Bronx fail: 2nd Cir. says churches can’t rent NYC school facilities, but all other community groups can

NEW YORK — The U.S. Court of Appeals for the 2nd Circuit ruled 2-1 Thursday that New York City public schools can single out churches for exclusion when deciding who can rent school facilities for weekend meetings--a decision that runs contrary to established U.S. Supreme Court precedent.

For approximately 16 years, attorneys with the Alliance Defense Fund have represented a Bronx church in a lawsuit against the New York City Department of Education, which has spent tremendous sums of taxpayer dollars to keep the church from renting space for religious services at one of its schools even though it allows all other community groups to rent space for their meetings. ADF attorneys say they intend to appeal the 2nd Circuit’s decision to ensure that churches are not tossed out of the schools after having been protected by an injunction that has been in place for nine years.

“Religious groups, including churches, shouldn’t be discriminated against simply because they want to rent a public building just like other groups can,” said ADF Senior Counsel Jordan Lorence, who argued before the 2nd Circuit in October 2009. “The idea that people of faith may be singled out for discrimination is flagrantly contrary to the U.S. Constitution. The 2nd Circuit greatly erred by not putting an end to the board’s continued defiance of the First Amendment. In addition, the U.S. Supreme Court has already definitively ruled that the government must allow religious groups to have the same access that other groups have.”

Once all appeals are exhausted, the outcome of the case, Bronx Household of Faith v. Board of Education of the City of New York, could have wide-ranging ramifications for churches throughout the nation that wish to meet in public schools on the same terms and conditions as other community groups.

The New York City Department of Education consistently rejected Bronx Household’s request to rent a school building for weekend services until a federal district court issued an injunction prohibiting the department from keeping the church out. Department officials appealed, repeating their claim that allowing churches to rent school buildings would be unconstitutional--even though the Supreme Court has ruled otherwise.

In his dissent, Circuit Judge John Walker wrote, “The majority’s formulation of ‘religious worship services,’ including its shoehorning of a supposed Establishment Clause problem, is conveniently tailored to support its arguments, but leaves no doubt that it is ‘religious services’ and ‘worship’ that the Board is targeting for exclusion…. The majority’s attempt to differentiate between the conduct of an event, here labeled ‘services,’ and the protected viewpoints expressed during the event is futile because the conduct of ‘services’ is the protected expressive activity of the sort recognized in Good News Club and, earlier, in Widmar,” which are previous Supreme Court decisions.

“Churches that meet in public school buildings have been a huge benefit to the communities around them,” Lorence explained. “It’s very sad when government officials misinterpret the Constitution and attempt to kick such groups out. That is clearly not at all what the authors of the Constitution intended.”

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.