Free Exercise vs. Establishment of Religion Commentary
Free Exercise vs. Establishment of Religion
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JURIST Guest Columnist Bruce Schneider of Stroock & Stroock & Lavan LLP. discusses the First Amendment and the “extended use” of public schools …

The Framers saw the two religious freedoms secured by the First Amendment as being in harmony: the prohibition against a government-established church was what enabled religious minorities to freely exercise their religious beliefs. The 20 year litigation arising from the denial by the Board of Education of the City of New York of an application by Bronx Household of Faith for the “extended use” of a public school auditorium for the conduct of Christian “worship services” each Sunday has pitted those religious protections against each other. On April 3, 2014, the US Court of Appeals for the Second Circuit, in a 2-1 decision, reversed the US District Court for the Southern District of New York’s granting of summary judgment and a permanent injunction barring enforcement of the Board of Education’s policy against the use of school facilities outside of school hours for the purpose of holding religious worship services.

The Board of Education promulgated regulations governing the “extended use” of school facilities by outside organizations outside of school hours. “Extended use,” which requires a permit from the Board of Education, grants the organization use of the facilities rent-free, requiring only the payment of maintenance fees. The Board regulation provides: “No permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship.” Bronx Household of Faith (the “Church”) applied for a permit and in its application used the term “Christian worship services” to describe its intended activity. The Board rejected the Church’s application but, for the twenty years of this litigation, the Board was virtually continuously enjoined from enforcing its regulations.

In those intervening years, the Church had become financially dependent on the government-subsidized public school space for its weekly worship services and claimed that it could not afford to pay prevailing rents for a space large enough to accommodate its entire congregation.

Through those years, there also developed a movement by certain religious groups to “plant” churches in public schools for long-term use. In the school year 2010-11, 99 permit applicants sought to hold worship services in city schools and approximately 80 of them were holding services in a city school on a regular basis. The City of New York found that, since 2005 when it last tabulated applications, there had been a 348 percent increase in the number of applications by organizations to hold religious services in the public schools on a regular basis.

Initially, the Church challenged the Board regulation as a denial of Free Speech, but that proved unsuccessful and its argument came to rest on the Free Exercise of Religion. In the District Court’s view, because Bronx Household and its congregants have a constitutional right to worship without government interference and could not afford market rents for a sufficiently large site, the Free Exercise Clause obligated the Board to provide them with a subsidized facility in which to exercise that right. Circuit Judge Pierre Leval, writing for the Second Circuit majority, held that the Free Exercise Clause did not require the government to finance the Church and its congregants’ exercise of that right. While the government could not place obstacles in the path of the exercise of First Amendment rights, it was not required to remove obstacles not of its own making.

The District Court believed that the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah mandated that a city’s denial of the use of school premises for worship be assessed under a strict scrutiny test. The District Court reasoned that, because the conduct of religious services has no secular analog, the Board’s decision was necessarily a suspect discrimination against religion to be assessed under strict scrutiny.

The majority disagreed, holding that Lukumi subjected to strict scrutiny only a city’s selective imposition of burdens on the conduct motivated by religious belief. The majority observed that, in Lukumi, the very motive of the City of Hialeah’s ordinances was to suppress the worship of the Santeria religion. The majority found it crucially important that here, the Board’s sole reason for excluding worship services was its concern that it would violate the Establishment Clause by appearing to endorse religion. The Board’s policies permitted use of the schools by religious groups for other purposes, just not for religious worship. The majority did not consider the prohibition against all worship services as discriminating against religion because rules and policies that were designed to keep a governmental entity in compliance with its obligations under the Free Exercise and Establishment Clauses must inherently focus on religion: if the activity were not of a religious nature, the Religion Clauses would have no application.

The majority found that the Board’s action was more analogous to Locke v. Davey. There, the Supreme Court did not apply strict scrutiny and upheld a Washington statute that excluded theology students from eligibility for a scholarship program for gifted post-secondary students. The Supreme Court distinguished Lukumi because Washington did not prohibit or restrict the performance of a religious ritual; it merely chose not to fund a particular category of instruction. As the majority read Locke, strict scrutiny was not required because Washington had enacted that limitation on funding in the interest of historic Establishment Clause concerns. The majority concluded that, likewise here, “the Board’s interest in respecting the principle of the Establishment Clause that disfavors public funding of religion is substantial and the burden, if it can properly be called a burden, that falls on Bronx Household in needing to find a location that is not subsidized by the city for the conduct of its religious worship services, is minor from a constitutional point of view.”

