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New York - Appeals Court Hears Arguments Over Worship In Public Schools

Published on: November 20, 2012 02:39 PM
By: Reuters
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New York - A pending New York City regulation that bans worship services inside school buildings after-hours is an unconstitutional restriction on freedom of religion, the lawyer for a Bronx church argued before a federal appeals court on Monday.

It was the latest chapter in a nearly two-decade legal battle between the city’s Board of Education and religious groups, including the Bronx Household of Faith, over a city regulation barring groups from holding services in public schools.

“They’re focusing on a type of worship that is Judeo-Christian, and that is the type of religion being excluded,” Jordan Lorence, a lawyer for the Alliance Defense Fund, the Christian nonprofit representing the Bronx church, told a three-judge panel of the 2nd U.S. Circuit Court of Appeals.

The rule “prohibits school buildings from being used for religious worship services or as a house of worship,” although the city allows groups to use schools for non-religious activities. It was designed to ensure that the city does not appear to endorse religious activity in a public forum.

In June, U.S. District Judge Loretta Preska issued a permanent injunction against the regulation.

The church maintains that the rule specifically targets religion and must be justified by a compelling state interest.


The mere fear that allowing worship in a school might be perceived as endorsing religious activity is not enough, Lorence said at the hearing.

In addition, the rule permits some religious activity, including certain types of prayer, religious instruction and hymns. That would allow some religious groups to use schools for what is ostensibly worship, even though they don’t use that word to describe it, Lorence argued.


Jane Gordon, a lawyer for the city, countered that Preska’s freeze had left the Board of Education in the position of potentially violating the Constitution’s establishment clause, which separates church and state.

“The district court has put the department back between a rock and a hard place,” she said.

The city had set up procedures to ensure it would not become involved in defining whether a group’s activity constitutes worship, she said. At the same time, the city would take action if it became aware that a group was deliberately flouting the rule—for example, by advertising worship services at a school on its website.

“We have to be deferential to the Constitution and to religious rights, but we don’t have to be stupid,” she said.

The dispute has drawn the attention of activists on both sides of the issue, with groups like the American Civil Liberties Union filing amicus briefs in support of the city and the Becket Fund for Religious Liberty doing so on behalf of the church.

The litigation, which first began in the mid-1990s, has seesawed between Manhattan federal court and various appeals courts for years.

In 2007, Preska barred the city from enforcing the rule.

The 2nd Circuit in 2011 vacated the injunction, which was based on a free speech argument, finding that the rule was a content-neutral restriction to prevent the establishment of religion in a public school. The U.S. Supreme Court then declined to hear the case.

The church successfully persuaded Preska to issue a new ban in June, this time based on the claim that the rule violated the church’s right to free exercise of religion.

The judges on the panel Monday—Guido Calabresi, John Walker an Pierre Leval—were the same judges who ruled 2-1 to vacate Preska’s earlier injunction.

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Read Comments (5)  —  Post Yours »


 Nov 20, 2012 at 03:01 PM Facts1 Says:

Another one of Bloomberg HR"Y decrees.


 Nov 20, 2012 at 05:49 PM Read the article Says:

this is a Federal issue, not NY state. If you can't read, you shouldn't comment on this site.


 Nov 20, 2012 at 07:38 PM mottele Says:

This is a jewish site. If you can't be nice, you shouldnt comment on this site


 Nov 20, 2012 at 10:09 PM Remedial Reader Says:

Reply to #2  
Read the article Says:

this is a Federal issue, not NY state. If you can't read, you shouldn't comment on this site.

It is a New York City resolution, started well before Bloomy as an attempt by NYC Board of Ed to comply with Federal interpretation of constitutional law, which is now being challenged in Federal court. Nowhere does anyone say anything about NY State.


 Nov 21, 2012 at 08:49 AM lawschooldrunk Says:

#2, this has to be a New York issue because it was a certified question to the New York Court of Appeals. The issue happened to have been raised in a federal court with other federal issues.


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