NEW YORK (CBSNewYork/AP) — New York City can ban Sunday religious worship services at public schools that otherwise might become state-sponsored Christian churches on weekends, a federal appeals court ruled Thursday. The decision is likely to affect dozens of schools where services are conducted each week.
The 2nd U.S. Circuit Court of Appeals in Manhattan overturned a lower court decision and rejected arguments that the Supreme Court had opened the way for worship services to be conducted at schools.
A three-judge panel said in a 2-1 decision that the city Board of Education “had a strong basis to be wary that permitting religious worship services in schools, and thus effectively allowing schools to be converted into churches on Sunday, would be found to violate the establishment clause” of the Constitution, which bars Congress from making a law respecting an establishment of religion or prohibiting the free exercise of one.
The court concluded that the nature of the schools change when religious worship services are performed.
“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,” Judge Pierre Leval wrote for the majority. He said it was reasonable that the city was concerned it was substantially subsidizing churches because it neither charges rent for use of its space or charges for utilities.
The appeals court said the fact that the schools are principally available for public use on Sundays causes an unintended bias in favor of Christian religions because Jews and Muslims generally cannot use schools on the days when their religions generally conduct services.
In a dissent, Judge John Walker said the majority had “shut the door” on the protected speech of a Bronx church.
The ruling came in a case brought on behalf of the Bronx Household of Faith, an evangelical Christian church that sought to hold Sunday services in a public school.
The court noted that Bronx Household has held its worship services at Public School 15 and nowhere else every Sunday since 2002 and that the case record which has not been updated since 2005 showed that 21 other congregations have used a school building on Sundays as their regular place for worship services since a lower court judge blocked the city from stopping them. It added that a city lawyer said at oral argument in October 2009 that the number of churches using schools for worship services has increased substantially since 2005.
The appeals court said the city rule does not exclude prayer, religious instruction, expression of devotion to God and the singing of hymns, whether done by a person or a group. Including those activities allows it to comply with the precedent established by the Supreme Court in 2001 in “Good News Club v. Milford Central School,” the court said. That ruling found it unconstitutional for a public school district in Milford to exclude from its facilities a private Christian organization for children that had asked to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture and pray.
U.S. District Judge Loretta A. Preska in Manhattan cited the Supreme Court ruling when she ruled in favor of Bronx Household in 2002, six years after she had ruled against its claim against the city.
In its decision, the 2nd Circuit said there was “an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”
It said schools may exclude from their facilities such activities as martial arts matches, livestock shows and horseback riding even though participants and spectators express their love of them. It said it may prohibit use of its facilities for such activities for valid reasons, but may not exclude meetings that would celebrate martial arts, cow breeding, or horseback riding because that would be viewpoint discrimination.
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