This is a news report about a hearing before Judge Loretta Preska (SDNY) on the Bronx Household of Faith case, discussed previously here and here.  The story may be behind a wall, so I will summarize some of it.  Bronx Household of Faith obtained a preliminary injunction and is now seeking a permanent injunction against New York City, which would stop the City from excluding Bronx Household and any other religious organization from equal access to public school facilities. 

The City’s ground for excluding Bronx Household was that it was engaging in “worship” while other groups using public facilities were not.  This rationale was accepted by the majority of a Second Circuit panel (Judge Walker dissented) as not constituting viewpoint discrimination, even though it was bound to accept the Supreme Court’s holding in Good News Club v. Milford Central School that the City could not exclude religious expression.  The panel further held that the City had an anti-establishment interest in avoiding the appearance of an endorsement which justified the policy of exclusion of “worship.” 

The case is now before Judge Preska on free exercise and establishment grounds.  Judge Preska seems skeptical that the City can determine what constitutes “worship” and what doesn’t without running into entanglement problems. 

Traditionally in constitutional law, excessive entanglement has been the third part of the Court’s Lemon Test — a still-viable though much criticized Establishment Clause test.  The entanglement prong has always seemed to me to be one of the more important parts of the test but it has faded from significance over the years (though one might argue that a concern about excessive entanglement is what grounds the Establishment Clause component of the Hosanna-Tabor decision).

But Judge Preska’s reported questioning suggests that excessive entanglement is really where she may mean to focus her decision.  If that is how the decision comes down, it will result in the following interesting situation:

• The Second Circuit holds that the (appearance of violating the)Establishment Clause justifies the City in excluding “worship.”
• The District Court holds that the Establishment Clause prevents the City from deciding what “worship” is.

This seems a little unstable.