Once again, the U.S. Court of Appeals for the Second Circuit grappled yesterday with the constitutionality of a New York City Board of Education rule barring religious worship in public schools.
Reviewing the latest in a series of injunctions against the rule issued by a district court, Judges Guido Calabresi (See Profile), Pierre Leval (See Profile) and John Walker Jr. (See Profile) may have a sense of déjà vu as they heard spirited oral arguments in advance of issuing their fifth opinion in a controversy that has been litigated for more than 15 years.
The circuit has issued opinions in Bronx Household of Faith v. Board of Education, 12-2730, in 1997, 2003, 2007 and 2011.
Yesterday, the Board of Education was asking the circuit to reverse Southern District Judge Loretta Preska (See Profile) and defending itself against the claim that it is violating the religious rights of church groups that for years have used the schools for services and instruction after school hours.
The reason the board adopted the rule against after-hours worship, argued Assistant Corporation Counsel Jane Gordon, was that it was sincerely trying to avoid a claim it was establishing or endorsing religion.
“I did not expect to be here again” this soon, Gordon told the panel with a measure of exasperation. “The district court has put this department right back between a rock and a hard place” on the issue and “there’s nothing the department can do to avoid actual or perceived violations of the establishment clause.”
But speaking for the plaintiff Bronx Household of Faith, Jordan Lorence of the Washington, D.C.–based Alliance Defending Freedom told the panel that in adopting the rule, the city “targets a distinct religious practice that has no secular analogue.”
The conflict in Bronx Household of Faith is whether the First Amendment is violated by Chancellor’s Regulation D-180, which bars the use of a public school building after hours for “religious worship services” or as a “house of worship.”
In June 2011, Judges Calabresi and Leval upheld the regulation as a content-neutral measure logically adopted to avoid being sued for violating the establishment clause. Walker dissented, and the U.S. Supreme Court declined to hear the case.
But in February, Preska issued another injunction against the rule, finding this time that it violated the First Amendment’s free exercise clause.
The New York City Law Department, citing the trouble to which the city and the churches had gone to wind down the use of schools for worship, moved for a stay of Preska’s ruling.
The circuit denied the stay, but sent the case back to Preska for a quick adjudication so it could resolve the inevitable appeal that would follow.
On June 29, Preska set up that appeal by ruling again for the Bronx Household of Faith, saying enforcement of the rule “would amount to a concrete loss of religious freedom.”
For yesterday’s arguments, the city’s brief by Gordon said that the law of the case and res judicata blocks Bronx Household of Faith from mounting another challenge on free exercise grounds or relitigating the establishment clause claim.
Even if the circuit finds that the church can raise anew the free exercise claim, Gordon states, “the district court’s analysis of this issue is wrong.”
Gordon also states that Preska’s analysis of the rule under the establishment clause “fails to accord the department the leeway this court has found permissible and necessary, and fails to recognize the department’s compelling interest in avoiding establishment clause violations.”
But in their brief, Alliance for Freedom states that the city policy violates the free exercise clause because it is not neutral on its face and “it singles out ‘religious worship services’ for exclusion” by favoring “non-theistic religions over theistic religions.”
It also violates the establishment clause both by preferring some religious groups over others, the lawyers say, and it “excessively entangles the government with religion” and “inhibits religion.”
Gordon told the panel yesterday that 99 congregations now have permits for after-hours use of public schools. In at least 80 of the cases, worship services are held repeatedly.
Gordon was asked by the judges how the Board of Education makes the call when a religious group applies to use the schools.
If the group does not characterize its proposed use as worship, she said, and they don’t use it as a house of worship, then absent some obvious evidence to the contrary, the group can use the school.
Calabresi asked what happens if a group applies saying that worship services are not part of the plan, but then proceeds to advertise worship services once it gets the permit.
“We have to be deferential” to the constitutional and religious rights of the applicant, Gordon said, but “we don’t have to be stupid.”
Gordon said the city is entitled to some finality on an issue it has seemingly litigated forever.
“I couldn’t agree with you more,” Walker said. “Fifteen years is a long time for a lawsuit.”
Lorence engaged the judges with aggressive arguments, insisting under questioning from Calabresi and Leval that the rule should be subjected to strict scrutiny analysis—proof that the rule serves a compelling governmental interest and is narrowly tailored to achieve that interest.
The mere fear that the Board of Education could be sued for violating the establishment clause is too speculative to constitute a compelling interest, Lorence said.
He said that once the city opens up the forum, “the government must justify what it’s targeting.”
Lorence also said the city’s supposed fear of appearing to endorse a religion should be put in context.
The city seem “to have no concern” that it is “violating the free exercise clause,” he said.
Both Leval and Calabresi made the point that the city would, by definition, have to consider religion in trying to avoid violating the establishment clause.
“Why,” Calabresi wanted to know, “is this a direct targeting of religion” rather than simply a statement by the city about what anyone can do at a city school?
“I’m not saying the policy of the City of New York is a good one,” said Calabresi. “I’m not saying I agree with it.”
He continued, “I am troubled by your argument that the Constitution requires cities to allow a religion to come in and do what no one else does. That is a remarkable argument.”
@|Mark Hamblett can be contacted at email@example.com.