MANHATTAN (CN) – A federal judge justified her decision to issue a temporary restraining order preventing the city from kicking a church out of a Bronx school, even though the 2nd Circuit overturned her similar ruling late last year.
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 said that the 2nd Circuit did not have the opportunity to consider Bronx Household of Faith’s other argument, based on the Free Exercise Clause.
“Unsurprisingly, the Court of Appeals did not address Plaintiffs’ Free Exercise Clause claim when it reversed summary judgment for Plaintiffs and vacated the injunction,” Preska wrote. “That is so because this Court granted summary judgment and the permanent injunction on free speech grounds only. Simply put, there was no need for the Court of Appeals to rule on the Free Exercise Clause claim because it was not immediately before the appellate panel. This Court has now fully considered the claim and finds Plaintiffs have demonstrated a likelihood of success on the merits.”
Preska argued that the regulation violates the Free Exercise Clause because it favors secularism over religious practice.
“The policy expressly bans ‘religious worship services’-conduct for which there is no secular analog,” Preska wrote, later adding, “A law is not neutral if its object is to infringe upon or restrict practices because of their religious motivation.”
In Preska’s opinion, the church’s Free Exercise Clause concerns trumps the city’s Establishment Clause objections.
“In this Court’s view, losing one’s right to exercise freely and fully his or her religious beliefs is a greater threat to our democratic society than a misperceived violation of the Establishment Clause,” the order states.
That position puts Preska in stark contrast to the New York Civil Liberties Union, on the subject of democratic rights.
“New Yorkers have a right to worship, or not worship, as they choose,” NYCLU advocacy director Udi Ofer wrote in a New York Times column. “But the separation of church and state is a foundation of religious freedom. Allowing the government to permit religious worship services in public schools violates this time-honored principle.”
In a written case, Jane Gordon, Senior Counsel, Appeals Division, New York City Law Department, on Bronx Household of Faith Case .
“The City plans to seek an immediate appeal. We believe that this Court’s decision is inconsistent with the recent Second Circuit order and that court’s prior decision on the case’s merits.”