In the latest chapter of a long-running legal fight over separation of church and state, a federal appeals court again ruled on Thursday that New York City school officials can ban a small Christian congregation from holding weekend services in a grade school.
The 2nd U.S. Circuit Court of Appeals found that a city Department of Education policy that prohibits church services in public schools is constitutional. The policy allows religious and other community organizations to use classrooms and other facilities for after-hours programs but denies access to those seeking to use the space as a "house of worship."
Two of the three judges on the panel agreed to reverse a 2012 lower court decision by U.S. District Judge Loretta Preska ordering the department not to enforce the rule against the Bronx Household of Faith. The appeals court disagreed with the judge's finding that denying the church access to the school would violate First Amendment protections regarding free exercise of faith.
"In the District Court's view, because Bronx Household and its congregants have a constitutional right to worship as they choose without interference from government and cannot afford to pay for a large enough site to accommodate the entire congregation, the Free Exercise Clause obligates the (department) to provide them with a subsidized facility in which to exercise the right," the majority wrote. "The Free Exercise Clause, however, has never been understood to require government to finance a subject's exercise of religion."
By refusing to host religious services, the department is correctly seeking to avoid the risk of violating the Establishment Clause, which prohibits government from endorsing a religion, the two judges added. The dissenting judge disagreed, in part by citing a survey finding that of the 50 largest school districts in the United States, New York City is the only one that excludes religious worship from its facilities.
"It is striking that none of these other school districts appear to have the slightest concern about violating the Establishment Clause, nor have any of their community use policies been found to violate the clause," the third judge wrote.
A lawyer for the Bronx Household of Faith, Jordan Lorence, said the church was considering an appeal to the entire circuit bench or to the Supreme Court.
"The First Amendment prohibits New York City from singling out worship services and excluding them from empty school buildings," Lorence said in a statement.
The lawyer added: "There is no subsidy of churches here. Churches and religious groups pay the same uniform rates that everyone else does to use the schools."
It was the second time that the appeals court had reversed the lower court judge in a case that's almost two decades old. Mayor Bill de Blasio said Thursday that it was too early to assess the impact of the latest ruling.
The mayor, a Democrat, said he hadn't seen the decision but added that he stood by his beliefs "that a faith organization playing by the same rules as any other community nonprofit deserves access. ... But we'll assess the court decision and we'll go from there."
For now, the Bronx Household of Faith is planning to hold a service in the school on Sunday, its lawyer said.