By Andrew Min ’15
Robert Hall and Jack Roberts aren’t rabble-rousing, fire-breathing preachers. They’re not the Christian jihad. And they’re definitely not demanding an establishment of a citywide religion.
In fact, the two pastors’ requests are simple. They’d like their congregation to be allowed to gather together to sing a few hymns, to pray, and to hear an evangelical message. However, thanks to supply and demand, New York City real estate is far too expensive for them to buy a building. So, they, like sixty other congregations scattered across the city, want to meet in rented space from New York City public schools.
Surprisingly, if this were all that the pastors desired, everything would be perfectly legal. New York City’s Department of Education allows group singing of religious songs, prayer meetings, and even, under a reform of the city’s Standard Operating Procedures Manual, “religious instruction” to occur by third parties in its public schools so long as instruction is after hours and the space is legitimately rented.
But, there’s one more request that New York City just can’t wrap its head around.
The pastors would like to refer to the above as a “worship service.” And, according to the city’s Department of Education, Mayor Michael Bloomberg, and the Second Circuit Court of Appeals, that’s just not ok.
The laws
New York City has, for some time, allowed private organizations “pertaining to the welfare of the community” to rent public schools for use when school is not in session, according to Alliance Defending Freedom attorney Jordan Lorence, who represents the Bronx Household of Faith. This includes groups like Alcoholics Anonymous, which many have criticized for having overly religious content. In 1997, the Columbia Law Review even suggested that mandatory AA rehabilitation would violate the Establishment Clause. But, that shouldn’t be a problem. According to the Second Circuit, “prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view” are all permissible. It’s just that a “worship service” is not.
This is, of course, an incredibly vague and confusing claim. The Second Circuit, for example, stated that there was a meaningful distinction between Boy Scout meetings and religious services—ironic, given continuing controversy over the supposed anti-secular nature of the Scouts—but somehow failed to give that distinction. As the dissenting opinion noted,
The majority’s formulation of “religious worship services,” including its shoe-horning of a supposed Establishment Clause problem, is conveniently tailored to support its arguments… [but] while a Catholic or Episcopal service would be shut out of the forum, a Quaker meeting service, Buddhist meditation service, or other religions worship convocation could be allowed because it would not follow a “prescribed order” or because the leader is not “ordained.”
And, as Park Slope Presbyterian Church senior pastor Matt Brown quipped, “I would love to know who at the Board of Education is theologically capable of making those decisions.”
It’s a good question. In fact, the city’s lawyers have admitted that they are not capable of making those decisions. In a recent oral argument before the Southern District of New York, city lawyer Jonathan Pines refused to give a definition of what, exactly, a “worship service” entailed. Instead, Pines stated that “[t]he definition is what the religious organization believes it to be.” In short: it’s a worship service if the organization calls it one.
This leads to a very obvious question: what would happen if the church decided to not call it a “worship service?” Apparently, from the city’s standpoint, everything would be fine – even though it would be, substantively, the exact same. Pines went on to state that the city would only deny the claim if the church itself called the activities “worship.” In fact, when Hall and Roberts were denied approval to worship, the local school officials hinted that they could get approval by simply not calling it a worship service. So, why didn’t they? Simple: they felt that, as Christians, it wouldn’t be ethical to call their conglomeration of “singing of Christian hymns and songs, prayer, fellow-ship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies” anything but a worship service. But, if they had disobeyed their consciences, changed the label, and left the substance, it seems that the city would have allowed it.
The implications are striking. Many of the churches meet in schools because they have nowhere else to go. Bronx Household of Faith, for example, has been raising money to build its own building for quite some time, but is still $500,000 short of the $2.3 million estimated price tag. Thus, it is quite likely that, barring divine intervention, many of these churches will simply close if the ruling is upheld.
The arguments
The litigation seemed, at first, fairly clear in light of recent two Supreme Court rulings. First, in Widmar v. Vincent, the Supreme Court ruled that state universities could allow their facilities to be used on an equal basis by religious organizations. Then, in Good News Club v. Milford Central School, it ruled that an evangelical Christian club for children was allowed to use New York public school facilities after hours (just like any other organization) for having “a fun time of singing songs, hearing a Bible lesson and memorizing scripture”.
However, the Second Circuit, in a 2-1 decision, concluded that excluding worship services was not viewpoint discrimination (since general “expressions of religious points of view or of religious devotion” were allowed). The reason for excluding worship services specifically was that, “When worship services are performed in a place… [t]he place has, at least for a time, become the church.” This is patently absurd. As the dissenting voice on the Second Circuit, Judge John M. Walker, Jr., noted, “[t]he same claim could have been made in Widmar and Good News Club, in which decidedly church-related activities were permitted to occur on a regular basis. Bronx Household’s services do not convert P.S. 15 into a church any more than the Boy Scout meetings convert it into a Boy Scout lodge.” This is exactly what Lorence argued; he noted that “[w]hen a labor union meets there, it doesn’t turn into a labor hall.”
