Update: Only one church will be permitted to meet in a NYC public school on Sunday, February 19. On Friday the city government started issuing permits for churches to continue meeting in public schools. Mayor Bloomberg said that the city couldn't stop the churches from meeting. However, the city government appealed the decision of U.S. District Court Judge Loretta A. Preska. Then, a three judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the temporary restraining order against the city schools only applied to the situation of the one church in whose name the case was brought to the courts. So, only Bronx Household of Faith may meet in a public school on Sunday.
U. S. Federal District Court Judge Loretta A. Preska granted a temporary order to restrain the NYC Board of Education from blocking Sunday worship services of churches renting space from the public schools. She found the plaintiffs, Bronx Household of Faith and their pastors, had demonstrated "irreparable harm and a likelihood of success on the merits of their Free Exercise Clause and Establishment Clause claims." Her order will affect all religious groups holding worship services in the public schools.
The appeal was based squarely on the freedom of religion clause in the First Amendment to the U.S. Constitution. It states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The judge noted that her restraining order will be in effect for 10 days while the U.S. District Court for the Southern District of New York more fully considers constitutional arguments about the city’s unique-in-the-nation prohibition on worship services in vacant public school buildings on weekends. The court then may decide on whether to issue a preliminary injunction to allow further consideration or a permanent injunction.
Before the Federal judge ruled against them, city lawyers wrote her that they already had plans to rent to others the space where the churches had been meeting. The city government said that they wanted to act immediately. "The Department [of Education] cannot...hold off preparations for these events [next weekend] in abeyance even until tomorrow [Wednesday]."
Several ministries and churches have reported to A Journey that this week the Department of Education badgered them to answer the question "Will you be holding worship services at your event?" One ministry had sent in their application with the statement on the application that "we are not a worship service." However, the city delayed a decision on the application and cross-examined the applicant. "Your permit to continue to use [the school] is currently under review. Please advise in writing whether the activity you will be conducting includes worship services. You cannot continue using the building until we receive and review this information."
From scattered evidence it seems that the city is deliberately scaring the groups into not answering the question for fear of saying something wrong. Some ministers wonder if the question isn't some sort of trick question. Other leaders say that because they consider all of their activities, even Bible studies, to be some sort of worship, that the question doesn't make sense to their theology.
Pastor Bill Devlin, one of the protest leaders, said that if a church or ministry is doing just a Bible study, prayer, devotionals or other legally protected acts, that it should clearly and forthrightly list what they are doing. However, the city is using this answer as evidence of being unforthcoming.
Reformation Presbyterian Church Pastor Brad Hertzog wrote to the court that his application to continue holding Bible study services for about 65 people at a school in Fresh Meadows, Queens, was denied by the city after he declined to answer yes or no to the question: "Are you conducting religious worship services?" Crossroads Church in Staten Island applied for a farewell gathering at Public School 52 this coming Sunday. They insisted that their gathering was not a worship service but were told that their application would be treated skeptically.
The municipal legal beagles informed the judge that the city government had little sympathy for the churches."The hardship [the churches' claim] is entirely one of their own making," said Jonathan Pines, Asst Corporation Counsel for the City of New York. After the judge's ruling today, the counsel for Bronx Household of Faith and its pastors argued that it was the city government that was dealing out pain to whole neighborhoods.
“Churches help communities; evicting churches hurts communities. Empty buildings offer nothing to communities that need hope,” said ADF Senior Counsel Jordan Lorence, who argued before the court on Tuesday. “The court’s order is a message of hope for fundamental freedoms in New York City because it means that, for the time being, the city must welcome churches as it does other groups. ADF will continue to fight this battle relentlessly until the city no longer unconstitutionally prohibits activity for purely religious reasons.”
Many New York City churchgoers have been protesting the city’s plans to evict them ever since the U.S. Supreme Court declined to take up the case on free speech grounds on Dec. 5 of last year. A bill that would compel the city’s Department of Education to allow the worship services passed the state senate this month and is awaiting action by the state assembly.
“This order from the court in no way should stop efforts by the New York Legislature to overturn this policy,” Lorence explained. “The courts have consistently ruled that the Constitution does not require New York City to ban religious worship services, so the city or the state legislature is free to repeal the policy.”
“Now that the courts have spoken up on the side of fairness,” said New York City Council Member Fernando Cabrera. “I call on the New York State Legislature and Speaker Sheldon Silver to move forward with bills that would rapidly solve this issue.” He continued, “This court order is a fantastic victory and will calm the 60 plus congregations that were frantically searching for space. I commend the US District Court for ruling justly.”