Must Public Schools Allow Worship if They Allow Social and Civic Meetings?
A New York Federal Court Says Yes, But The Establishment Clause Says No

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Dec. 01, 2005

This week, a Southern District of New York federal judge issued an important - and wrongheaded -- decision, in the case of Bronx Household of Faith v. Board of Education of the City of New York. It held that the New York public schools may not prohibit the use of their buildings for weekly, full-scale, year-round worship services - occurring every Sunday from 9 a.m. to 2 p.m. In other words, if they were going to permit any other groups to use the premises, they had to permit a church to make its buildings into the church's house of worship.

This decision was based on a doctrinal mistake - one that Justice O'Connor never made, but that Judge Alito, who may now replace her, has embraced over his career. Thus, the Bronx Household decision, important in itself, may also indicate the kind of reasoning Alito, as a Justice, might employ.

The Reasoning of the Bronx Household Decision

The crux of the decision was that the school district was engaging in "viewpoint discrimination" - forbidden by the First Amendment's free speech clause -- if it forbade the use of its buildings for worship, but permitted it for "social, civic, and recreational meetings." Religious speech and secular speech, the court indicated, must be treated alike - and would not be, if the Sunday meetings were prohibited.

This reasoning, on its own, is shaky: The record, as summarized by the Court, does not indicate that any other organization uses the building as often, and for as many hours, as the church did. Nor does the decision come to terms with the reality, which is that this church appears to have decided to make a public school its permanent house of worship.

What is next? Will the Supreme Court be turned into the Cathedral of the Supreme Court on those days when oral argument is not being held? The Supreme Court, after all, does permit its ceremonial rooms to be used for various organizations.

The Supreme Court Precedents That Convinced the New York Federal Court

The district court judge in the Bronx Household case followed two key Supreme Court precedents. Both embrace the speech-equality principle, which demands that secular and religious speech be treated alike.

In 1995, the Supreme Court held in Rosenberger v. University of Virginia that a college Student Activities Fund had to give out its money equally to secular and religious organizations.

Then, in 2001, the Court held in Good News Club v. Milford Cen. Sch. that schools may not exclude religious viewpoints from student activities. Thus, the Court held, a Christian afterschool club for children had to be allowed to conduct weekly afterschool meetings at a public school.

But two other Supreme Court decisions cut the other way. In 1992, in Lee v. Weisman, the Court held that a school may not endorse religion by hiring clergy to deliver a prayer at graduation. The reason was that the students who did not share the religious views of the clergy member would be made to feel disenfranchised.

And in 2001, in Santa Fe Independent School District v. Doe, the Court forbade another kind of endorsement of religion: permitting students to say prayers over the loudspeaker at football games. The evil of this endorsement, just as in Lee, is the feeling of disenfranchisement inspired in non-worshipping students (or those who feel compelled to pray along with the leader).

These cases turn on a factual question: whether students would view the religious activity as being endorsed by the school. In the Bronx Household case, there were facts suggesting students would view the Sunday worship just this way: The meetings had been going on for two years, showed no sign of stopping, and were accompanied by proselytizing.

In sum, the Church was a fixture at the public school - and so were its recruitment efforts. It would have been surprising if students had thought that the school did not endorse the Church.

For these reasons, the court should have allowed the school to forbid the Church's Sunday worship from taking place in public school buildings - even though it was required to permit children to have religious clubs that meet after school. The Establishment Clause always rests on nuances in the facts, and the distinction between the two scenarios is no fine point.

The Church-Planting Movement: A Threat to the Establishment Clause

The Establishment Clause, first and foremost, is a mechanism by which the United States keeps the balance of power between church and state - to retain the vitality of each. Neither is supposed to be able to overpower the other, or to turn the other to its own advantage. But in this case, an evangelical movement - the record showed - has embarked on a systematic campaign to exploit public buildings for its own purposes.

The movement is known as "church-planting," and the idea behind it is that churches will be "planted" in public buildings, where they will "grow." Rather than financing their own houses of worship, church-planting religious organizations seek to employ public locations for their weekly services. In some circumstances, they take over the school for much of the weekend. In the Bronx Household of Faith case, the record also indicated an intention to use every public school building possible in this way.

Church-planting not only saves churches the money that it would take to invest in their own bricks and mortar, but also gives them proximity to public school students (and families) - and thus a launching pad to find converts. It also allows churches to fight what they view as the "secularization" (that is, the Constitutionally-mandated inclusion of all faiths) in the public schools.

Public schools are supposed to be havens for all believers. They are the gathering point for the citizens of the United States. One can only imagine the feeling of disenfranchisement engendered in the children of atheists, agnostics, Buddhists, or even mainstream Protestants, when they learn that their school building is the house of worship for those who view their beliefs as false, and thus feel the compulsion to convert them.

The Bronx Household case harnessed each school's children to the political aspirations of a few churches. It did not vindicate the rights of free speech, but rather permitted a new - and admittedly clever -- variation of the establishment of religion.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).