The Circuit also worried about “having any school in this diverse city identified with one particular religious belief or practice” – as if susceptible school children would see a worship service in their public school on a Sunday and think that, somehow, the school now endorsed Christianity. Southern District judge Loretta Preska agreed, suggesting that onlookers “would find it difficult to see government endorsement.” Again, no child who walked by a Boy Scout meeting would somehow think that the school had converted itself into a Boy Scout lodge. And, it’s hard to see how allowing labor unions to meet in public schools after hours would be an endorsement of labor rights.
A close parallel to this is our own university’s policy. Princeton allows groups like Princeton Evangelical Fellowship, Manna Christian Fellowship, Princeton Faith & Action, Muslim Students Association, Princeton Hindu Satsangam, Princeton Chabad, and the Princeton University Society of Humanists to meet in university-owned Murray-Dodge Hall. But, when PEF uses Murray-Dodge on Friday nights for their worship meeting, no one walking by thinks that Princeton is somehow singling out the evangelical movement for favoritism. No one thinks that PEF transforms Murray-Dodge into a church.
But, even if this were true, the New York Daily News pointed out in a scathing editorial that “the danger of kids coming to that mistaken conclusion is no greater when a church or synagogue or mosque uses a school building after hours for a religious service than when it uses it for a prayer circle or revival dinner.” Walker’s opinion reinforces this, noting that in Good News Club, not only did the Court fail to disagree with the characterization of the club’s “evangelical service of worship,” but it also stated that “what matters is the substance of the Club’s activities.” We can debate the merits of allowing meetings that are functionally religious worship services in public schools. But, as long as these meetings are allowed to occur, it is ludicrous to ban groups that have ethical objections to calling their meetings anything but worship services.
And, in fact, banning the specific use of the word “worship” has troubling First Amendment implications, which is being revisited in a new wave of litigation. The Second Circuit ruled that, “because the rule… excludes for valid non-discriminatory reasons only a type of activity — the conduct of worship services — the rule does not constitute viewpoint discrimination.” However, excluding worship services may, in fact, provide discrimination against certain religions. In a recent oral argument before the Southern District, Lorence argued that some religions don’t include “worship” in their vocabulary at all. As a result, their organizations are allowed to freely use the space, while religions that do call their meetings “worship services” are banned.
The school officials
Interestingly, not every official in the city supports the recent court decisions that throw out Bronx Household of Faith and many others like it. On its face, the policy of renting the space makes a lot of sense in the age of school budget cuts, even if it is only for a nominal fee (something is always better than nothing, and school buildings have to be maintained whether or not people use them). But, the income is not even the main policy justification for renting to the churches. After all, to get approval, the churches have to perform activities “pertaining to the welfare of the community.” Most churches, operating under the Southern District’s injunction, do just that. According to Manhattan Bible Church Pastor Bill Devlin, the churches that meet in schools often provide community students with free school supplies, repair and maintain school property, and even provide free weekend lessons. As Devlin noted, “I have not heard one complaint from a New York public school principal that they want these people to get out.” This is especially ironic given the declaration of victory by the city’s lawyers in the wake of the Second Circuit’s ruling, claiming “a victory for the city’s schoolchildren and their families.”
Looking forward
The legal battle over the churches has been a long one. Lawyers for the Bronx Household of Faith have mounted three legal challenges. The first began in 1994 and ended in 1998 when the Supreme Court denied certiorari. In the wake of Good News Club, the church tried again and won an injunction. Sadly, it ended similarly in December 2011, when the Court again denied certiorari. The third has just begun; Lorence and his compatriots are, this time, bringing suit regarding freedom of religion (rather than the previously-utilized freedom of speech). Most recently, in June, Judge Preska issued a permanent injunction protecting the churches. But, the work is far from over. New York officials are expected to appeal again, and the Second Circuit has never been kind to the churches.
But if, this time, the Second Circuit overturns the injunction and the churches make it past certiorari to the Supreme Court, they are hopeful of victory: Clarence Thomas, Antonin Scalia, Anthony Kennedy, and Steven Breyer all voted in favor of the Good News Club, as did the predecessors of John Roberts and Samuel Alito. The only remaining dissenter from that case is Ruth Bader Ginsburg.
This past year, advocates also began trying a new course of action: the legislature. Last session, 36 New York City councilmen cosponsors (out of 51 total councilmen) supported a resolution proposed by Bronx Democrat Fernando Cabrera (with support from progressives like Public Advocate Bill de Blasio and Comptroller John Liu) in the city council calling on the state legislature to allow churches access to the school property. Ultimately, Council Speaker Christine Quinn blocked the bill. Cabrera was furious, since Quinn had promised both him and the New York Daily News that the bill would come to the floor for a vote. But, Quinn has promised to eventually let the resolution come to the floor – the tide may yet turn this coming legislative year.
However, for Pastor Devlin, the real question isn’t about the legality of the ban; it’s about the ban itself, passed down by New York City central officials. “Principals say they want to be connected to the social community. Many in the Bronx are from single-parent families, who are poor and live in housing projects, and kids don’t have money for a book-pack, or notebooks and pens and pencils. But then a religious house of worship, be it Buddhist, Jewish, Muslim, Christian, will come along and provide it. Why wouldn’t you love them?”
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