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January 01, 2013

Should Public Buildings Be Used for Worship?

by Stephen J. Wermiel

Should public school buildings be home to weekend worship services?

This question sits at the increasingly well-traveled but difficult-to-navigate intersection of freedom of speech and freedom of religion. The answer is important for New York City and other school districts that have wrestled with the issue and, more broadly, for defining the extent to which public officials must treat religious speech in the same manner as other expression.

To understand this issue and its importance, it is helpful to trace the circumstances of what is surely the longest-running dispute over holding worship services in public school buildings. The case pits the New York City Board of Education against a small Christian church, Bronx Household of Faith, which first applied to use school buildings in 1994 and has held Sunday worship services since 2002 at a Bronx, New York, public school that serves kindergarten through eighth grade on school days.

School officials rejected the Bronx Household application, and the church sued, setting off a legal battle that has produced some five federal district court decisions, four rulings by the U.S. Court of Appeals for the Second Circuit, and two denials of review by the Supreme Court. Most recently, in June 2012, U.S. District Judge Loretta Preska ordered New York officials to allow Bronx Household to continue meeting at Public School 15.

The fight might sound like a dispute over the dimensions of religious freedom under the First Amendment to the U.S. Constitution: whether the church has a right under the guarantee of “free exercise” to use public buildings, and whether allowing that use would violate the prohibition on “establishment” of religion. But the case is made more difficult by the overlay of freedom of speech under the First Amendment, or, more precisely, freedom of speech about religion.

The New York schools adopted a rule that made public school buildings open outside of school hours for social, civic, and recreational meetings. This policy turned the school buildings into what courts call a limited public forum, a space that is open to a range of speakers and activities that are consistent with the stated usage policy. But if there is one inviolate free speech principle in a limited public forum, it is that government officials may not engage in viewpoint discrimination—that is, favoring one point of view and disallowing another.

In a 2001 ruling, Good News Club v. Milford Central School, 533 U.S. 98 (2001), the U.S. Supreme Court found that it was impermissible viewpoint discrimination when a school system excluded a Christian group from after-school use of the building for a club in which students prayed, sang religious songs, and read and memorized Bible verses. The Court found that the school generally allowed outside groups to teach about morality and character but prohibited such teaching from a religious perspective. The Court said this was discrimination against speech with a religious viewpoint and violated the First Amendment.

After the Good News Club ruling, the issue of allowing worship services in school buildings grew more complicated, dividing federal judges in the Bronx Household case.

Bronx Household maintains, and Judge Preska agreed, that it was being denied access to school buildings because of discrimination against its religious viewpoint. Bronx Household also argued, and Judge Preska agreed in the most recent round of court proceedings, that the city was interfering with the First Amendment free exercise rights of the church to practice its religion by denying the church access to the only meeting space it can afford to rent. The church argues that it cannot afford to rent commercial space and, thus, will not be able to hold worship services without access to the school space.

The city argued, and the Second Circuit agreed, that prohibiting worship services was barring a form of content, not a particular viewpoint. Public officials may restrict content if they have legitimate reasons. In this case, the city argued, and the Second Circuit agreed, that prohibiting a specific content—worship services—was necessary to avoid violating the First Amendment establishment clause, which has been interpreted by the Supreme Court to require some degree of separation between religion and government.

In the latest rounds of the New York struggle, the case took a somewhat different twist that put the spotlight on the question of what constitutes a worship service. After the Second Circuit found a valid distinction between a worship service, which was prohibited, and the activities of singing hymns, praying, and chanting, which the Good News Club ruling said should be permitted, Bronx Household applied for a new permit that listed these activities and did not mention worship services. When New York officials said they would continue to enforce their policy to bar Bronx Household, Judge Preska issued the June 2012 injunction allowing the church to use the school building. At present, Judge Preska has the last word. In this new twist, Judge Preska said that the policy that allowed the city to decide between worship services and other religious practices was, itself, a violation of the Establishment Clause because the city became too entangled in evaluating religious practices.

The twists and turns of this story may be unique to the lawsuit between Bronx Household of Faith and New York City, but the struggle to define the contours of First Amendment interplay of free speech and religious freedom is an important one for public officials and religious institutions throughout the country.


Stephen J. Wermiel teaches constitutional law at American University Washington College of Law and is chair of the Section of Individual Rights and Responsibilities.