Bad News for Churches and for Religious Freedom: City Can Block Churches from Using Schools, Appeals Court Rules

According to a federal appeals court, New York City can keep churches from using school facilities for worship services, even during times when the schools are empty. In “Court Lets City Restrict Church Use of Schools,” the New York Times reports:

Deciding 2 to 1, a panel of the United States Court of Appeals for the Second Circuit said the city had “a strong basis to believe” that allowing the religious services to be conducted in schools could be seen as the kind of endorsement of religion that violated the First Amendment’s establishment clause.

“When worship services are performed in a place,” Judge Pierre N. Leval wrote for the majority, “the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity.”

“The place has, at least for a time, become the church,” he wrote, adding that the city’s policy imposed “no restraint on the free expression of any point of view.” Rather, it applied only to “a certain type of activity — the conduct of worship services — and not to the free expression of religious views associated with it.”

Lawyers for New York City were pleased with this result.

One city lawyer, Jane L. Gordon, called Thursday’s ruling “a victory for the city’s schoolchildren and their families.” Ms. Gordon added that the Education Department was “quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”

But, you might ask, aren’t there many different religious groups in such a diverse city? Doesn’t the fact that any of these groups have access to school facilities mean that there is no such identification? No, not according to Judge Pierre N. Leval, who wrote the decision for the 2-1 majority:

Judge Leval wrote that “the fact that New York City’s school facilities are more available on Sundays than any other day of the week means that there is a de facto bias in favor of Christian groups who want to use the schools for worship services.” His opinion was joined by Judge Guido Calabresi.

St. Patrick's Cathedral in New York City. This congregation doesn't have to meet in a school.

This is a most curious argument. I’m no legal scholar, but it seems to be a desperate attempt to find a reason to exclude Christian churches from using schools. I hope and expect that this will be appealed to the higher authorities (no, not God, but the full appeals court or the U.S. Supreme Court). If this decision by the appeals court is allowed to stand, it sets a distressing legal precedent that will hurt both religious freedom and the public schools.

That’s right, it will hurt the public schools. If churches are excluded from using schools for worship services, this would do substantial damage to public education because churches pay for the use of the schools (at least in the cases I’m familiar with). In a time when money for schools is drying up, it would be unfortunate if religious rent money were no longer available for schools.

Before I finish, let me make three general comments, two cultural and one theological.

First, what we’re seeing in New York is just one more in a long series of legal and cultural attacks, not just on the church, but also on the free exercise of religion in general. Thus, we should not be surprised by the decision of the appeals court. Also, this is not the first time that the state of New York has been involved in a case like this. Last time, its attempt to limit religious freedom was struck down by the Supreme Court. (See Good News Club v. Milford Central School.)

Second, apart from the legal issues in this particular case, we need a broad conversation about the appropriate place of religion in the public arena. I happen to believe that our culture is enriched as different religious traditions express their freedom. I think our society is enriched, for example, if a school is made available to a Hindu or Muslim group during off hours.

Third, from a theological point of view, Judge Leval is way off base. He writes: “When worship services are performed in a place, . . . the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The place has, at least for a time, become the church.” Well, that might reflect his secular understanding of church, but it completely misses the Christian understanding of church, which has nothing to do with the place in which Christians meet, and everything to do with the Christians who are meeting in the place.

Thus, I find myself disagreeing, not only with Judge Leval, but also with the city lawyer, Jane L. Gordon. As you recall, she called the legal ruling “a victory for the city’s schoolchildren and their families.” She added that the Education Department was “quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.” Well, the legal ruling was certainly not a victory for the schoolchildren and families who are part of churches that meet in schools. Apparently, however, these people don’t count in Ms. Gordon’s calculation of victory. Moreover, I would argue that, in the end, this legal ruling actually inhibits the diversity that Ms. Gordon prizes because it effectively makes churches and other religious groups be less present in the public square. So, I would argue that the court’s decision is a loss both for the city’s schoolchildren and their families, and for culture diversity, not to mention the free expression of religion.

  • KWK

     I think the Good News decision is an apt analogy, as that was the ruling that prevented viewpoint discrimination: if public institutions allow outside groups to use their facilities, they could not exclude certain of those groups solely because they were religiously-based.

    I don’t see how the New York decision will withstand the Supreme Court’s attention, especially since there is already obvious precedent.

  • Anonymous

    I hope you’re right. Thanks for the comment, KWK. Nice to hear from you!

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  • Evan

    Mark,
    There is so much that can be said here. Let me mention just a couple.
    The definition of “neutrality” is not that one side is never allowed to voice its views, but that is how the elites in the Law, the media and the clergy view Christian religious speech. In order to be impartial, God must never be mentioned.

    The very first right guaranteed in the Bill of Rights is Free Exercise of Religion. The ploy here is to claim that you are as free as you want to express your religious views… but ONLY WITHIN THE CONFINES OF YOUR CHURCH OR YOUR HOME. Religious speech in public is forbidden, as it may offend someone. And Free Speech never means “religious speech.” We have come to a strange situation where to the elites, the F bomb is a cherished freedom, but you may not mention the name of Jesus in public. Federal judges dearly love to threaten high school valedictorians with jail if they mention God or Jesus. Fortunately, just today, the Fifth Circuit overturned such a stay issued by a federal judge concerning a high schooler’s planned remarks here in Texas. The Equal Access law passed in the ’90s states that the government cannot discriminate against religious groups regarding the use of public properties; if any groups are allowed to use them, then religious groups must also be allowed. This should be a slam dunk, but elite judges routinely ignore statutes and the plain meaning of the Constitution. It may come down to whether or not Justice Kennedy feels “European” when the case is heard.

    All I can note is that when the Constitution is twisted by the elites so violently from its authors’ clear intentions, is it any wonder that the same thing happens to the Scriptures?

  • Anonymous

    Good point, Evan. Thanks.

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