(CN) – A Christian church lost their final challenge to a New York City ban that bars religious groups from using public school facilities for after-hours worship services, with the Supreme Court refusing to take another look at the 17-year-old dispute on Monday.
The 2nd Circuit had its fourth and final say on the matter in June, vacating a permanent injunction that would have let Bronx Household of Faith resume Sunday services at an elementary school in the Bronx.
The church and two of its pastors, Robert Hall and Jack Roberts, filed suit in 1994 when the New York City Board of Education rejected its application under a section of the board’s Standard Operating Procedure Manual that prohibits the use of school property for “religious services or religious instruction.”
Bronx Household of Faith explained in its application that its services would include singing, prayer, Biblical preaching and a “fellowship meal,” during which attendees “share one another’s joys and sorrows.”
In the original lawsuit, the church claimed viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. Though the courts tossed that case, the church won a preliminary injunction to hold its services at P.S. 15 after the Supreme Court’s 2001 decision in Good News Club v. Milford Central School. That case involved a private Christian organization for children that had been unconstitutionally barred from using the facilities of an upstate New York public school district to sing songs, read Bible lessons, memorize scripture and pray.
In an effort to distance itself from Milford’s unconstitutional regulations, the New York City school board revised its Standard Operating Procedure Manual. The new standard established in section 5.11 prohibited use of school property for “religious worship services, or otherwise using a school as a house of worship.”
Once the board had adopted and published its new standard in 2007, it rejected Bronx Household of Faith on that basis. A federal judge favored the church on summary judgment and blocked the regulation, but the appellate panel majority vacated this holding in June 2011.
“The prohibition against using school facilities for the conduct of religious worship services bars a type of activity,” Judge Pierre Leval wrote for the majority. “It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit.”
Leval distinguishes the case at hand from other cases considered by the Supreme Court.
“[N]either the Supreme Court nor this court has considered the constitutionality of a policy that allows the regular use of public schools for religious worship services,” Leval wrote.
“In any event, the reasonableness of the Board’s concern to avoid creating a perception of endorsement resulting from regular Sunday conversion of schools into Christian churches, together with the absence of viewpoint-based discrimination, distinguishes this case from the Supreme Court’s precedents striking down prohibitions of the use of educational facilities or funds by religious groups,” the opinion also states. “All of those cases involved rules or policies which broadly suppressed religious viewpoints and which, in their particular applications, disfavored activities which had far less potential to convey the appearance of official endorsement of religion.
Holding worship services transforms the site into a church, at least temporarily, and schools have a valid concern in trying to avoid the appearance of endorsing religion, the majority added.
Bronx Household of Faith’s own relationship with P.S. 15 to date has provided ample evidence of schools’ concerns, the ruling states.
“Bronx Household has held its worship services at P.S. 15, and nowhere else, every Sunday since 2002,” Leval wrote. “Under the injunction, at least twenty-one other congregations have used a school building on Sundays as their regular place for worship services. During these Sunday services, the schools are dominated by church use. Church members post signs, distribute flyers, and proselytize outside the school buildings. In some schools, no other outside organizations use the space. Accordingly, on Sundays, some schools effectively become churches. As a result of this church domination of the space, both church congregants and members of the public identify the churches with the schools. The possibility of perceived endorsement is made particularly acute by the fact that P.S. 15 and other schools used by churches are attended by young and impressionable students, who might easily mistake the consequences of a neutral policy for endorsement.”
Muslim and Jewish faiths are also inadvertently excluded from school facilities because they would not normally seek to hold services on Sundays, which is when the school facilities are typically available for public use.
“This contributes to a perception of public schools as Christian churches, but not synagogues or mosques,” Leval wrote.
On Monday, the Supreme Court spurned the 2nd Circuit’s call for it to have the final say. Justice Sonia Sotomayor did not participate in the court’s consideration or decision of the case, however.
Leval had called the church’s case “terra incognita.”
“The Supreme Court’s precedents provide no secure guidelines as to how it should be decided,” he wrote. “The main lesson that can be derived from them is that they do not supply an answer to the case before us. Precedent provides no way of guessing how the Supreme Court will rule when it comes to consider facts comparable to these. By hunting and pecking through the dicta of various opinions, one can find snippets that arguably support a prediction either way.”