Lawyers for the Bronx Household of Faith said yesterday that NYC's arguments to U.S. Supreme Court avoid central issues regarding the freedom of speech and religious liberty. “In New York City, any community group can meet in vacant school buildings for any purpose except for religious groups meeting to worship God. The city’s arguments in defense of this policy cannot withstand constitutional scrutiny,” said Jordan Lorence, Senior Counsel for Alliance Defending Freedom. “Evicting churches and the help they offer the people in their communities through their worship services in otherwise empty buildings on weekends helps no one. Violating the First Amendment, as New York City is doing, hurts everyone. For that reason, we hope the U.S. Supreme Court will agree to hear this important case.”
The City filed a legal brief with the U.S. Supreme Court on Monday, January 12th arguing for the constitutionality and public good of the rules prohibiting religious groups from obtaining space in public schools for worship services.
Last Fall, the Second Circuit Court of Appeals ruled in Bronx Household of Faith v. Board of Education of the City of New York that the city could make rules for public school usage that exclude certain types of activity like “religious worship services.” The church appealed the ruling to the U.S. Supreme Court, pausing the enforcement of the rule until a final court decision is made. Some observers say that Mayor Bill De Blasio merely wants to preserve the city's options in what type of rules that it can implement in allocating public school space and would not kick the churches out regardless of the outcome of the court battle. However, the City has not given any public assurance to the religious groups that the rule prohibiting worship services wouldn't be enforced if the court upholds the constitutionality of the rule.
The City argues that it prohibits gambling, electioneering and other types of activity that has constitutional protections in different circumstances. The brief of the City's lawyers painted a rather sordid picture of church evangelists using the offer of free hot chocolate to lure school kids in the street into a church worship service at the public school. The New York City Department of Education argues that it favors freedom of religion except where religious practice seems to imply the establishment of a state endorsed church. So, the department says it was constitutionally wise in implementing Regulation I.Q. against religious groups in 1995 even though the department allows other community groups to rent space for their meetings.
The Alliance Defending Freedom says that the City is arbitrarily singling out religious worship activity for disapproval. The City itself admits that churches can rent public school space for other activities like Bible study, hymn singing, faith-based counseling, celebrations, etc. just as other community groups do. “The Department did not need to open its facilities for after-hours nongovernmental uses, but it did. Now it must abide by constitutional rules forbidding express discrimination against religious expression and practices in otherwise permissible uses,” the Alliance reply brief explains.
“Conspicuously absent from [the city’s] opposition is any attempt to describe how Reg. I.Q. survives the baseline free exercise [of religion] test announced…and affirmed in [two previous Supreme Court decisions],” the brief states. “This is not surprising because a government policy like Reg. I.Q., which singles out expressive conduct undertaken for religious reasons for exclusion from a public forum is not neutral or generally applicable and cannot be justified by an unfounded fear of violating the Establishment Clause.”
The lawyers for the Bronx Household of Faith expect the Supreme Court to announce toward the end of February on whether it will hear the church's appeal. In the meantime the City has declined to publicly say what it will do if it succeeds in its court battles against the religious groups.