The bearer of good news hesitates to follow his unwelcome counterpart too closely lest his audience still be shooting at the first, but he is also spurred by the hope that he can bring encouragement in the heat of engagement.
In that light, I hope you will be encouraged that the Second Circuit on Friday issued a permanent injunction favoring the church to which I belong in our 17-year-long First Amendment battle against the City of New York, Bronx Household of Faith v. Board of Education of the City of New York. The ruling will allow some 60 or more religious groups–not all churches–to continue meeting, as some have since 2002, in unused space in public schools after hours, having found the Board of Ed’s long-standing, explicit restriction against “religious worship” incompatible with First Amendment protections, its defense of abhorring a perception of aiding Establishment both unfounded and voided by its practice of inhibiting Free Exercise:
Having considered the latest evidence and the parties’ respective arguments, the Court determines that its reasons for granting Plaintiffs’ motion for a preliminary injunction were sound and that implementation of Ch. Reg. D-180 violates both the Free Exercise Clause and the Establishment Clause…
Defendants are permanently enjoined from enforcing Ch. Reg. D180 so as to deny Plaintiffs’ application or the application of any similarly-situated individual or entity to rent space in the Board’s public schools for meetings that include religious worship.
Apart from its positive implications for–among others–church plants here in New York, where renting has long been the only option to provide meeting space when congregations have outgrown an apartment and before they are able to purchase a facility of their own–there being no equivalent option here, as in much of the heartland, to Deacon Wilbert’s selling the church a half-acre of the North Forty at an agreeable price–Bronx Household’s many twists and turns have also caught the attention of the SCOTUS, and may do so yet again if the Board chooses to fight the injunction.
Judge Loretta Preska’s decision is refreshing in the context of her having overturned, in our favor in 2002, an earlier ruling of her own after having taken seriously remarks by Justice Thomas in a 2001 SCOTUS ruling. If you have been inclined to totally discount the possibility of anything good coming out of Nazareth the liberal Northeast, please keep her in your sights as someone who clearly values at least the First (and if you have Mitt’s ear, he should start reading her work as well). Here for your enjoyment are a few snippets in which she freely lambasted City’s counsel:
In this regard, the remainder of the quote that Defendants cite, with all due respect, is stale
Defendants’ attempt to marshal the Church’s resources and dictate how those resources should be deployed gives the Court great concern because it suggests that Defendants believe they know best how the Church should conduct its religious affairs. But only Plaintiffs may “decide for themselves, free from state interference, [such] matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952). Certainly Plaintiffs’ assessment of what qualifies as sufficient space to conduct the Church’s worship services is an “internal church decision,” which is outside Defendants’ regulatory authority. Hosanna-Tabor, 132 S. Ct. at 706-07.
But even putting aside Defendants’ mischaracterization of the posture of the “school prayer” cases, it is important to note that those cases did not involve competing Free Exercise Clause claims.
Indeed, the Court of Appeals in Bronx Appeal III believed that any form of exclusion would only “aggravate the potential Establishment Clause problems the Board seeks to avoid.” 650 F.3d at 43. Were Plaintiffs to exclude anyone from its Sunday meetings, no doubt Defendants would point to that in support of their antiestablishment interest. Defendants cannot have it both ways.
Finally, Defendants point out that, contrary to the Court’s finding in 2002 that there was no evidence children are in the school on Sunday mornings while the Church conducts its services, “sports programs, literacy enrichment programs, test preparation programs, and other activities for children and families have taken place in schools at the same time as religious organizations have held their worship services in the schools.” (Def. Mem. at 18.) But this evidence cuts both ways. Defendants cannot argue domination on the one hand—i.e., that the worship services so dominate the schools on Sunday mornings that Defendants’ Establishment Clause concern is heightened—and then also point to simultaneous non-worship Sunday activities that involve students to prove the same. The fact that a youth basketball program holds tournaments in a school at the same time that a church holds Sunday services there, both pursuant to a neutral policy that promotes the general welfare of the community, does not suggest to the informed objective observer that the school is endorsing religion just as it does not suggest the school is endorsing basketball.
First, the Court does not see how Defendants can possibly prove their assertion that “the two provisions of Ch. Reg. D-180 . . . reach all forms of worship” in light of their refusal to define either provision.
The following colloquy at oral argument highlights the problem of excessive entanglement that results from Defendants’ verification process:
COURT: If there is no definition in [Ch. Reg. D-180] of [religious] worship service or . . . house of worship, how can the regulation be enforced and how will folks know whether they are in or out?
DEFENDANTS: Well, your Honor, the plaintiffs themselves in their 56.1 statement make that argument for us, because they say it is only the religious worshiper who knows what worship is. . . . The definition [of “religious worship services” or “house of worship”] is what the religious organization believes it to be.
(Summ. J. Hr’g Tr. at 44-45, 60 (emphasis added [per injunction]).) If it is true that only a religious organization can define for itself what it means to conduct “religious worship services” or to use a building as a “house of worship,” it is equally true that an outsider has no insight into whether that organization is acting consistently with its own religious beliefs. Defendants’ attempts to do so in this case only serve to illustrate the constitutional impropriety of such a task.
Defendants are not immune from excessive entanglement once they begin to verify the qualitative nature of specific religious practices.26
26 Defendants even seemed to recognize as much at oral argument. (See Summ. J. Hr’g Tr. at 39 (“I think we sketched out—I mean, look, the plaintiffs have cited some e-mails or other communication[s] that said, you know, tell me in detail everything you’re doing. I’m not going to say that was what we intended that they do. Rolling out a policy of this difficulty to 1500 schools, you may find somebody asking questions that might not be the way you would want to frame them.” (emphasis added [per injunction])).)
Above all, for those among us who are known by Him to whom all authority in heaven and earth has been given, be encouraged by this clear outworking of what you know to be true–and which remains true even given Thursday’s news–that “The king’s heart is a stream of water in the hand of the LORD; he turns it wherever he will.” (Proverbs 4:21, ESV)