of decisions that went against NYC churches was based on an examination of the free speech and establishment clauses, not the free exercise clause, which was considered in the latest case. That earlier round of cases ended in 2011, when the Second Circuit Court, which has now considered the policy six times, upheld the school rule and the Supreme Court declined to get involved.

The Second Circuit's 2011 decision prompted a crisis for dozens of churches. Some moved their meetings to other facilities, but Preska blocked enforcement of the ruling, enabling others to continue using school space.

Bronx Household of Faith is considering whether to appeal to the U.S. Supreme Court or beyond the three-judge panel that made the decision to the full appeals court, ADF said.


BP news and Christian Examiner staff contributed to this report.