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Here's what you can do in a New York City public school after hours: You may gather people together once a week (or more often). You can start off with praise choruses and Bible reading. Someone can stand up and teach that Jesus is Lord, that he rose from the dead to save us from sin, and that he is coming again. Then you can break bread and pray together.

Here's what you can't do in a New York City public school after hours: Hold a "religious worship service."

Got it? To the U.S. Second Circuit Court of Appeals, the distinction is clear. "A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church," the court ruled last June. And if New York City's Department of Education wants to bar "religious worship services," it can do so without violating the Constitution, the court said.

But as Park Slope Presbyterian Church senior pastor Matt Brown told The New York Times, "I would love to know who at the Board of Education is theologically capable of making those decisions" about what's an unacceptable worship service and what's a religious meeting protected by the First Amendment.

The Supreme Court has repeatedly ruled that if the government opens the door to one outside group, it has to open it up to others without discriminating against viewpoints—even religious ones. It's a principle based more in the First Amendment's protection of free speech than of the free exercise of religion. The Second Circuit tried to get around this principle by saying the Board of Education rule bars only an activity (worship services), not a viewpoint.

Observers had expected the Supreme Court to point to a 1981 decision striking down a state university's ban on students using campus ...

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In the Magazine

February 2012

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