2nd Circuit appears hesitant to let church use school after-hours
NEW YORK — A federal appeals panel signaled this week that it was leaning toward reversing a judge’s decision earlier this year that opened up New York City public schools to after-hours worship services.
The three-judge panel of the 2nd U.S. Circuit Court of Appeals had plenty of questions for both sides as the nearly 18-year-old case came before it for a fifth time, but two of three judges who ruled against the worship services once before seemed likely to do it again.
Judge Guido Calabresi told Bronx Household of Faith attorney Jordan Lorence that he was “troubled by your argument that the Constitution requires a city to allow a religion to do what you do simply because it is a religion.”
“That is a remarkable argument,” he told Lorence. “You want to do what goes beyond what everybody else does.”
Judge Pierre Leval questioned how the church could consider it discriminatory if it is prevented from staging its worship services as part of a city rule that bans worship services after hours throughout the schools for everyone.
The arguments came after the city appealed a ruling earlier this year by U.S. District Judge Loretta Preska in Manhattan that barred the city from enforcing the law.
The dispute has been bouncing around the courts for nearly two decades with the 2nd Circuit considering issues surrounding it on five separate occasions. The appeals court first considered the case 15 years ago, several years after the evangelical Christian church sued for the right to hold Sunday services in a public school.
For the last decade, Bronx Household has been conducting its services at a city school. City attorney Jane Gordon said nearly 100 permits last year had been requested for use of schools for religious services.
The same panel of judges, with Judge John Walker dissenting, ruled a year ago that letting schools be converted into churches on Sunday would violate the Constitution’s establishment clause, which bars Congress from making a law respecting an establishment of religion or prohibiting the free exercise of one.
The city rule does not exclude prayer, religious instruction, expression of devotion to God and the singing of hymns, whether done by a person or a group.
Calabresi said the distinction lets groups such as the Boy Scouts and other school or community groups engage in activities that are part of their mission, but it does not let churches establish schools as their base for worship services.
Lorence argued that it is impossible for the city to distinguish between what it allows and worship services. He said some religions do not have formal worship services and the rule discriminates against those who do.
Gordon told the judges that the city could distinguish between religiously oriented activities that are permitted and worship services by looking at materials the congregations publish, such as websites.
The appeals court did not immediately rule.