April 12, 2014

​NYC Churches Again Suffer Court Setback

BY TOM STRODE ©2014 Baptist Press

of churches stand to lose their meeting places in New York City public schools
after another unfavorable court ruling.

The U.S. Second Circuit Court of Appeals again upheld Thursday (April 3) a
policy that bars worship services in the city's schools, saying the rule does
not violate the First Amendment protection of religious liberty. The latest
opinion in a nearly 20-year court case enables, though it does not require, the
city's Board of Education to evict maybe as many as 80 congregations that use
school facilities for corporate worship.

Bronx Household of Faith, the church involved in the lawsuit, is considering
whether to appeal to the U.S. Supreme Court or beyond the three-judge panel
that made the decision to the full appeals court, its lawyer said.

The heads of the Southern Baptist Convention's religious freedom and North
American missions entities registered their disagreement with the ruling.

"The court system's capricious and bizarre mistreatment of churches is an
atrocity," Russell D. Moore, president of the Ethics & Religious
Liberty Commission (ERLC), said. "Church plants, operating within the
rules and doing nothing to disrupt others, have been tossed about by the courts
on the question simply of whether they can rent facilities in which to

Kevin Ezell, president of the North American Mission Board (NAMB), said,
"This decision will have a negative impact on all faith groups that often
make use of public spaces. These groups pay to rent the space. We are not
asking anything for free. I believe the Second Circuit Court of Appeals and New
York City government officials have made a poor decision that ultimately
conflicts with the U.S. Constitution and will be overturned.

"In the meantime, we will do everything we can to be sure New York City
residents will be able to worship freely near their homes," Ezell said in
a written statement.

NAMB has no record of Southern Baptist churches now meeting in New York City
schools, but seven reportedly were using city school facilities as recently as
2012. About 80 congregations regularly use school buildings for worship
services, according to a court filing by the city in 2012, The New York Times reported.

The Board of Education's policy prohibits "religious worship
services" or using a school building as a "house of worship"
outside normal hours, even though it permits individuals and other
organizations to use the facilities for activities. The rule, however, allows
religious groups to use schools "for prayer, singing hymns, religious
instruction, expression of religious devotion, or the discussion of issues from
a religious point of view," according to the Second Circuit Court.

In a 2-1 decision, the Second Circuit panel ruled the policy infringed upon
neither of the First Amendment's religion clauses -– the right to exercise
religion freely and the ban on government establishment of religion.

"There is not a scintilla of evidence that the Board [of Education]
disapproves of religion or any religion or religious practice, including
religious worship services," judge Pierre Leval wrote for the majority.
"Its sole reason for excluding religious worship services from its
facilities is the concern that by hosting and subsidizing religious worship
services, the Board would run a meaningful risk of violating the Establishment
Clause by appearing to endorse religion."

In dissent, judge John Walker said it was an "easy call" to conclude
the board's policy is not neutral. He rejected the majority's opinion that the
government would be subsidizing religion if it permitted worship services in
its school. The board "charges the same rate to all organizations using
its facilities," he said.