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New York City cannot prevent a Manhattan church from inviting homeless people to sleep on its steps, a federal appeals court has ruled. The unanimous ruling late Wednesday from the 2nd U.S. Circuit Court of Appeals affirmed a preliminary injunction and found that the city had not cited any law that would justify forcing homeless people to leave the church’s property. Agreeing with Southern District of New York Judge Lawrence M. McKenna, the appellate court said that Fifth Avenue Presbyterian Church would likely win its lawsuit against the city on grounds that its actions were protected religious activity. The court also took issue with an argument the city presented for the first time on appeal: that the church was running an “inadequate” shelter and was encouraging homeless people to avoid safer and more sanitary alternatives. “Common sense, in addition to evidence put forth by the homeless plaintiffs, suggests that the majority of these homeless will not go to shelters if the City is permitted to disperse them,” wrote Judge Chester J. Straub in Fifth Avenue Presbyterian Church v. City of New York, 02-7073. “Thus, it is doubtful that the ‘ends’ support the City’s ‘means … .’” Michael A. Cardozo, corporation counsel for the city, said in a statement: “We believe that the court’s decision will hinder the city’s efforts to ensure that all providers of shelter comply with minimal standards and that homeless people have a safe and sanitary place to spend the night.” He continued: “We are confident … of establishing at trial that the church is not entitled to offer shelter without security protection, cover from the elements or even access to toilet facilities.” Jonathan R. Nelson, who represents the church, said he was pleased with the ruling, and added that his client would request a summary judgment in its lawsuit. “The ruling establishes that government actions that seek to restrict a church’s religious-based activity on its own property have to face strict scrutiny,” Nelson said. “I think the issues were pretty cut-and-dried.” Three years ago the church designated two areas on its property for the homeless to sleep and established rules for them, such as no begging, no loud music and no foul language. But last November the city, under former Mayor Rudolph W. Giuliani, told the church it would no longer allow the homeless to sleep on the church’s outdoor property. A month later, police removed the homeless from the property and, according to the church, threatened to arrest the homeless if they refused to leave. The church sued in federal court and sought injunctive relief preventing the city from entering the church’s property and dispersing the homeless. The city, now with the backing of Mayor Michael R. Bloomberg, responded that the church’s actions were not protected religious activity, and that the church was operating a shelter without a license, creating a public nuisance and violating city codes. After a hearing McKenna rejected the city’s arguments and partially granted the church’s request for an injunction, saying the city could not interfere with homeless people sleeping on the steps or landings above sidewalk level. However, the judge said, the city could regulate the presence of the homeless on the church’s property adjacent to the sidewalk on 55th Street. On Wednesday the 2nd Circuit affirmed that ruling, saying “the City has not sufficiently shown the existence of a relevant law or policy that is neutral and of general applicability, and that would therefore justify its actions in dispersing the homeless from the Church’s landings and steps.” LIKELIHOOD OF SUCCESS The appellate court continued: “We agree with the district court that on the present record, the church has demonstrated a likelihood of success in establishing that its provision of outdoor sleeping space for the homeless effectuates a sincerely held religious belief and therefore is protected under the Free Exercise Clause.” Judges Sonia Sotomayor and Richard W. Goldberg concurred with Straub’s ruling. The church was also represented by Carter G. Phillips of Sidley Austin Brown & Wood, and Katherine Pringle of Friedman, Kaplan, Seiler & Adelman’s New York office. Assistant Corporation Counsel Mordecai Newman represented the city.

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