July 2, 2012

NEW YORK – The Federal District Court in New York issued a permanent injunction Friday, June 29, against the NYC Department of Education prohibiting its enforcement of a regulation forbidding the rental of school space after hours to religious organizations for the purpose of worship. The judge found the Department's policy to be in violation of both the Free Exercise and the anti-Establishment Clauses of the First Amendment.

The School Chancellor's Regulations for the rental of space after hours allows any community, nonprofit group to rent space for its charitable purposes, including fundraising. While allowing religious organizations to rent space for meetings, discussions, lectures, even prayer, the one exception in the Regulations prohibits "holding religious worship services, or otherwise using a school as a house of worship."

This is the third lawsuit which has been pursued by the Church, Bronx Household of Faith v NYC Board of Education, to assure its ability to use public facilities on the same basis as other community groups. The first was filed in 1995. In the first two cases, the Second Circuit Court of Appeals ruled against the Church, accepting the Board of Education's argument that it feared allowing the rental of school space for worship might violate the anti-Establishment Clause of the First Amendment. While finding that such use would, in fact, not violate the Constitution, the Court ruled that the fear was not unreasonable. In both cases, the U.S. Supreme Court denied certiorari, declining the hear the case.

Unlike earlier iterations of this case where the courts essentially ignored arguments based on the religious clauses of the First Amendment, focusing instead on forum doctrines related Free Speech, this time the religious clauses were front and center. Relying on several case precedents of the US Supreme Court, notably in Church of the Lukumi Babaloo Aye v. City of Hialeah (Florida) and in the recent decision in Hosanna-Tabor Church and School v. EEOC. Both precedents were decided by a unanimous Supreme Court.

In Lukumi, decided in 1993, the Court found that an ordinance forbidding animal killing but exempting virtually all reasons for killing except ritual sacrifice was an ordinance targeting religion and, therefore, an unconstitutional violation of the Free Exercise Clause. In Hosanna-Tabor, decided in January 2012, the Court found that government oversight of a church's decision with respect to the hiring and firing of its ministers violates the anti-Establishment Clause because of the entanglement created when the government usurps the church's decisions in matters religious or theological.

In Bronx Household. the District Court found that the Chancellor's Regulations specifically target a religious practice (worship) in violation of the Free Exercise Clause and, since the Department of Education must undertake to verify whether or not the activity of the religious tenant is worship, the Department necessarily must define "worship" in order to differentiate it from other permitted religious uses in violation of the anti-Establishment Clause.

The Queens Federation of Churches, along with other ecumenical partners including the Council of Churches of the City of New York, National Council of Churches, Brooklyn Council of Churches, and the American Baptist Churches of Metropolitan New York, joined an amicus brief prepared by the Christian Legal Society. That brief raised the very issues that were central to the District Court's ruling.

The City's Department of Education has announced that it will appeal this decision to the Second Circuit Court of Appeals. Ecumenical and denominational church bodies in the City are expected join again as friends of the court urging that religious liberty be upheld by the Courts.

Queens Federation of Churches