Last December, the U.S. Supreme Court denied review in a case that had been moving through the federal courts in New York for 16 years: Bronx Household of Faith v. New York Bd. of Education. The denial was appropriate, because the U.S. Court of Appeals for the Second Circuit had decided the case correctly. You would not know that, however, from all the misstatements of the law that have been circulating on talk radio, or from the reactions of New York City Council members and the New York state legislature.
Bronx Household of Faith posed the question whether a church can make a public school its house of worship. The New York Board of Education and the Second Circuit said it could not. The reasoning was straightforward: the separation of church and state requires that even if public schools can permit extracurricular clubs that are religious, they may not and need not operate as houses of worship.
A variety of religious groups has protested ever since, arguing that the decision made them “homeless,” and that they somehow have a right to house their worship services in public schools. As a three-judge panel of the Second Circuit held, 2-1, the groups are wrong; they have no such right.
The Facts of the Case
The parties to the case stipulated to the relevant facts: (1) The New York City Board of Education has a rule that prohibits the use of public schools for religious worship services. However, the Board allowed religious clubs and groups to use public schools, just as the Boy Scouts and other extracurricular clubs did, as long as the clubs’ and groups’ activities were open to the general public; (2) the Bronx Household of Faith has used the Anne Cross Mersereau Middle School (M.S. 206B) for weekly Christian worship services, followed by a “fellowship meal”; (3) the school district does not charge rent or impose a fee for utilities (e.g., electricity, gas, or air conditioning) upon any extracurricular clubs, religious or otherwise; (4) Bronx Household of Faith dominates the building with its religious use of the premises on Sundays; and (5) Bronx Household of Faith excludes from its services and post-service meals anyone who is not baptized, is excommunicated, and/or advocates the Islamic religion.
The Decision of the U.S. Court of Appeals for the Second Circuit
If the Establishment Clause stands for anything, it must stand for the notion that it is not suitable for public schools to serve as churches. The Second Circuit’s decision, written by Judge Pierre N. Leval, surveys all the relevant cases, and quite reasonably and persuasively concludes that public school districts will likely, if not inevitably, commit Establishment Clause violations if they permit their schools to be used as houses of worship.
That is, in part, because the intensity of the religious worship use undoubtedly leads students to believe that the church and its views are being endorsed by the school, and thus leads to likely confusion regarding the connection between the religious group and the public school. But it is not just generic religion that observers would think is being endorsed and embraced. Bronx Household of Faith is not open to the general public. Its exclusionary practices, while fine for a religious organization occupying its own rented or purchased space, are intolerable in a public school.
Similarly, openness was an important element of the message in the Supreme Court’s decision in Christian Legal Society v. Martinez, which I discussed in this column. There, Hastings Law School was permitted not to provide school funds to the Christian Legal Society so long as it discriminated against homosexuals, because of the school’s “all-comers” policy.
Why the Second Circuit’s Decision Was the Right One
To summarize, religious groups are not being prevented from using the New York public schools. The line drawn by the New York schools and by the Second Circuit is more than reasonable: public schools are not appropriate locations for houses of worship, though extracurricular activities involving religion are not barred.
Judge John M. Walker, Jr., dissented, but his reasoning was not persuasive, because in this case, there was no evidence of animus by the school district toward any religious organization, including the Bronx Household of Faith, and because there is a commonsense, meaningful distinction between student clubs that are open to all comers and houses of worship where only believers may attend and participate.
Sadly, religious lobbyists with no concern for the separation of church and state have taken on the mantle of being “homeless,” as they lobbied the City Council and the state legislature. Their core argument seems to be that they are entitled to have the public schools provide their worship facilities, for no cost, and with no strings attached.
If anyone doubts the power of religious organizations to get their message heard by politicians, here is another example. Various members of New York’s City Council and the state legislature, spurred on by talk radio hosts who either don’t know the facts or apparently don’t care, have jumped on their bandwagon. They are now backing silly legislation that would add the word “services” to the list of religious activities that are permitted in public schools. This is a seriously misguided movement—for a host of reasons.
Why the Movement to Allow Exclusive Religious Groups to Use Public School Facilities Is Deeply Misguided
First, as noted above, the Second Circuit has ruled that it is unconstitutional for New York public schools to offer space to exclusive religious groups for worship services. Moreover, the U.S. Supreme Court has declined to intervene. Of course, I’m familiar with the principle that politicians don’t always respect the courts. But on this issue, I believe that they know that they are wrong on the law. Thus, they need to seriously re-think the oath they took—the oath to uphold the Constitution that is part of every public servant’s first act while in office.
Second, and more importantly from the taxpayers’ perspective, such a law is an invitation to federal litigation, which could last years and cost millions. In this economy, why would any elected official seriously consider enacting a law that is so obviously going to be heavily litigated, only to ultimately be held unconstitutional?
Third, many of the officials’ constituents are likely to be outraged about what is happening here—at least, if they can wade through all the misleading rhetoric: These city and state politicians are endorsing the use of public schools by groups that discriminate on the basis of religion and religious status, like the Bronx Household of Faith. The suggested bill would open the door for white supremacist, misogynist, and anti-homosexual religious organizations to take up weekly residence in the public schools.
Fourth, concerned New Yorkers need to understand that such a law is biased toward Christians, because the buildings are not going to be available on Fridays and Saturdays, but only on Sundays. So this is a Christian-friendly law, and last I checked, New York representatives’ constituencies are decidedly more diverse than that.
Fifth, and finally, the phenomenon of transforming public schools into houses of worship is in part a result of what has been dubbed the “church planting” movement. To put it rather simplistically, but not inaccurately, some evangelical churches have chosen not to invest in buildings, because they want to fill public schools with their religion. Their triumphalism does not make them correct.
Only the Constitution and levelheaded politicians can truly protect the necessary separation of church and state that is one of the miracles of American constitutionalism. Here, it is fortunate that the Second Circuit reached the correct result, and that the U.S. Supreme Court declined review. Both courts acted wisely, and New York’s elected representatives would do well to think twice before attempting to reverse the courts on this constitutional issue.