New York City Mayor Bill de Blasio has reversed the New York City Department of Education’s policy of exclusion of religious groups that engage in “worship” from the use, on equal terms with other groups, of public school classrooms–a policy that was upheld several times by the Second Circuit as vindicating “interests favored by the Establishment Clause.” The Mayor concluded that “[a] faith-based organization has a right like anyone else” to use the public school space.
As Ms. Wright reports below, the United States Court of Appeals for the Second Circuit has issued its latest decision in Bronx Household of Faith v. Board of Education of the City of New York. For lots of background on the case, which involves equal access to a limited public forum–public school classrooms–after hours for a religious organization that engages in, among other things, “worship,” just type “Bronx” into the search tool at right, and see this post in particular. The court found for the City, with a dissent by Judge Walker.
Writing for the panel majority, Judge Leval framed the case in these terms:
This appeal raises the question whether the Board of Education of The City of New York (the “Board”), in making the City’s school facilities available outside of school hours for use by outside users and subsidizing such use, may, in furtherance of interests favored by the Establishment Clause of the First Amendment, refuse to permit the holding of religious worship services.
The trouble ought to be evident already. What exactly are “interests favored by the Establishment Clause”? Are they the same as interests the violation of which would be unconstitutional? Clearly not. If they were such interests, then it would be unconstitutional for the City to permit Bronx Household of Faith to use its facilities. But it isn’t unconstitutional for the City to do so. So what are these “interests”? How is the City acting consistently with “its constitutional duties” here? What “duties”? The City has no “constitutional duties” to exclude this organization.
After resurrecting the hoary distinction between “expression” and “conduct” (never mind that the Free Exercise Clause protects “exercise”), the court continues:
the Hialeah ordinances [in the Lukumi Babalu case] were motivated by the city council’s disapproval of the targeted religious practice. The Board has no such motivation. There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services. Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion. This difference is of crucial importance in determining the reach of Lukumi’s reasoning that a burdensome regulation focused on a religious practice is constitutionally suspect and therefore subject to strict scrutiny. This reasoning makes perfect sense when the regulation’s focus on religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a particular religion or religious practice). On the other hand, it makes no sense when the regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in complying with the Establishment Clause….The Establishment Clause prohibits government from engaging in conduct that would constitute an establishment of religion, such as endorsing, or seeming to endorse, a religion. It is only to the extent that governmental conduct affects religion that the restrictive force of the Religion Clauses is operative. Accordingly, rules and policies designed to keep a governmental entity in conformity with its obligations under the Religion Clauses must of necessity focus on religious subject matter. If the focus is not religious, the Religion Clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.
(12-13, emphasis added). I see. So a municipality can exclude religious people and organizations from access on equal terms to a limited public forum such as a public school classroom if including them would be not only “endorsing” religion but also “seeming to endorse” religion.
What does it mean to “seem to endorse religion”? I’m reminded of triple inchoate crimes in criminal law, like attempting to attempt to solicit somebody to commit a crime. What government exclusion of religion would be impermissible under a standard that protects an interest in appearing or seeming to favor religion? The court says that it would not be constitutionally impermissible for the government to issue the following rules: “This city shall not adopt any rule or practice that constitutes an improper burden on the free exercise of religion, or that constitutes an establishment of religion.” Or, “No school or teacher shall compel any student to participate in religious exercises, or seek to persuade any student to alter his or her religious beliefs.” I don’t understand the point of these examples. Of course those rules would be permissible. Those rules reflect what the Religion Clauses actually prohibit, not what they “appear” or “seem” to prohibit.
There are other debatable features of the majority opinion, including the extension of Locke v. Davey, which involved state subsidies, to this limited public forum case. More to the point, however, appearance of endorsement is not the standard under the Establishment Clause as misguidedly interpreted by the Supreme Court even since the Allegheny case. But as I have explained before, the endorsement test, with its emphasis on hurt feelings, offenses taken (and given), and the delicacy of personal sensibilities is at least partly to blame for what is an “inevitable” and deeply regrettable bloating of the Establishment Clause.
The New York Post had a brief piece a couple of days ago on the story that we posted about here involving the fight over equal access for religious groups to New York City public school buildings. The Post article contains a few additional details about the City Council’s vote (it was 38-11) as well as some political speculation and other odds and ends about the controversy. I am not sure what the piece means when it says that the Department of Education’s policy is “based on” New York State law. At least a substantial part of the legal defense is grounded in the First Amendment. It did come as news to me that the board’s policy “makes New York the exception among the nation’s 50 largest school districts.” (h/t our former guest, Ashley Berner).
Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.
I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.
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.
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.
The following style of argument has on occasion found favor with courts. The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause. And it appears to violate the Establishment Clause when it accommodates a religious group or organization — whether on equal terms with non-religious groups or not. For example, in the Second Circuit’s Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: “In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause.” Not only endorsement, but a “strong basis” for “concern” that there is endorsement — that is, the appearance of an endorsement — is constitutionally relevant. I have not been able to locate the phrase, “appearance of endorsement” in Justice O’Connor’s statements of her test, though I did find that precise language in Justice Souter’s concurrence in Capitol Square Review and Advisory Bd. v. Pinette.
I think the argument is utterly bogus. But I feel that way about many Establishment Clause standards and arguments. What makes this one particularly — uniquely — wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.
This reports states that Wednesday the Second Circuit Court of Appeals upheld Judge Preska’s preliminary injunction against the New York City Department of Education, preventing the City from excluding all groups (and not only Bronx Household of Faith) that engage in religious worship from using public school facilities after hours on equal terms with other groups. I have not been able to locate the order, so it is not clear to me how the reporter is getting the June end-date. For previous discussion of this issue, see here, here, and here.
If someone has access to the order, please let me know.
UPDATE: According to this report, the source of the June time-frame is this sentence in the Second Circuit’s order: “We hope and expect that the district court will render its conclusive, final judgment as soon as practicable, and no later than mid-June, so that the dispute can perhaps be concluded by the beginning of the next school term.”
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.
The Second Circuit Court of Appeals issued an order clarifying the scope of the TRO issued by the district court in the Bronx Household of Faith case. The order states:
We call to the district court’s attention an appearance of overbreadth of its order. The district court stated that it “issues a temporary restraining order enjoining defendants from enforcing” regulation D-180. As stated the order could be construed to enjoin the Board from enforcing its regulation not only against the plaintiffs, but also against non-parties as well. The Board has thus complained that, at the last minute, it is being required to process more than 23 new permit applications. This is a misunderstanding of the order. The order should be understood as enjoining the City from enforcing its regulation against the parties to the case—not as enjoining the City from enforcing its order against non-parties. The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties.
My understanding is that the plaintiff is challenging this regulation as being facially unconstitutional, so if it eventually prevails on the merits of that claim, that would prevent the City from enforcing the regulation against non-parties. But because at present this is only before the court on a motion for TRO, it applies only to Bronx Household of Faith, and the City is at liberty to throw everybody else out.