High Court Declines Case on Weekend Worship Services at School

By Mark Walsh — December 05, 2011 3 min read
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The U.S. Supreme Court declined to hear the appeal of a small church that has battled the New York City school system for 17 years over the right to use a school facility for weekend worship services.

A federal appeals court in June upheld the school system’s rule that bars the use of public schools for such religious events, holding that the rule does not violate the First Amendment rights of a Christian church known as the Bronx Household of Faith.

The justices on Monday declined to hear the church’s appeal in Bronx Household of Faith v. Board of Education of the City of New York (Case No. 11-386).

The controversy between the congregation and the school district has been raging since 1994. In the first lawsuit, both a federal district court and the U.S. Court of Appeals for the 2nd Circuit upheld the school system’s refusal to rent a school to the church, and the U.S. Supreme Court declined to review the case in 1998.

Later, the church was prompted to try again after the Supreme Court’s 2001 ruling in Good News Club v. Milford Central School. In Good News, the high court held that it was unconstitutional for a school district to bar a private Christian group from after-school use of its facilities when it opened them to a wide range of other community uses.

In 2002, Bronx Household of Faith was granted an injunction allowing it to use Public School 15 for its Sunday worship services, and it has been doing so since then while its second legal challenge has proceeded on the merits. The school system now defends its efforts to deny access based on a 2007 rule that prohibits using school buildings for worship services.

A federal district court granted a permanent injunction allowing the church to conduct its services. But in a 2-1 ruling on June 2, a 2nd Circuit panel ruled for the school system. The majority said the school system had valid, non-viewpoint discriminatory reasons for barring worship services even when it allowed certain other religious activities in its facilities.

“The board could ... reasonably worry that the regular, long-term conversion of schools into state-subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement,” said the 2nd Circuit majority. “A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church. ... Bronx Household and the other churches that have been allowed access under the injunction tend to dominate the schools on the day they use them.”

Writing in dissent, U.S. Circuit Judge John M. Walker Jr. said the school system’s rule against allowing religious worship services “is impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest.”

Walker said the majority’s ruling could not be squared with Supreme Court decisions on religious viewpoint discrimination, and he said the case presented “important doctrinal considerations worthy of the Supreme Court’s attention.”

The Bronx Household of Faith’s appeal to the Supreme Court was backed by religious freedom groups such as the Alliance Defense Fund and the Becket Fund for Religious Liberty. The church’s Sunday services are attended by 85-100 people each week, court papers say.

The church noted in its appeal that a number of groups that are permitted to use New York City school buildings engage in “expressive” uses that are similar to religion, including rituals, recitations, moral teachings, songs, and meals. The groups include the Boy Scouts, Girl Scouts, adult education programs, and a Hebrew Institute’s youth basketball program, court papers say.

Because of the 2nd Circuit court’s ruling, the appeal said, “the church now faces expulsion from the forum it has used for nine years on equal terms with other community groups.”

The Supreme Court’s refusal to take up the appeal, with Justice Sonia Sotomayor not participating in the action, was not a ruling on the merits. But it means the injunction allowing the church to use the school facility will soon be withdrawn and the church will be looking for a new location for its worship services.

A version of this news article first appeared in The School Law Blog.