The U.S. Second Circuit Court of Appeals again upheld Thursday (April 3) a policy that bars worship services in the city's schools, saying the rule does not violate the First Amendment protection of religious liberty. The latest opinion in a nearly 20-year court case enables, though it does not require, the city's Board of Education to evict maybe as many as 80 congregations that use school facilities for corporate worship.
Bronx Household of Faith, the church involved in the lawsuit, is considering whether to appeal to the U.S. Supreme Court or beyond the three-judge panel that made the decision to the full appeals court, its lawyer said.
The heads of the Southern Baptist Convention's religious freedom and North American missions entities registered their disagreement with the ruling.
"The court system's capricious and bizarre mistreatment of churches is an atrocity," Russell D. Moore, president of the Ethics & Religious Liberty Commission (ERLC), said. "Church plants, operating within the rules and doing nothing to disrupt others, have been tossed about by the courts on the question simply of whether they can rent facilities in which to worship."
Kevin Ezell, president of the North American Mission Board (NAMB), said, "This decision will have a negative impact on all faith groups that often make use of public spaces. These groups pay to rent the space. We are not asking anything for free. I believe the Second Circuit Court of Appeals and New York City government officials have made a poor decision that ultimately conflicts with the U.S. Constitution and will be overturned.
"In the meantime, we will do everything we can to be sure New York City residents will be able to worship freely near their homes," Ezell said in a written statement.
NAMB has no record of Southern Baptist churches now meeting in New York City schools, but seven reportedly were using city school facilities as recently as 2012. About 80 congregations regularly use school buildings for worship services, according to a court filing by the city in 2012, The New York Times reported.
The Board of Education's policy prohibits "religious worship services" or using a school building as a "house of worship" outside normal hours, even though it permits individuals and other organizations to use the facilities for activities. The rule, however, allows religious groups to use schools "for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view," according to the Second Circuit Court.
In a 2-1 decision, the Second Circuit panel ruled the policy infringed upon neither of the First Amendment's religion clauses -– the right to exercise religion freely and the ban on government establishment of religion.
"There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services," judge Pierre Leval wrote for the majority. "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."
In dissent, judge John Walker said it was an "easy call" to conclude the board's policy is not neutral. He rejected the majority's opinion that the government would be subsidizing religion if it permitted worship services in its school. The board "charges the same rate to all organizations using its facilities," he said.
"Of the fifty largest school districts in the United States, New York City alone entirely excludes religious worship from its facilities," Walker wrote, adding, "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."
Jordan Lorence, lawyer for Bronx Household of Faith and senior counsel for the Alliance Defending Freedom (ADF), said in a written statement, "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.'"
The New York Civil Liberties Union (NYCLU) welcomed the Second Circuit ruling as a "victory for religious freedom."
"When a school is converted to a church in this way, it sends a powerful message to students and the community at large that the government favors that particular church," NYCLU Executive Director Donna Lieberman said in a written statement.
New York Mayor Bill de Blasio continued to express support for the churches' right to use the schools.
"I stand by my belief that a faith organization playing by the same rules as any community nonprofit deserves access," he told reporters April 3, according to The Times. "You know, they have to go through the same application process, wait their turn for space, pay the same rent. But I think they deserve access. They play a very, very important role in terms of providing social services and other important community services, and I think they deserve that right."
Congregations meeting in New York City schools have fed the poor, helped rehabilitate drug addicts, worked toward the restoration of families and provided for the disabled, according to ADF. In addition, they have painted the interiors of inner-city schools; donated computers, musical instruments and air conditioners; and provided effective after-school programs, ADF reported.
About two-thirds of Americans believe public schools should rent their space to churches, and more than three-fourths think the presence of a church is positive in a community, Southern Baptist researcher Ed Stetzer wrote in Christianity Today in 2012. Stetzer is vice president for research and ministry development at LifeWay Christian Resources.
The Second Circuit Court's ruling reversed federal judge Loretta Preska's June 2012 opinion that the school policy violated both the free exercise of religion and establishment clauses of the First Amendment.
An earlier round of decisions that went against NYC churches was based on an examination of the free speech and establishment clauses, not the free exercise clause, which was considered in the latest case. That earlier round of cases ended in 2011, when the Second Circuit Court, which has now considered the policy six times, upheld the school rule and the Supreme Court declined to get involved.
The Second Circuit's 2011 decision prompted a crisis for dozens of churches. Some moved their meetings to other facilities, but Preska blocked enforcement of the ruling, enabling others to continue using school space.
After Preska's 2012 opinion, the ERLC signed onto a brief by the Christian Legal Society urging the Second Circuit to agree with her ruling in support of the churches.
The case is Bronx Household of Faith v. Board of Education of the City of New York.
Tom Strode is Baptist Press' Washington Bureau chief. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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