The order by District Judge Loretta Preska made clear that all churches -- and not just the named plaintiff, Bronx Household of Faith -- will be able to meet in public schools. Unlike her previous order that was to last only 10 days, Preska's latest decision contains no expiration date, meaning it will remain in effect while the case proceeds -- or until a higher court decides differently. City attorneys said they would appeal.
Congregations are attempting to overturn a New York City Department of Education rule that prevents school buildings from being used for "religious worship services."
Preska's decision prevents the city from enforcing the rule against Bronx Household of Faith or "any similarly-situated individual or entity."
"If a rule is unconstitutional, it is unconstitutional as to all similarly-situated parties," Preska wrote.
Preska no doubt had in mind the U.S. Second Circuit Court of Appeals which, after she issued her temporary 10-day order, ruled that it applied only to Bronx Household of Faith. The Second Circuit's decision on Friday, Feb. 17 prevented dozens of churches from meeting in their normal location last Sunday. Churches now are wondering if they'll have a repeat of the previous weekend -- high hopes that are quickly dashed.
Represented by the Alliance Defense Fund, Bronx Household of Faith contends the city's rule amounts to hostility toward churches and a violation of the Free Exercise Clause. An earlier round of decisions that went against NYC churches were based on an examination of the Free Speech and Establishment Clauses, not the Free Exercise Clause. That earlier round of cases ended in 2011 when the U.S. Supreme Court declined to get involved. It appeared churches had reached the end of the legal road until Preska sided with the congregations.
"The city can't single out religious expression and treat it worse than the expression of everybody else," said ADF senior counsel Jordan Lorence. "The court's order allows churches and other religious groups to meet in empty school buildings on weekends just as non-religious groups do while the lawsuit proceeds. The city's view of the First Amendment is wrong, and we intend to continue to demonstrate that in court."
Preska ruled that Bronx Household of Faith likely will succeed in the case and that it "will suffer irreparable harm in the absence of an injunction."
Read the decision online at http://www.adfmedia.org/files/BronxPI.pdf
Michael Foust is associate editor of Baptist Press.
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