The Patriot Post® · Second Circuit Keeps the Doors Locked for NYC Church

The Second Circuit Court of Appeals upheld a decision by the Board of Education of the City of New York that bars churches from using public school facilities. The Bronx Household of Faith, a small church, has been fighting for nearly 20 years to rent public space for worship services on Sunday mornings. Yet the city has argued that it can’t “establish religion” by allowing it.

A three-judge panel of the Second Circuit agreed, ruling that the ban “is constitutional in light of the Board’s reasonable concern to observe interests favored by the Establishment Clause and avoid the risk of liability under that clause.” As the Heritage Foundation’s Sarah Torre and Andrew Kloster write, “In other words, the government doesn’t just have an interest in not violating the Establishment Clause; it has an interest in not appearing to violate the Establishment Clause.”

Alliance Defending Freedom (formerly known as Alliance Defense Fund) is representing the church, and it’s considering an appeal to the full Second Circuit or to the U.S. Supreme Court. The group’s senior counsel on the case, Jordan Lorence, says, “The First Amendment prohibits New York City from singling out worship services and excluding them from empty school buildings.” Why? Because these groups “pay the same uniform rates that everyone else does to use the schools,” and therefore can’t be denied solely based on religion.

The plaintiffs are encouraged by the dissent of Judge John M. Walker Jr., an appointee of George H.W. Bush, who wrote that the New York Board’s policy “permits extensive religious conduct in public schools, such as a Quaker meeting service or a Buddhist meditation service, so long as it is not following a prescribed order or led by an ordained official. … Indeed, [the policy] ‘prohibits use of school facilities to conduct worship services, but does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view.’” In other words, the city is fighting tooth and nail only to prevent a church from holding a worship service using the facilities, not to consistently apply a standard.

It’s deeply troubling that in a nation founded by people seeking to freely exercise religion, Christians are facing increasing hostility to that liberty. Whether it be the forcible violation of conscience through “health” mandates or providing services, or the Air Force Academy selectively silencing speech, or the New York City Board of Education barricading the doors to prevent worship, we’ve gone a long way from our founding.