MANHATTAN (CN) – New York City must let a Bronx church hold Sunday services at a public school, a federal judge ruled, despite a recent 2nd Circuit decision upholding the city’s ban.
City lawyer Jonathan Pines vowed to appeal again.
“We are very disappointed with the District Court’s ruling mandating that the Department of Education allow churches and other religious groups to worship in public schools after hours,” Pines wrote. “In finding that the Constitution requires that result, the District Court virtually ignores a Second Circuit appeals court decision, issued one year ago, rejecting the plaintiffs’ Free Speech claims.”
Bronx Household of Faith and its leaders Robert Hall and Jack Roberts have fought for 17 years to continue meeting Sundays at P.S. 15, and they soon found the sympathy of George H. W. Bush-nominated Judge Loretta Preska.
Preska, who now serves as Chief Judge of the Southern District of New York, issued a preliminary injunction in 2007 preventing the city from enforcing regulation D-180, which states 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 2-1 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.”
The matter seemed settled when the U.S. Supreme Court declined to hear an appeal.
Undeterred, Judge Preska ruled in favor the church again, arguing that the appellate court did not consider the Free Exercise Clause when it reversed her original ruling.
In her 59-page order, she argued, “[G]iven the uniquely expensive and crowded real estate market in which the Church resides, eviction from the Board’s schools would amount to a concrete loss of religious freedom.”
She also quoted an amicus, or “friend-of-the-court,” brief arguing that the Framers would have permitted religious services is government buildings.
“President Washington permitted religious groups to conduct worship services in the U.S. Capitol building as early as 1795,” the amicus brief stated. “President Jefferson, whose devotion to church-state separation cannot be questioned, regularly attended services in the Capitol throughout his presidency, and allowed worship services in the Treasury and War Office buildings as well. Even the Supreme Court chamber was occasionally used for worship services. Mr. Jefferson later invited religious societies, under ‘impartial regulations,’ to conduct ‘religious exercises’ in rooms at his beloved University of Virginia, for the benefit of students who wished to attend. He specifically observed that these arrangements would ‘leave inviolate the constitutional freedom of religion.'”
Ten religious groups, including the Christian Legal Society And Additional Amici, Council Of Churches Of The City Of New York, Brooklyn Council of Churches, Queens Federation of Churches and American Baptist Churches of Metropolitan New York, are listed as amici.
Since the time of the Framers, multiple Supreme Court rulings have made the wall of separation stronger. In 1962, Engel v. Vitale stopped the New York State Board of Regents from having children praise “Almighty God” at the start of the school day. The 1992 decision in Lee v. Weisman kept religious sentiments out of a graduation ceremony, and the 2000 decision in Santa Fe Independent School District v. Jane Doe barred a pre-game prayer at a high-school football game.
Pines, the city attorney, rejected Preska’s findings.
“We strongly disagree with the District Court’s view of the facts — including its finding that the high rents in New York City require the government to provide religious organizations government-subsidized space for purposes of worship,” Pines said. “We also disagree with the legal standard the court applied, imposing a higher burden on the government to protect its interest in avoiding endorsement of religion than the Supreme Court has applied in similar kinds of cases.” (Emphasis in original.)
Donna Lieberman, the executive director of New York Civil Liberties Union, also expressed her disappointment, and her confidence that another appeal would succeed.
“The NYCLU champions the right of all New Yorkers to worship, or not, as they choose,” Lieberman said. “But turning public schools into churches every Sunday undermines the core American principle of separation of church and state. We expect that the ultimate decision on this matter will be made by the U.S. Court of Appeals for the Second Circuit, which has previously upheld the city’s policy.”