Bronx Household of Faith co-pastor Robert Hall stands in front of P.S. 15/P.S. 291 in the Bronx, where the church held services, in December 2011.
Bronx Household of Faith co-pastor Robert Hall stands in front of P.S. 15/P.S. 291 in the Bronx, where the church held services, in December 2011. (AP/Mary Altaffer)

The rolling dispute over limits on the use of public schools by religious groups for worship services took another turn Thursday as a divided U.S. Court of Appeals for the Second Circuit upheld the school board’s policy.

Reversing Southern District Judge Loretta Preska (See Profile) again, Judges Pierre Leval (See Profile) and Guido Calabresi (See Profile) held that the New York City Board of Education, which allows community groups to use school buildings during non-school hours, does not violate the Free Exercise and Establishment Clauses of the First Amendment by banning worship.

Yet again, Judge John Walker (See Profile) dissented in Bronx Household of Faith v. Board of Education, 12-2703, a dispute with nearly 20 years of tortured history that has seen a host of injunctions, opinions, policy changes and an intervening U.S. Supreme Court decision. The case has been before the Second Circuit five times.

The litigation has been fought over the board’s struggle to grant access to religious groups on the same terms as other community groups, without allowing worship services that would expose the board to a lawsuit charging it was endorsing religion.

In February 2012, Preska granted a preliminary injunction against Board Regulation D-180, which governs the use of school facilities, saying it was not neutral because it “refers to religious practice without a secular meaning discernible from the language or context” and because “it discriminates between those religions that fit the ‘ordained’ model of formal religious services and those worship services that are far less structured.”

The judge followed in June 2012 with a permanent injunction, saying that the Bronx Household, a church of about 90 people, would suffer “a concrete loss of religious freedom” if evicted from the schools (NYLJ, July 2, 2012). When she blocked the regulation, some 80 organizations were holding religious services in city schools on a regular basis, more than three times the number that used the schools in 2005, according to the city’s brief.

Thursday, however, Leval wrote for the majority that the “board’s prohibition was consistent with its constitutional duties.”

Regulation D-180 §I.Q. governing the “extended use” of school facilities during non-school hours, requires community groups to obtain a permit to use the schools rent free, but it states, “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”

The circuit limited its consideration to the first clause, concluding that the denial of the Bronx Household’s permit under that clause was constitutional. The panel also took note of Regulation D-180 §I.S., which allows permits to be “granted to religious clubs for students that are sponsored by outside organizations … on the same basis” that they are granted to other clubs for students.

Preska found D-180 §I.Q. so vague that it left board officials too much discretion in determining what was worship and what was not—echoing and citing U.S. Supreme Court and Second Circuit cases that have tried to parse the difference between instruction or moral teaching and the conduct of a mass and other, more formal rituals.

Today, Leval said, “There is not a scintilla of evidence that the board disapproves of religion or any religion, including religious worship services.”

“Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion,” he said.

Walker, in his dissent, said “shutting the door to religious worship services in such a setting when every other activity is permitted” strikes at the “core” of the Free Exercise Clause.

Walker said the policy disallowing worship services “after hours in public schools—limited public fora that are otherwise open to all—violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.”

Leval said the clause “does not entitle Bronx Household to a grant from the board of a subsidized place to hold religious services,” and the clause “has never been understood to require the government to finance a subject’s exercise of religion.”

Walker took issue with the majority’s notion that the use of the schools was a “subsidy,” and so did Jordan Lorence of Alliance for Defending Freedom, who argued the case for Bronx Household.

“We believe the Second Circuit panel’s decision is clearly out of step with Supreme Court precedent—to call this a subsidy is just factually incorrect,” Lorence said in an interview. “This is a general facility that is available to anybody in the community and it doesn’t violate the Establishment Clause for a city to hook up a synagogue to its water system or to put out a fire at a Buddhist temple. Those are general city services that are available to everyone at the same uniform rate and you can’t single out religious users and say that it’s a subsidy.”

Lorence said the plaintiffs will probably ask for rehearing en banc—where all of the active judges of the court, in addition to the three on the panel today, would hear the case.

Establishment Clause

The majority disagreed with Preska’s finding that the regulation should be subject to strict scrutiny—the highest form of review and one that often means a law or regulation is in trouble.

In her decision, Preska cited the U.S. Supreme Court’s ruling in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), where the court subjected to strict scrutiny a set of ordinances aimed at stopping practitioners of the Santeria religion from building a house of worship because the Hialeah City Council disapproved of the practice of animal sacrifice. Ostensibly evenhanded, the regulations included a number of exemptions, including for fishing and Kosher slaughter, and the Supreme Court struck down the regulations as motivated by animus toward Santeria.

But Leval said “there are crucial differences between the facts in Lukumi,” specifically that the “ordinances in Lukumi were intended to, and did suppress a religious ritual of a particular faith” whereas, here, “The board has no such motivation.”

Leval also made the point that it was impossible for the city to conform to its obligations under the Religion Clauses without focusing on religious subject matter.

“If the focus is not religious, the Religion Clauses have no application,” he said. “Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.”

The court also disagreed with Preska’s view that the regulation discriminates among religions.

“Regulation I.Q. treats all religions in the same fashion,” Leval said. “It leaves all religions free to engage in whatever practices they wish anywhere other than the board’s school facilities.”

Religious groups, he said, can still use school facilities to “teach religion, read from and discuss the Bible, advocate their religious views, sing hymns, say prayers and do all the things they are permitted” under the rule announced by the Supreme Court in another Second Circuit case, Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).

But to Lorence, the distinction between the activities permitted by Good News and actually allowing a religious worship service is nonexistent and unlikely to survive review, whether in an en banc rehearing or at the U.S. Supreme Court.

Leval went on to reject the lower court’s view that the Establishment Clause was violated because the act of determining whether there was a religious worship service would constitute “excessive entanglement with religion.”

Once again, Leval said the board can’t do its job without somehow inquiring as to religion.

“[T]he Constitution, far from forbidding government examination of arguably religious conduct, at times compels government officials to undertake such inspection in order to draw constitutionally necessary distinctions,” he said.

Here, Leval said, the board relied on the applicants’ own statement of their purpose for seeking a permit. Even if it were making its own determination of whether the conduct amounts to a religious service, it would not violate the Establishment Clause.

The Board of Education was represented by the Corporation Counsel’s office.

Oral argument on the appeal in Bronx Household, heard on Nov. 19, 2012, drew nine amicus briefs from a host of organizations (NYLJ Nov. 20, 2012).

The circuit has issued opinions in the dispute in 1997, 2003, 2007 (NYLJ, July 3, 2007) and 2011 (NYLJ, June 3, 2011) and, after Thursday’s opinion, has now reversed Preska four times. Following the last opinion in 2011, the judges of the Second Circuit denied rehearing en banc and the U.S. Supreme Court declined to grant certiorari (NYLJ, Dec. 6, 2011)