MANHATTAN (CN) – A temporary restraining order preventing New York City from barring a church from holding Sunday services in a Bronx school cannot be used to justify religious services in other schools, the 2nd Circuit ruled.
Bronx Household of Faith and its leaders Robert Hall and Jack Roberts have fought for 16 years to continue meeting Sundays at P.S. 15, and won the sympathy of the Southern District of New York’s Chief Judge Loretta Preska.
Preska issued a preliminary injunction in 2007 preventing the city from enforcing a regulation that “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”
The 2nd Circuit vacated that injunction in June 2011, in a 2-to-1 decision that the majority based on the Establishment Clause.
“When worship services are performed in a place, the nature of the site changes,” U.S. Circuit Judge Pierre Leval wrote for the majority. “The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church.” Bronx Household of Faith appeared to have lost its drawn-out legal battle in December, when the U.S. Supreme Court declined to hear its appeal of the 2nd Circuit ruling.
But Preska revived the case again last Thursday, and granted the church a new temporary restraining order.
A day later, the 2nd Circuit narrowed that order to state that the city could continue to prevent other schools from renting space to other religious institutions.
City officials applauded the appellate court’s decision.
“We are pleased that the circuit has narrowed the TRO to the Bronx Household only,” city attorney Jane Gordon said in a statement. “It has unanimously ruled that the Department of Education can administer its permit policy to all other applicants. The Department of Education is legitimately concerned about public schools being affiliated with a particularly religious belief or practice, and will continue to enforce its policy, which the 2nd Circuit previously upheld as constitutional. The Department will also continue to defend this latest round of litigation, which is lacking in merit.”
Preska is expected to issue an order on whether to strengthen the TRO to a preliminary injunction before Feb. 27.
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