By Nan Futrell, BJC Staff Counsel
In recent weeks, the legal battle between a New York City evangelical church and the city’s Department of Education over the use of school facilities for church services has experienced a revival of sorts.
Amid growing tension between a federal district court judge and the 2nd U.S. Circuit Court of Appeals that ruled against the church last June, the Bronx Household of Faith on February 16 won an order barring enforcement of a policy that prohibits outside groups from conducting religious worship services on school property. The following day, the 2nd Circuit issued an order clarifying that the lower court order only prohibited enforcement of the policy against Bronx Household — not other city churches. Then, on February 24, the district court judge issued a 51-page written opinion explaining why the church was entitled to the preliminary injunction and refuting the 2nd Circuit’s narrow application to Bronx Household only.
After the church lost its case in the 2nd Circuit, it sought review by the U.S. Supreme Court, a request denied in December 2011. Undaunted, the church returned to court asserting new claims — this time, alleging that the school’s ban on religious worship services violated the church’s rights under the free exercise and establishment clauses of the First Amendment. Last year, the 2nd Circuit decided the case based on the church’s argument that excluding worship services violated its free speech rights. According to the district court, this left the door open for Bronx Household to challenge the policy on other grounds.
The legal analysis to determine whether the government has violated free speech principles differs from that applied under the religion clauses. In examining Bronx Household’s free speech claim, the 2nd Circuit concluded the policy did not amount to viewpoint discrimination and was reasonable in light of the school’s interest in not violating the Establishment Clause.
In the context of a free exercise claim, a neutral, generally applicable rule is not unconstitutional merely because it incidentally burdens free exercise rights, but the government cannot single out and regulate conduct solely because it is religiously motivated. This is the basis on which the district court judge concluded that Bronx Household now possesses a viable free exercise claim: in her view, the regulation is neither neutral nor generally applicable, and the government has no compelling interest in enforcing it. The judge also found that the school’s policy violates the Establishment Clause by giving school officials discretion to determine what activities amount to “religious worship services.”
In its February 17 order, the 2nd Circuit promised that it, too, would follow with a further order and written explanation. As onlookers await that next development, one thing seems clear: this struggle is far from over.
