NYC church policy challenged in court filing

WASHINGTON (BP) -- The New York City ban on religious worship in public schools violates both the free exercise of religion and the prohibition on government establishment of religion, a Southern Baptist entity and other groups contend in a friend-of-the-court brief filed in federal court.

"[T]he state has no power whatsoever to determine what constitutes 'religious worship' and 'religious worship services' and what does not." -– CLS/ERLC brief
The Ethics & Religious Liberty Commission joined local and national religious organizations in the April 20 brief that urges a federal court in New York to invalidate a Board of Education policy that bars churches and other faith groups from meeting in schools. The brief, written by the Christian Legal Society, also calls on the court to permanently block the policy from being enforced.

The U.S. Second Circuit Court of Appeals ruled last year that the ban was constitutional, affecting dozens of churches, including seven Southern Baptist congregations, that used public schools for corporate worship. Some moved their meetings to other facilities.

Some have been able to continue meeting in school buildings because of a Feb. 24 ruling by federal judge Loretta Preska of the Southern District of New York, which blocked enforcement of the ban while the case proceeds. The Second Circuit upheld the injunction five days later. The appeals court, however, urged Preska to release a final ruling by mid-June.

New York City's school policy infringes on the opening two clauses of the First Amendment, according to the brief signed onto by the Ethics & Religious Liberty Commission and other organizations. Those clauses say, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The policy "is not one that feigns neutrality on its face, hiding an ulterior purpose to target religious exercise," the brief says. "The Board's policy openly and notoriously singles out 'religious worship services' for exclusion from the public space that is otherwise available for other social and civic functions."

The brief contends a social function that includes the same attributes as a religious worship service -- such as singing, praying and speaking on "moral" topics -- would not violate the policy. "But once these activities are part of a religious event, they suddenly become outlawed," according to the brief.

The school board rule transgresses the First Amendment's establishment clause by trying to define religious worship, the brief says.

"The Board cannot get into the business of deciding what does and does not qualify as a 'religious worship service' without entangling itself in issues forbidden to its authority and without discriminating among religious organizations and beliefs," according to the brief.

For the last 60 years, the U.S. Supreme Court "has repeatedly instructed that the state has no power whatsoever to determine what constitutes 'religious worship' and 'religious worship services' and what does not," the brief says.

The brief also contends the use of public schools for worship does not constitute endorsement of religion when the Board of Education makes its facilities available to all groups. "The fact that more churches than mosques and synagogues use school facilities reflects simple demographics, not endorsement," according to the brief.

The policy also contradicts a long-held practice in American life, the brief contends. By singling out religious groups among all community organizations, it "is inconsistent with historical practice and threatens the equal access of religious observance to public space still common in our country," the brief says.

In addition to the ERLC, others signing on to the CLS brief are the National Association of Evangelicals, American Bible Society, National Council of Churches, General Conference of Seventh-day Adventists, American Baptist Churches of Metropolitan New York, Council of Churches of the City of New York, Brooklyn Council of Churches and Queens Federation of Churches.

The case is Bronx Household of Faith v. Board of Education of the City of New York.


Tom Strode is the Washington bureau chief for Baptist Press.

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