Written by Don Byrd
In a long-running battle over the Bronx Household of Faith’s desire to use public school space for its worship services when school is not in session, the 2nd Circuit Court of Appeals has ruled in favor of New York City’s regulation banning such a use. Threading an interesting fine line, the 2-1 opinion (pdf) argues that a prohibition on worship services in school buildings is not improper viewpoint discrimination because what is being barred is not religious views, or discussion from a religious viewpoint, but the act of worshiping itself.
From the opinion:
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 the 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.
The decision is careful to distinguish “worship service” from the presence of any number of individual activities which are commonly present in a worship service, and which in themselves are not banned by the regulation:
[The City’s rule] prohibits use of school facilities to conduct worship services, but does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view. While it is true without question that religious worship services include such expressions of points of view, the fact that a reasonably excluded activity includes expressions of viewpoints does not render the exclusion of the activity unconstitutional if adherents are free to use the school facilities for expression of those viewpoints in all ways except through the reasonably excluded activity…. [T]he schools are freely available for use by groups to express religious devotion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine. It is only the performance of a worship service that is excluded.
The NYTimes adds:
One city lawyer, Jane L. Gordon, called Thursday’s ruling “a victory for the city’s schoolchildren and their families.” Ms. Gordon added that the Education Department was “quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”
Lawyers for Bronx Household indicated their intention to appeal the decision.
