The Supreme Court's 2001 decision in Good News Club v. Milford Central School, which allowed an after-school religious group to meet in a public elementary school, seems almost directly related to the questions in the Bronx Household of Faith case, Tuttle said.
In his decision, Leval said the facts of the Bronx Household of Faith case differ significantly from the Good News Club and similar cases. "In each of those cases, the policy being enforced categorically excluded expressions of religious content," he wrote. "Here, by contrast, there is no restraint on the free expression of any point of view. Expression of all points of view is permitted. The exclusion applies only to the conduct of a certain type of activity—the conduct of worship services—and not to the free expression of religious views associated with it."
Like Good News Club v. Milford Central School, which also originated from the Second Circuit Court, the Bronx Household case may end up in the Supreme Court, said Jordan Lorence, senior counsel for the Alliance Defense Fund. The Bronx Household of Faith plans to appeal the Second Circuit ruling and submit it for reassessment by the full circuit court or the Supreme Court, he said.
While the case may reach the Supreme Court, there is little reason to think that the June ruling will mean a sweeping exit of churches from school buildings throughout the U.S., Colby said. "This is such a departure from the status quo, and because it goes against the status quo it is getting a lot of attention. But you find that often what is normative is right," she said. The Supreme Court has reprimanded the Second Circuit Court for ignoring precedent in the past, Colby said. "I wouldn't be surprised if the decision was instantly reversed just based on previous decisions."
Tuttle said that the widely uncontested presence of churches in U.S. public schools on weekends indicates that the Bronx Household of Faith probably isn't violating the Establishment Clause. "I wouldn't be surprised if the Supreme Court takes it, and if they take it, I wouldn't be surprised if they apply previous cases such as Good News Club and just say worship is religious speech, you're singling out speech for special disfavored treatment and that is viewpoint discrimination."
Leval disagrees. "We do not mean to imply that we think the Supreme Court somehow indicated in Good News Club that it would rule as we do on the exclusion of worship services," he wrote. "Our point is only that the Supreme Court has neither ruled on the question, nor even given any reliable indication of how it would rule."
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The New York Law Journal has more background on the case.
Previous Christianity Today coverage related to church and state conflicts, the nature of sacred space, and worship includes:
Should the China Ambassador Worship at a House Church? | Observers discuss whether the U.S. ambassador to China should worship at an unregistered church to 'publicly identify with the persecuted.' (May 31, 2011)
Economic Bell Tolls for Nation's Church Steeples | Steeples may have outlived their times as signposts. People hunting for a church don't scan the horizon; they search the internet. (May 5, 2011)
Share Sacred Spaces? | Observers discuss whether churches should lend worship space to other religions. (March 17, 2011)
The Trajectory of Worship | What's really happening when we praise God in song? (March 11, 2011)