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Is a Worship Service Religious Speech or Religious Exercise?

by Kim Colby - Senior Counsel, The Center for Law & Religious Freedom

For three decades, the Free Speech Clause has done the heavy lifting to protect citizens’ reli- gious speech. But the Free exercise Clause, and even the establishment Clause, may again be drafted to pull their weight to protect religious speech from gov- ernmental censorship. The vehicle for this realignment may be the Bronx Household of Faith v. Board of Education of the City of New York, currently on its fifth appeal to the Second Circuit.1 Seventeen years ago, the Bronx Household saga— the closest thing religious liberty aficionados have to their own soap opera-- began when the New York City Board of education denied a small congregation’s re- quest to rent a neighborhood middle school for its Sunday morning meetings. The request presented the City with a win-win situation. if the request were granted, the congregation gained a place to meet while it acquired its own space, and the school district gained modest additional income. Unfortunately, the NYC Board of education quickly developed “establishmen- titis,” a frequent affliction, common to government of- ficials, of seeing establishment Clause problems where none exist.

1997 — Round One to the District

Granting equal access to a religious community group is not an establishment Clause violation. two years before the Bronx Household case began, in Lamb’s Chapel,² the Supreme Court had unanimously ruled against a different New York school district when it re- fused to rent a school auditorium to a church for eve- ning showings of a Dr. Dobson film series. The school district claimed the establishment Clause would be vio- lated if it rented to a religious community group, even though it rented space to other community groups. in a particularly virulent case of “establishmentitis,” the district claimed that it “denied use of its property to a ‘radical’ church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence.”³ But the Supreme Court instead accurately diagnosed the district’s fears as “viewpoint discrimina- tion” against religious speech because the district denied a community group’s discussion of family issues from a religious perspective while simultaneously permitting other community groups to discuss family issues from nonreligious perspectives. By recognizing the district’s hypochondria, the Court easily dismissed the district’s establishment Clause fears as “unfounded.”⁴

Lamb’s Chapel relied heavily on the 1981 Widmar holding that a public university violated the free speech rights of a religious student group when it excluded them from meeting on campus because their speech included religious worship and discussion. The Court found no reasonable establishment Clause justification for the university’s discriminatory treatment of religious speech.

For purposes of Bronx Household, Widmar⁵ carries additional importance because the Supreme Court re- fused to distinguish among types of religious speech and instead held that religious worship is protected by the First Amendment like other religious speech.⁶ The lone dissenter, Justice White, insisted that the issue was whether the university could “prohibit regular religious worship services in university buildings.”⁷ But the major- ity rejected any “attempt [at] a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious ‘speech acts,’ consti- tuting ‘worship.’” Such a distinction lacked “intelligible content.” When did “singing hymns, reading scripture, and teaching biblical principles cease to be singing, teaching, and reading—all apparently forms of ‘speech,’ despite their religious subject matter—and become unprotected ‘worship[?]’”⁸ The judiciary simply is not competent to administer such a distinction: government officials would have to “inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith.” Such govern- mental inquiries would create excessive entanglement.⁹ The Court hearkened back to a 1953 decision¹⁰ in which a city allowed religious “services” but not religious “ad- dresses,” a policy the Court held unconstitutional be- cause it was not “in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings.”¹¹

Ignoring such powerful precedent, in 1997, the Second Circuit upheld the school district’s policy. At the time, its policy allowed community groups broad access to school facilities for most uses, but prohibited “religious services or religious instruction,” although “religious material or material which contains a religious viewpoint” could be discussed.¹² The Second Circuit claimed that Widmar’s establishment Clause analysis was limited to the university context.¹³

2003 — Round Two to the Church

Four years later, the Supreme Court dropped “anvil- like hints”¹⁴ that the Second Circuit’s 1997 decision was wrong. in Good News Club,¹⁵ the Court trod familiar ground in ruling that a New York school district violated the free speech rights of a religious community group when it denied access to elementary school facilities im- mediately after school for the group’s religious meetings with children whose parents had given written permis- sion for them to attend the Good News Clubs. The meet- ings included Bible stories, prayer, and singing. The Court noted a circuit split “on the question whether speech can be excluded from a limited public forum on the basis of the religious nature of the speech.”¹⁶ Citing the 1997 Bronx Household opinion, the Supreme Court identified the Second Circuit as on the wrong side of the split.

encouraged by the Supreme Court’s dicta, Bronx Household decided to reapply for access, but was again denied. The Second Circuit agreed in 2003 that the Good News decision meant that the board’s ban likely was unconstitutional.¹⁷

As a result, for a decade, churches and other religious groups have rented school facilities for weekend and evening use throughout New York City. religious groups account for approximately 5% of the granted permits for all community groups’ use of NYC public school facilities.¹⁸ Some congregations rent because they are new, while others rent because they have outgrown their own property. Many congregations rent because they have been displaced temporarily by fire or flood. in the crowded and expensive New York City real estate market, the ability to rent school facilities is a godsend for many congregations.

2005 and 2011 — Rounds Three and Four to the DIstrIct

Undeterred, the district announced that it would modify its policy to read: “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”¹⁹ Bronx Household was told that the new policy prohibited its use because it was holding “religious worship services.”

