(CN) – New York City schools may prohibit religious groups from conducting worship services in their facilities after school hours and on weekends, the 2nd Circuit ruled.
This ruling comes 18 years after Bronx Household of Faith, an evangelical Christian church, sued the New York City Department of Education for refusing to let it conduct worship services in school property, on weekends, after hours and rent free.
In refusing the church, the department cited a rule that makes school facilities available to religious clubs for students, but not to churches that would use the school “as a house of worship.”
The 2nd Circuit ruled, 2-1, in 2011 that the rule was a valid exclusion based on the department’s belief that conducting religious services in a school building might seem like an endorsement of that religious viewpoint in violation of the establishment clause.
Since the Manhattan-based federal appeals court did not then rule, however, on whether the regulation violated the free exercise of religion, the church reasserted a challenge against enforcement of the rule.
A federal judge then struck down the regulation in 2012, sending the case before the appellate panel once again.
On Thursday, the again-divided 2nd Circuit found that the constitutional right to free exercise of religion “does not entitle Bronx Household to a grant from the Board of a subsidized place to hold religious worship services.”
Although the church’s congregants cannot pay for a large enough space to accommodate the entire congregation, “the free exercise clause has never been understood to require government to finance a subject’s exercise of religion,” Judge Pierre Leval wrote for the majority.
The ruling emphasizes how the board’s decision by no means suppresses worship services in the city, and does not target religion by making it the subject of the rule.
“Rules and policies designed to keep a governmental entity in conformity with its obligations under the Religion Clauses must of necessity focus on religious subject matter,” Leval wrote. “If the focus is not religious, the religion clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.”
In applying the rule based on an applicant’s own description of its proposed activities as worship services, the board’s policy also avoids government entanglement with deciding what may constitute as religious worship.
Just as in 2011, Judge John Walker dissented from the majority.
“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,” his 37-page opinion states.
Walker said the board’s regulation “plainly discriminates against religious belief and cannot be justified by a compelling government interest.”
The New York Civil Liberties Union, which filed an amicus brief in support of the Department of Education, called the court’s ruling “a victory for religious freedom.”
“The Court of Appeals should be applauded for doing the right thing, and the Department of Education and the new administration should stand strong and prevent our public schools from being converted into churches,” Donna Lieberman, executive director of the nonprofit, said in a statement.
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