School is not a church

The City of New York and the Bronx Household of Faith have been engaged in a vicious fight over the last two decades over the right to use public schools for religious purposes. This case has been to the Court of Appeals on various occasions. This time around, the Second Circuit says the City is allowed to prohibit religious organizations from using the schools for religious worship services.

The case is Bronx Household of Faith v. Board of Education, decided on April 3. It took the Second Circuit (Calabresi, Leval and Walker [dissenting]) 1.5 years to decide this case, which pits the Establishment Clause against the Free Exercise Clause, both of them in the First Amendment. As background, the Free Exercise Clause protects the right to worship as you choose. The Establishment Clause ensures church-state separation. So when the Household of Faith wants to hold services in a public school, that dispute creates the perfect constitutional storm.

A New York City regulation says that "no permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship." The district court said this rule violates the Free Exercise Clause and the Establishment Clause. The Court of Appeals reverses, holding that it was intended to prevent the City from violating the Establishment Clause. See how complicated this all gets?

There are a smattering of holdings in this decision.In rejecting the Free Exercise challenge, the Second Circuit says the Constitutional does not require the City to allow services simply because -- away from the school -- the plaintiffs cannot afford a large enough site for their services. While the Supreme Court says the government cannot enact rules that target one religion, although they are prohibited from worshiping at the school, plaintiffs are not being singled out here; there is no real favored comparator as there is no such thing as non-religious worship services (unless you go to a Springsteen concert in New Jersey).Ultimately, the Court says, "if the Board [of Education] has a reasonable, good faith concern that making its school facilities available for the conduct of religious worship services would give rise to a substantial risk of violating the Establishment Clause, the permissibility of the Board's refusal to do so does not turn on whether such use of school facilities would in in fact violate the Establishment Clause." In other words, the City gets the benefit of the doubt on predicting whether allowing the religious group to use the schools for worship would violate the Establishment Clause.

In rejecting the Establishment Clause challenge, the Court of Appeals notes that the government violates that Clause when it excessively entangles itself with religion. But the rule challenged here does not require the City to become excessively entangled in religion for the purposes of deciding what are religious worship services. The City does not make any determination whether an applicant's proposed activities constitute a religious worship service. "The Board's policy is to rely on the applicant's own characterization as to whether the applicant will conduct religious worship services."