The District Court held that the Board’s denial of the application would be justified only if conducting worship services on school premises during off-hours would in fact violate the Establishment Clause. The majority, however, did not find it necessary to determine whether the rent-free use of the public school would, in fact, be a violation of the Establishment Clause, although a substantial argument could be made that the quasi-permanent rent-free use of the school facility for worship services was an endorsement of religion. The majority found it sufficient that the Board had a reasonable, good faith concern that making its school facilities available for the conduct of services would give rise to a “substantial risk” of violating the Establishment Clause. They observed that, in having to choose between granting or denying the application, the District Court’s rule placed the Board on the horns of a dilemma—if it granted the application for religious worship to permit “free exercise” of religion and it was later determined to be an endorsement of religion, it would be in violation of the Establishment Clause. The converse would also be true: if it denied the application to avoid violation of the establishment clause, it could later be held to have interfered with the free exercise of religion.

The majority also rejected the District Court’s conclusion that the policy that authorized the Board to look beyond the four corners of the application placed it in the position of determining what constituted a “worship service” and thereby entangled it in religion. The majority found that the Board did not make its own determination but, instead, relied on the user’s application. The application required a description of the activities intended to be conducted, required the applicant’s certification that the information provided was complete and accurate and did not include any of the uses prohibited by the Board’s regulation. The Board was not required to make its own judgment of what conduct constituted religious worship.

In dissent, Circuit Judge Walker viewed the regulation differently. Returning to a Free Speech analysis, he saw the public school as a limited public forum and that the Board’s regulation discriminated against a religious viewpoint, which was impermissible under the Supreme Court’s decision in Good News Club v. Milford Central School. His dissent did not view the rent-free use of the school as a subsidy because the Board charges the same rate to all organizations using its facilities. Accordingly, to be constitutional, Walker argued, the regulation had to withstand strict scrutiny. He rejected the majority’s “reasonable, good faith judgment” test because, in his view, Supreme Court precedent foreclosed the possibility that an Establishment Clause violation would result if religious worship services were allowed in school facilities under these circumstances. Walker found this argument bolstered by a survey of the fifty largest school districts in the country, which found New York City to be the only one to entirely exclude worship services. To Walker, it was “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 majority’s holding, that a reasonable, good faith concern about a violation of the Establishment Clause justified the Board’s restriction, strikes a proper balance between the two Religion Clauses of the First Amendment, particularly in the context of children in a public school. Today, the public schools of cities like New York serve a population that is growing ever more diverse. These schools must be sensitive to the fact that many children belong to minority religions or are raised in non-religious environments. The concern that there not be a message of endorsement of a particular religion is greater than ever before for an educational system like New York City’s, where so many students are immigrants from different lands and different political systems and cultures, some of which have established religions and some of which do not respect freedom of conscience. An educational system’s reasonable, good faith concern not to convey messages to children and their parents of sectarian endorsement and that non-adherents are outsiders, is sound justification for limiting the use of school facilities for worship purposes.

Bruce H. Schneider is a litigation partner in the New York office of Stroock & Stroock & Lavan LLP. Mr. Schneider concentrates in antitrust, health care, securities, copyright, trademark and general commercial litigation. He has particular expertise with litigation arising under the Investment Company Act of 1940 and other matters of concern to mutual funds.

As counsel to corporate officers, directors and their advisors, Mr. Schneider has litigated matters related to corporate transactions, including contests for control, hostile acquisitions and restructurings. In his antitrust practice, he regularly advises clients on distribution, licensing, health care and acquisitions issues.

Mr. Schneider lectures and writes on antitrust issues and frequently has been a commentator on CNN and other financial programs on cable TV. He is listed in Chambers USA.

Suggested citation: Bruce Schneider, Free Exercise vs. Establishment of Religion, JURIST-Hotline, May 30, 2014,

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