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The Bronx Household of Faith, a New York City Conservative Congregational church, is between buildings. After meeting in a coffee shop, city apartments, and most recently the auditorium of the Bronx's P.S. 15, a K-8 public school, the church is constructing its first permanent meeting space. But that space has yet to be completed. For now, the congregation, which has been a "church without walls" since the 1970s according to its website, is at the center of a debate over whether churches have a constitutional right to meet in public schools.

In a June 2 decision, the U.S. Court of Appeals for the Second Circuit ruled 2-1 that the New York City Department of Education can bar churches from renting school facilities for worship services. The decision overturned a 2002 lower court ruling that allowed the congregation, in addition to nearly 60 other churches, to conduct worship services in school buildings.

Second Circuit Judge Pierre N. Leval cited the First Amendment's prohibition on establishing religion as the impetus behind the decision. "The church has made the school the place for the performance of its rites, and might well appear to have established itself there," he wrote. "The place has, at least for a time, become the church."

Judge John Walker dissented, writing in a 28-page response that "such an argument—that somehow a neutral forum is physically (or perhaps metaphysically) transformed into a non-neutral forum by the private activity undertaken there—has the feel of rhetoric." Walker said that the court's decision indicated viewpoint discrimination: "Bronx Household's services do not convert P.S. 15 into a church any more than the Boy Scouts' meetings convert it into a Boy Scout lodge."

The ruling raises questions about the nature of worship services, particularly to what degree they transform the space compared to the activities of other private groups. Kim Colby, senior counsel for the Christian Legal Society, said that historically, when it comes to free speech protection, there is no legal difference between church gatherings and other private meetings. Colby cited Widmar v. Vincent (1981), in which the Supreme Court ruled that the First Amendment's guarantees of free speech protect students who want to hold worship services on a public university campus. "There is no indication when '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,'" the court said.

Colby said that while there may be fundamental distinctions between religious speech and nonreligious speech, the Second Circuit Court's desire to parse these differences legally is an anomaly. Defining the differences between "religious worship" and "religious worship services" in a court of law would invite entanglement and viewpoint discrimination because of variances in perceptions of worship among different religious backgrounds, she said. "What Quakers consider worship is different from what Catholics consider worship, and liturgical rites are often very similar to academic practices in appearance."

Despite the unclear nature of worship activities, Robert Tuttle, professor of law and religion at George Washington University, said that "the real key to this case is just the idea that there would be an Establishment Clause decision, because it's at that point that the city just doesn't have a plausible argument. … There is no way that accommodating religious groups on an equal basis of using schools over the weekend could be construed as government establishment."

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June (Web-only) 2011, Vol. 55

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