The United States District Court for the Southern District of New York has issued a preliminary injunction finding the regulation issued by the Board of Education of the City of New York facially unconstitutional under the Free Exercise Clause.  The case is in part interesting because the Second Circuit had narrowed the scope of the District Court’s TRO to the plaintiff, Bronx Household of Faith.  As I explained in this post, however, the plaintiff is challenging the regulation as being facially unconstitutional.  That would invalidate it as to everyone, not just Bronx Household of Faith.

And that is exactly what the district court held in issuing its preliminary injunction.  In the final footnote of the opinion, the court said:

The Court is, of course, aware of the Court of Appeals’ order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party.

With respect from these quarters, too, it seems to me that Judge Preska is surely right about this.  If a regulation is found facially unconstitutional (as Judge Preska found this one to be), the state is prohibited from enforcing it not only against the plaintiff, but against everybody.  The finding is that there are no situations in which enforcement of the regulation would be constitutional.

The other interesting note is that Judge Preska reaffirmed her TRO findings that the regulation is not neutral on its face because it singles out worship for specially negative treatment, and because it discriminates against structured forms of religious expression in favor of unstructured forms of religious expression.  The district court also found that the Department of Education did not have a compelling interest here in conveying the appearance of not violating the Establishment Clause by issuing the regulation (this formed part of the basis for Judge Leval’s earlier Second Circuit majority opinion).  Neither the Second Circuit nor the Supreme Court has held that any interest in avoiding the appearance of an Establishment Clause violation is sufficiently powerful to justify viewpoint discrimination — a clear violation (rather than merely the appearance of a violation) of the Free Speech Clause.