Because of the 2003 injunction, the new policy was not enforced while the parties moved for summary judgment. The district court twice enjoined the policy as viewpoint discriminatory, but the Second Circuit re- versed both times.²⁰ over Judge Walker’s strong dissent, the Second Circuit applied rational basis scrutiny to find that the policy did not violate the church’s free speech right. Validating the district’s extreme “establishmentitis,” the Court accepted its fear of possibly being perceived to violate the establishment Clause to justify its denial of access.

Waxing metaphysically, the court explained that “[w]hen worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school” but “has, at least for a time, become the church.”²¹ Thus, “religious worship services” could be excluded, although the panel suggested that perhaps “worship” itself might be protected,²² because “[t]here is an important difference between excluding the con- duct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”²³ religious groups could “express religious devotion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine,” because “only the per- formance of a worship service . . . is excluded.”²⁴

Such distinctions, of course, are meaningless as a practical matter—and completely contrary to the Supreme Court’s Widmar holding. Nor did the Second Circuit explain how government officials could distinguish “religious worship services” from “religious devo- tion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine.”

Unfortunately, the Supreme Court does not exist to correct rogue courts’ errors in applying its decisions. When the Court denied the church’s petition in December 2012, the case seemed finally over.

2012—Round FIve to the Church (so far)

But like a litigious cat, Bronx Household began its fifth “life” in January 2012, when the Supreme Court issued its ruling in Hosanna-Tabor,²⁵ which prohibited the federal government’s interference with churches’ employment decisions regarding leadership, even when the interference takes the form of enforcing neutral, generally applicable nondiscrimination laws. Unanimously, the Court held that the Free exercise and establishment Clauses protect a church’s internal governing decisions from governmental interference.

In June 2012, in response to the church’s motion, the district court determined that the church’s free exercise and establishment claims survived the Second Circuit’s denial of the free speech arguments.²⁶ The district court found that the policy banning “religious worship services” violated the church’s free exercise rights because the policy was not facially neutral toward religion. Nor was the policy applied in a generally applicable manner, as required by the Free exercise Clause. The establishment Clause was violated in two distinct ways. First, the policy would inevitably favor denominations with less structured worship services over those denominations with highly formal services. Second, government officials would inevitably become entangled in church doctrine by trying to determine what is, and is not, a “religious worship service” —a highly theological determination and a role the establishment Clause forbids to the government.

on November 19, the Second Circuit heard oral argument. The Supreme Court’s decision in Hosanna- Tabor and the district court’s thoughtful and thorough opinion give the court of appeals another chance to get it right by simply ruling that a policy that singles out “religious worship services” is a plain violation of the establishment Clauses’ requirement that the govern- ment behave neutrally toward religion, and the Free exercise Clause’s requirement that government not tar- get a religious practice for discriminatory exclusion.

Is a worship service religious speech or religious exercise? Yes.

Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous ap- pellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.

Endnotes

¹Bronx Household of Faith v. Board of Education of the City of New York, 2012 Wl 2509918 (S.D.N.Y. 2012), appeal filed No. 12-2730 (2d Cir. 2012).

²Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).

³Id. at 395-96, citing the Brief for respondent Center Journal of Christian Legal Thought Moriches Union Free School District, et al., at 4–5, 11–12, 24.

⁴Id. at 395.

⁵Widmar v. Vincent, 454 U.S. 263 (1981).

⁶Id. at 269.

⁷Id. at 283 n.1 (White, J., dissenting) (emphasis added).

⁸Id. at 269, note 6.

⁹Id. See also, id. at 272 n.11.

¹⁰Fowler v. Rhode Island, 345 U.S. 67 (1953).

¹¹Id. at 70.

¹²Bronx Household of Faith v. Community School District No. 10, 127 F.3d 207 (2d Cir. 1997).

¹³By 1997, the Supreme Court had added two ad- ditional cases to its “religious speech” repertoire, both holding that the establishment Clause was not violated by the Free Speech Clause’s equal access requirement. Rosenberger v. University of Virginia, 515 U.S. 819 (1995); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995).

¹⁴The term is that of Jordan lorence, who has repre- sented Bronx Household of Faith throughout the litigation.

¹⁵Good News Club v. Milford Central School, 533 U.S. 98 (2001).

¹⁶Id. at 105.

¹⁷Bronx Household of Faith v. Board of education of the City of New York, 331 F.3d 342 (2d Cir. 2003) (grant- ing preliminary injunction). The history of the litigation is most recently recounted in Bronx Household,

¹⁸855 F. Supp.2d 44, 47-49 (S.D.N.Y. 2012).

¹⁹2012 Wl 2509918, *11 (S.D.N.Y., June 29, 2012).

²⁰855 F. Supp.2d at 48 (emphasis added). Bronx Household of Faith v. Board of Education, 492 F.3d 89 (2d Cir. 2007) (per curiam) (vacating injunction on ripeness grounds); Bronx Household of Faith v. Board of Education, 650 F.3d 30 (2d Cir. 2011) (vacating injunction).

²¹Id. at 41.

²²Id. at 36 n.6.

²³Id. at 37 (original emphasis).

²⁴Id. at 38.

²⁵Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, --- U.S. ---, 132 S. Ct. 694 (2012).

²⁶2012 Wl 2509918, *11 (S.D.N.Y., June 29, 2012).