In Bronx Household of Faith v. Board of Education of the City of New York, the Second Circuit issued an opinion that directly contradicts the last thirty years of Supreme Court precedent, takes away a vast amount of legal protection for religious speech, and I guarantee will make every Christian scratch his or her head, and mutter, “What in the world were they thinking?”
Let me give you a little context.
In 1994, the Bronx Household of Faith, a church in New York City, sought to meet in a public school facility. These public facilities were open to almost any group in town. In fact, the School Board’s policy stated that school facilities were open for “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community ….”
You want to meet to talk about the importance of comic books in a civilized society? Fine, come on over. You need a room to discuss the importance of beetle dung to our environment? Use room 100. Come one, come all.
Well, not really all. You see, not all groups were welcome. While the School allowed essentially any and every use of its facilities, School policy prohibited the use of school property for “religious services or religious instruction.”
Consequently, the School denied the Bronx Household of Faith the right to use school facilities on the same terms and conditions as others.
I am sure you have heard this same sad story before. It is as old as “boy meets girl.” Unfortunately, governing bodies have attempted to suppress religious speech for several years. But thankfully, courts, including the U.S. Supreme Court, have consistently rejected these efforts by governing bodies to treat religious people as second class citizens.
For example, in 1981, the Supreme Court rejected in Widmar v. Vincent, a university’s attempt to prevent a student organization from using an open forum to hold meetings, similar to those at issue in Bronx, that included “prayer, hymns, Bible commentary, and discussion of religious views and experiences.”
In Lamb’s Chapel v. Center Moriches Union Free School District, a 1991 decision, the Supreme Court struck down a school policy that allowed essentially all community groups to access school meeting rooms, but prohibited religious views from being presented in those rooms.
And in Good News Club v. Milford Central School District, a 2001 case, the Court held that it was unconstitutional for a public school district to exclude from its facilities “a private Christian organization for children,” which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray.
All of these cases were decided based on the theory that prohibiting prayer, religious devotion and religious instruction is nothing more that viewpoint based speech discrimination. And our constitution prohibits speech restrictions that are based on the views of the speaker.
But this long line of cases did not dissuade the School Board from attempting to prohibit the Bronx Household of Faith from accessing its facilities. Instead, it amended its policy to exclude “religious worship services” and again denied them access.
And the Second Circuit, despite all the cases prohibiting governing bodies from denying religious groups access to public facilities, agreed with the School. According to the Second Circuit, a policy prohibiting religious worship services is not a prohibition on religious instruction or religious devotion.
This was a head scratcher. How can a policy that prohibits religious worship services not be a policy that also prohibits religious instruction and religious devotion? I have been attending church all of my life, and this reasoning just did not make any sense. Every single service I have ever attended consisted exclusively of religious devotion and religious instruction. Except for an occasional announcement, a religious worship service is religious instruction and devotion.
Pray tell (pun intended), will someone please tell me what a worship service is, then, if it is not religious instruction or religious devotion?
The Second Circuit offered up its definition of a religious worship service. The Court began by saying the “religious worship services” clause does not purport to prohibit use of the facility by a person or group of persons for “worship.”
OK, now I am more confused. So you can use the rooms to worship. You just can’t hold a worship service. Then what is prohibited? The Second Circuit went on:
“What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion.”
Oh that clears it up! So if your religious meeting is organized, done repeatedly, and supervised by a pastor, though not necessarily, then it is a worship service.
The problem with this definition of worship service is that it also describes the use of school facilities in virtually every other access case already decided by the Supreme Court. This definition fits the use of facilities in Lamb’s Chapel, Widmar, and Good News Club just as accurately as it describes any other church service. In Good News Club, the religious meetings were done according to an order established by a religious organization, often a church. It was a collective activity as the meetings were regular. It was organized. And in many Good News Clubs, the person running the club was also a pastor at a local church. In fact, many Good News Clubs are church run.
Furthermore, this definition is not a real accurate description of contemporary worship services. The more church services I attend, the more I realize this – there is no set order for church services. Some have an offering in the middle of the service. Some have it at the end. Some have a sermon in the middle. Some have it at the end. Some mix it up every week.
Some follow a strict liturgy that has been used by churches for 2,000 years. Some make it up right before the service. I even attended one service that lasted 4 hours and had absolutely no direction to it. It just consisted of people praying and singing. Many modern services only have two items on the agenda – half hour of music and a half hour of preaching. In case you missed it, that would be a half hour of religious devotion and a half hour of religious instruction.
Oh wait, but that is exactly what the Second Circuit said it was not prohibiting. OK, now I am really confused.
The court then went on to explain, “There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.” The court then explained that prohibiting worship services is akin to prohibiting “livestock shows” and “horseback riding.” I swear I am not making this up. The court said that the school could prohibit such shows, even though undoubtedly during the shows, people would be expressing pro-animal viewpoints.
Thus, according to the court’s logic, prohibiting livestock shows within school buildings is not viewpoint discriminatory even though people would be expressing pro-livestock views during the shows. In the same way, prohibiting worship services is not viewpoint discriminatory even though during the worship service, people would undoubtedly express religious views.
I hope I am not overstating the obvious when I say that there is a slight difference between prohibiting horseback riding and livestock shows in a public school facility and prohibiting a church service. In one, you are clearly worried about the damage to the carpet that is irrespective of the speech. But in the other, the entire activity consists of speech.
And if this distinction between suppressing religious views and prohibiting worship services seems terribly confusing to you, you are not alone. In Widmar, the Court struck down an attempt by the university to justify its discrimination against religious speech by creating “a new class of religious speech act[s] constituting worship.” The Court explained that this proposed distinction lacked “intelligible content” and would not “lie within the judicial competence to administer.”
The bottom line for pastors and church leaders here is that this fight is not over. We are appealing this decision, and the United States Supreme Court will likely have the final say. This opinion, that hurts all religions and faiths, must not stand. But as for now, remember, you can worship in school facilities, you can meet in school facilities to engage in religious instruction and devotion, you just can’t hold a worship service.
If this makes sense to you, then between the two of us, that makes one.
This post originally appeared here.