NEW YORK—Continuing the legal roller coaster for New York churches with few rental options, the 2nd U.S. Circuit Court of Appeals for the second time reversed a lower court's ruling allowing congregations to meet in public schools. Local churches following the ruling have said they will continue to meet at public schools until the city tells them to stop, in the hopes that new Mayor Bill de Blasio will change the city policy himself as he promised to do during his campaign. De Blasio indicated his continuing support on Thursday even though he hadn't read the ruling.
“I stand by my belief that a faith organization playing by the same rules as any community nonprofit deserves access,” he said. “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. But we’ll assess the court decision and we’ll look from there.”
The injunction against the city policy expires in two weeks.
The case has been going on for decades, but broadened when the city Board of Education instituted a policy forbidding churches from renting public schools for worship services. Anyone else may rent the schools. The Bronx Household of Faith sued, saying the policy unfairly targeted religious exercise. A district court granted a preliminary injunction against the policy, but the 2nd Circuit reversed the injunction, kicking churches out of schools. Then the Bronx church filed suit again on different constitutional grounds. The district court granted churches a full injunction, allowing them to rent the schools once more. But today, after hearing arguments in 2012, the 2nd Circuit again ruled against the churches, 2-1, upholding the city policy.
The 2nd Circuit in its ruling today said the city was not required to “finance a subject's exercise of religion.” The fee all organizations of any stripe pay to use the schools is below market value.
Circuit Judge John Walker dissented from this interpretation. “Allowing an entity to use public school space open to all others on equal terms is hardly the financing of that entity,” Walker wrote in his dissent. “However, shutting the door to religious worship services in such a setting when every other activity is permitted strikes at the [Free Exercise Clause's] core.” Walker said the policy “plainly discriminates against religious belief,” and he would issue a permanent injunction against it.
The attorneys for the Bronx church have not decided yet whether they will appeal to the full 2nd Circuit, seek U.S. Supreme Court review, or see if the city resolves the policy itself. “We are most likely going to press ahead,” said Jordan Lorence, an attorney with Alliance Defending Freedom who is representing the church. “The political end—that's something we can't depend on.”
De Blasio had promised repeatedly in his campaign that the city would either drop its appeal of the Bronx case or change the city policy. Now that the city won its case (argued in 2012, when Mayor Michael Bloomberg was still in office), de Blasio could go ahead and change the policy to allow the churches to continue renting space. The circuit court merely upheld the city policy. If the policy changed, its ruling would be moot.
“Now is [de Blasio's] wonderful and golden opportunity to take a stand for the houses of worship and to change the discriminatory, draconian Department of Education policy,” Pastor Bill Devlin said in a statement. Devlin has headed up a group of pastors protesting the policy. “That is our hope and our prayer that Mayor de Blasio will follow through on his promise.”
In a 2001 decision, Good News Club v. Milford Central School, the Supreme Court ruled that a public school's policy against a Christian club meeting on campus after hours counted as viewpoint discrimination. The district court had vacated New York's policy based on that ruling. In an attempt to make its ruling fit that Supreme Court precedent, the 2nd Circuit said that religions may rent public schools to “teach religion, read from and discuss the Bible, advocate their religious views, sing hymns, say prayers …” but may not have “religious worship services." (In one instance, the city board approved a Bible study, but not a prayer meeting.)
“Nothing in this record remotely supports a finding that the board disapproves of religious worship services,” the court said. “The board's only motivation is to act consistently with its establishment concerns.”
Walker said the ban made little sense as a way to avoid establishment concerns because it bans “worship services but not worship in any of its manifestations.”
Walker concluded that the case is “ripe for Supreme Court review.”
The specific church at issue in this case, Bronx Household of Faith, meets in a neighborhood with one of the highest homicide rates in the city and has many ministries to the neighborhood, including a rehabilitation and discipleship program and job training. Recently the church has been constructing its own small building across the street from the public school where it was meeting so it could continue ministering without moving in and out continually. The church hopes to continue hosting events at the public school for the community. Few neighborhoods except the poorest in New York have real estate that is attainable for small churches.
“The ministry of the gospel and engagement with our community will continue regardless of the outcome in the courts,” Jack Roberts, one of the pastors at Bronx Household of Faith, told me in an email. Roberts has lived in the Bronx for four decades. “We were involved in the neighborhood before this case began in 1995 and will be until the Lord changes our mission.”