Bronx Household of Faith v. Bd. of Education of New York

Christians who think that the US government has been waging a war on religion, and more specifically Christianity have not been comforted by a recent circuit court ruling that allowed the city of New York to evict churches that have been using public schools for their worship services on Sundays.  I personally was rather shocked when I read WORLD magazine's article on the topic.  As someone very interested in the constitution and the constitutionality of today's courts, I searched (arduously) for the official summary of the case (which I ironically could not find in any article and was about to give up all hope when I found this link posted in a comment on an article.  (Thank you "christianlawyer.)  I encourage you to read the whole document, but as I myself didn't manage to read every word, I figured you might appreciate some of the
highlights.

“The "religious worship services" clause does not purport to prohibit use of the facility by a person or group of persons for "worship." What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion. The conduct of a "religious worship service" has the effect of placing centrally, and perhaps even of establishing, the religion in the school.”

"Nor is this rule of exclusion vulnerable on the ground that the activity excluded has some similarities to another activity that is allowed. To begin with, we reject the suggestion that because a religious worship service shares some features with activities such as a Boy Scout meeting, no meaningful distinction can be drawn between the two types of activities. See Dissenting Op. 56-57. Boy Scout meetings are not religious worship services. The fact that religion often encompasses concern for standards of conduct in human relations does not mean that all activity which expresses concern for standards of conduct in human relations must be deemed religion."

“There is 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. Under rules consistent with the purposes of the forum, schools may exclude from their facilities all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even though, by participating in and viewing such events, participants and spectators may express their love of them. The basis for the lawful exclusion of such activities is not viewpoint discrimination, but rather the objective of avoiding either harm to persons or property, or liability, or a mess, which those activities may produce. We think it beyond dispute that a school's decision to exclude martial arts matches would be lawful notwithstanding the honest claim of would-be participants that, through participating in the matches, they express their love of the sport and [*38] their character. The exclusion would nonetheless not represent viewpoint discrimination.”

Thus the majority argues that the law in question, which gives the city the ability to prohibit religious worship services in public schools at the city's own discretion, does not violate the freedom of speech and of religious expression because it gives the city the right to prohibit the act of religious worship instead of the expression itself.  However, although this may seem reasonable at first, the dissenting offers a rebuttal.

“While I disagree with Judge Calabresi's analysis and conclusions, he at least recognizes that the two parts of SOP § 5.11 operate in tandem to effectively preclude worship and the practice of religion from school premises during non-school hours. 

[fn2] Indeed, the majority's attempt to differentiate between the "conduct of services," which it defines as "the performance of an event or activity," Maj. Op. at 36, and the conduct of "religious worship services" as two distinct categories of activity relies explicitly on the religious nature of the latter activity. Whereas a Boy Scouts merit badge service constitutes "a collective activity characteristically done according to an order prescribed by and under the auspices of an organized [civic group]" and is "typically . . . conducted by an . . . official of the [group]," Maj. Op. at 37, Bronx Household's weekly "event or activity" is barred solely because it is performed under the auspices of an organized religion and conducted by an ordained official of the religion. Thus, these purportedly distinguishing criteria squarely depend on the fact that religion is the underlying motivation for the expressive activity.

[fn3] For this reason, the majority errs by distinguishing Good News Club on the basis of the Supreme Court's statement that the Club meetings in that case did not involve "mere religious worship." 533 U.S. at 112 n. 4, 121 S.Ct. 2093; see Maj. Op. at 43, 50. The majority omits a critical modifier: the Court made clear that it did not consider the Club's activities to be "mere religious worship, divorced from any teaching of moral values." Id.(emphasis added). The same is true here: Bronx Household's worship services cannot be divorced from the teaching of moral values that are part and parcel of those services, which include Bible lessons and instruction. Indeed, how can the majority's conception of religious worship services ever be divorced from promoting moral values?”

As the dissenting opinion demonstrates, the thing truly being permitted to be restricted is the religion, not the service, since services are obviously allowed, assuming they are not religious.  Thus such restriction is unconstitutional and should not be permitted by the court.  One wonders why on earth the supreme court refused to rule on such an important case, but I suppose they would rather focus on more important issues like the legal definition of words like marriage.

This brings us to the question covered by WORLD's article.  Why on earth would anyone want to stop churches from meeting in public schools.  The relationship seems to be mutually beneficial and the school gets extra money, the church gets a relatively inexpensive location to worship in.  However, the reasoning behind permitting this unconstitutional exclusion is briefly mentioned in the majority opinion.

“The conduct of a "religious worship service" has the effect of placing centrally, and perhaps even of establishing, the religion in the school.”

With all due respect to the justice, that is absurd.  Meeting in the school when no one else is around does not establish the religion in the school any more than when churches meet in movie theaters.  To my knowledge, such theaters have not adopted Christianity or even been perceived as doing such.  If the Muslims wanted to worship in the school, they could too (before the law in question was passed).  Any number of activities besides academics are performed in the school without being "placed centrally" or being established as unduly advocated by the school.  The only reason I see that people are so sensitive to these things is that they, under the guise of tolerance, are in fact quite intolerant of anything religious, and particularly Christian, as Christianity is still the most wide spread official religion in the US.   At the end of the WORLD article, WORLD interviewed three students at one of the schools currently being used by a church.  The students were completely unaware of the church meeting in the school in the first place and that there was nothing wrong with it.  After all, as one of the students said, "it's a free country".