The latest decision in this long legal battle (which began back in 1995) was written last Friday by United States District Judge Loretta Preska, who issued a permanent injunction against the City of New York from implementing its policy of excluding Bronx Household of Faith and other organizations engaged in “worship services” from using public school facilities on equal terms with other groups. For some previous discussion of the case, see this, this, and this.
The court readopted its legal findings from the preliminary injunction, but addressed the City’s new claims as well. It held that the policy violated the Free Exercise Clause because it (a) was not neutral, therefore lifting it out of the framework of Employment Division v. Smith; and (b) does not satisfy strict scrutiny.
In specific, the court said that the City policy “substantially burdens” the church’s capacity to congregate together, because of the exorbitant price of renting property in the City. No other location than a public school would be able to accommodate the full congregation, and the church’s planned building is still under construction; other locations would compel the church to reduce its membership.
The court also rejected an argument that I’ve discussed before — the City’s claim that it has an interest in avoiding Establishment Clause violations, or in vindicating “concerns” about the Establishment Clause. The bottom line is that the court holds that whle “a concern over an actual violation of the Establishment Clause could certainly justify a burden on the free exercise of religion under Lukumi,” a concern about the appearance of violating the Establishment Clause cannot do so. Slip op. at 22 (and take a look at the, to my mind, persuasive footnote to Justice Scalia’s dissent in Locke v. Davey). This was a “misperceived Establishment Clause concern” on the part of the City, not a real one. Slip op, at 26. Also noteworthy is the court’s emphasis on the sui generis nature of Locke, which arguably was the Supreme Court’s own view. Slip op., at 25.
The court also held that the City’s interest in the policy was not compelling — avoiding the appearance, as opposed to the reality, of an Establishment Clause violation is not a “compelling interest.” There was no issue of endorsement because close to 95% of all permits issued by the City go to non-religious organizations. “In short,”
none of the scant evidence that Defendants point to proves that an Establishment Clause violation would result but for Ch. Reg. D-180’s religious use prohibitions. Instead, the opposite is true. “[V]iewed in its totality by an ordinary, reasonable observer,” Galloway v. Town of Greece, 681 F.3d 20, 2012 WL 1732787, at *8 (2d Cir. 2012), a policy that treats neutrally all applicants—religious and secular alike—would not “convey the view that the [Board] favored or disfavored certain religious beliefs[.]
Finally, the court holds that the policy violates the Establishment Clause as well. You ought to check out the affidavit of Marilynne Cole setting forth an exchange with a school board official discussed by the court at pp. 49-50. That seems to me fairly strong evidence of excessive entanglement, as the government decides precisely which forms of religious expression and activity will be permitted and which forms excluded (“Bible study would be ok,” the official says, ” but not prayer meetings”).
Next stop: the Second Circuit.