New York City may exclude certain religious groups from public buildings

This could be the most complicated civil rights case in the Second Circuit this year. The Court of Appeals decides whether New York City's prohibition against groups using public school buildings after hours for religious worship services violates the Establishment Clause. In a 2-1 vote, the Second Circuit upholds the rule and says there is no constitutional violation.

The case is Bronx Household of Faith v. City of New York, decided on June 2. This case has reached the Court of Appeals a few times before, gaining new life thanks to recent Supreme Court rulings that gave religious groups equal rights under the First Amendment to use school buildings in certain circumstances. Those Supreme Court rulings prompted the district court to issue an injunction prohibiting the City from enforcing the rule. While noting that the Supreme Court has not provided clear guidance on this issue (which is why the Second Circuit spent 1.5 years deliberating on this case), the Court of Appeals (Leval, Calabresi in the majority, Walker in dissent) vacates the injunction.

Rule 5.11 prohibits the use of public schools for "religious worship services." Plaintiff wanted to use the school after hours for "Christian worship services." As other organizations get to use the schools for their own purposes, Bronx Household of Faith brought this lawsuit. The Court of Appeals says the rule is not unconstitutional. While the Supreme Court has held in recent years that religious organizations can use public buildings to promote their point of view (placing them on equal ground with non-religious organizations who also use the buildings), Judge Leval says those cases do not apply because plaintiff wants to use the building for "worship services." This is a subtle distinction, one that does not persuade Judge Walker and will probably send this case to the Supreme Court. Here is why the Court of Appeals sided with the City:

The prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit. The conduct of services is the performance of an event or activity. While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule.

...

What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion. The conduct of a “religious worship service” has the effect of placing centrally, and perhaps even of establishing, the religion in the school.

In other words, it's the "worship services" angle that rubs the Court of Appeals the wrong way. A religious meeting for purposes of expressing religious devotion through prayer and singing is one thing. Religious services are quite another. Again, this is a fine line. Judge Leval tries to explain it in everyday terms: "There is an 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. Under rules consistent with the purposes of the forum, schools may exclude from their facilities all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even though, by participating in and viewing such events, participants and spectators may express their love of them. The basis for the lawful exclusion of such activities is not viewpoint discrimination, but rather the objective of avoiding either harm to persons or property, or liability, or a mess, which those activities may produce."

The Court then determines that the exclusion is reasonable under the Establishment Clause. The reasonableness analysis is deferential to governmental authorities, but the City is held to this easy standard because the Court of Appeals found that the City's rule does not otherwise violate the First Amendment. The exclusion is reasonable because the City has a "strong basis" to believe that the rule was necessary to avoid an Establishment Clause violation. Among other reasons, the Court finds, "the performance of worship services is a core event in organized religion. ... When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school a place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church."