ADF considering next steps after 2nd Cir. rules against weekend worship services at NYC public schools

The following quote may be attributed to Alliance Defending Freedom Senior Counsel Jordan Lorence regarding a 2–1 decision Thursday by the U.S. Court of Appeals for the 2nd Circuit that bars weekend worship services at New York City’s public schools:

“The First Amendment prohibits New York City from singling out worship services and excluding them from empty school buildings. The reason is because the buildings are generally available to all individuals and community groups for any activity ‘pertaining to the welfare of the community.’ There is no subsidy of churches here. Churches and religious groups pay the same uniform rates that everyone else does to use the schools. We are seriously considering an appeal in this case, either to all of the judges on the 2nd Circuit or to the U.S. Supreme Court.”

Select excerpts from Circuit Judge John M. Walker, Jr.’s dissent accompanying the court’s decision in Bronx Household of Faith v. Board of Education of the City of New York:

p. 1: “The majority states that the ‘Free Exercise Clause…has never been understood to require government to finance a subject’s exercise of religion….’ Allowing an entity to use public school space open to all others on equal terms is hardly the financing of that entity. However, shutting the door to religious worship services in such a setting when every other activity is permitted strikes at the Clause’s core.”

p. 5: “Concluding that Reg. I.Q. [the Department of Education’s policy] is neither neutral nor generally applicable in its treatment of religion is an easy call: the Department of Education states that its purpose in creating the policy was to ‘avoid both the fact and appearance of government endorsement of religion presented when plaintiffs and other congregations use public schools to engage in worship services….’ The Department thus effectively concedes that its object ‘is to infringe upon or restrict practices because of their religious motivation.””

p. 7: “Reg. I.Q. is not a government subsidy: the Department of Education charges the same rate to all organizations using its facilities.”

pp. 8-9: “[T]he Board’s interest in enforcing Reg. I.Q. to avoid an Establishment Clause violation is not compelling because it does not violate the Establishment Clause to allow Bronx Household to worship in public school facilities made broadly available to the public on neutral terms…. The Supreme Court has repeatedly ‘rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design….’”

p. 10: “Of the fifty largest school districts in the United States, New York City alone entirely excludes religious worship from its facilities…. It is striking that none of these other school districts appear to have the slightest concern about violating the Establishment Clause, nor have any of their community use policies been found to violate the Clause.”

pp. 11-12: “Reg. I.Q. permits extensive religious conduct in public schools, such as a Quaker meeting service or a Buddhist meditation service, so long as it is not following a prescribed order or led by an ordained official…. Indeed, Reg I.Q. ‘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….’ A regulation that bans worship services but not worship in any of its manifestations is thus not sufficiently tailored to accomplish the interest that the School Board has advanced, namely, avoiding the risk of being perceived as establishing religion.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.