Establishment Clause Cross-Winds

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. 

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