Just before Christmas in 2001, city authorities ran out of patience and sought to evict the sidewalk tenants -- in the middle of the night. Lawyers for the church went to court. They want to balance God and mammon. The city wants to throw the bums out, but in a nice way. Finally, four months ago the U.S. Court of Appeals for the 2nd Circuit entered a permanent injunction directing the city to leave the mendicants alone. The freeloaders are still there, and the city still wants them moved to a much safer, more sanitary, obviously healthier and practically invisible location somewhere else.

In its parting per curiam shot, the circuit court affirmed an injunction against the city. The order will prevent the cops from "dispersing or arresting any person who shall be sleeping or otherwise lawfully occupying" church property. Police of course may arrest lawbreakers on church premises. Church wardens may evict unwanted guests. In times of ice and snow, even resident vagrants may be forcibly removed to a safer, warmer, more distant accommodation.

The Circuit Court was not impressed by the city's argument that the church habitat has become a public nuisance. The city has provided "no medical evidence that the conduct endangers or injures anyone's health." Indeed, the city provided no medical evidence that the homeless people who spent the night on church property constituted a health risk to themselves or to the public at large."

To the church, its hospitality is a protected religious activity. To the city, the church's practice of having homeless people sleep outdoors, exposed to the elements, without toilet facilities and personal security, "cannot constitute religious ministry in any meaningful sense." To describe the nightly encampments in terms of "compassion" or "hospitality" is "simply an abuse of English usage."

I come down in the middle of this case. The Fifth Avenue church may have a duty to the homeless. The people of New York have a few rights as well.