This is an interesting case from a few days ago, Bronx Household of Faith v. Bd. of Educ., in which a three judge panel of the Second Circuit upheld a local rule which prohibited outside groups from using public school facilities after hours for "religious worship services." Judge Leval wrote the main opinion, joined in concurrence by Judge Calabresi, and with Judge Walker dissenting. Two points in particular seemed interesting to me:
1. You might be wondering how the court managed to get around Good News Club v. Milford Central School. The New York City Department of Education makes its public school classrooms available as limited public forums to a variety of groups. Bronx Household of Faith, a Christian Church, applied to take advantage of one such space for its Sunday morning church service, stating that its services were to include "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies," followed by a "fellowship meal," during which attendees "talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other." Part of the procedural history of the case precedes Good News Club (also out of the Second Circuit), but as folks here at MOJ know well, Good News Club held that a public school district which operated as a limited public forum could not exclude a Christian group which sought space in order to teach young children (aged 6-12) about Christian morality (through the use of songs, prayer, story telling, and in other ways), because doing so was prohibited viewpoint discrimination (see also Lamb's Chapel and Rosenberger). This case has had a long and involved procedural history during which the Board of Ed.'s rule was gradually modified. But the upshot in this opinion is that Judge Leval held that "[t]he prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view . . . . While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion to God, and the singing of hymns, whether done by a person or a group, do not constitute the conduct of worship services. Those activities are not excluded."
I'm having some difficulty with this interesting argument but probably I just am not understanding it. It seems to be that the disorganized activity of "worship" would not itself be something which the district could prohibit consistent with Good News Club, but the "event" or "collective activity" of worship may be excluded. Judge Leval: "What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion." Granting use of the forum to an "organized religion," in the majority opinion's view, "has the effect of placing centrally, and perhaps even of establishing, the religion in the school." A bit of Protestant theology from the Second Circuit?
2. The other interesting feature is the use to which Judge Leval put the Establishment Clause. The district's exclusion of religious worship services was recognized as reasonable in light of its wish to avoid violating the Establishment Clause. Again, from Judge Leval's opinion: "In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause." And again, Judge Leval emphasized that worship services are a "core event in organized religion" and because the classroom "at least for a time, becomes the church," not only was it distinguishable from the Good News Club situation, but it also might well violate the EC for the district to permit such a use. Two other points made by the Judge: establishment concerns (filtered through the lens of a "perception of endorsement") are reasonable because (1) the availability to Christians on Sunday of the public school space is an unintentional bias in favor of Christian religions; and (2) the religious services of Bronx Household are not open on equal terms to everyone, since the Church holds that one must be baptized and not excommunicated in order to participate.
Judge Walker's dissent is also well worth reading for those who are interested.
Thursday, June 9, 2011
There is a lot to like about Republican presidential aspirant Herman Cain, the former CEO of Godfather's Pizza. He is genuinely pro-life and pro-marriage; he has personally triumphed over poverty and racism; he has extensive experience as an entrepreneur and businessman, and is credited with restoring a failing company to profitability. It is being reported, however, that in comments made to Glenn Beck, Mr. Cain said that though he would permit Muslims to serve in his administration, he would demand of them a degree of "loyalty proof" that he would not demand of Catholics, Mormons, and members of other faiths. If his words are being reported accurately, what he said is wrong, foolish, and unacceptable. It is disrespectful of Muslims, the vast majority of whom in our country are, as Cain himself seems to acknowledge, loyal, honorable citizens; and it is incompatible with a sound understanding of religious freedom (and with the spirit, if not the letter, of the Constitution's no-religious-tests clause). It puts Cain in a camp with Martha Coakley, the hapless Massachusetts Democrat who, when running against Scott Brown for the United States Senate, infamously said that devout Catholics should not work in emergency rooms inasmuch as they are unwilling to be involved in providing contraceptives and abortions. That is a place Mr. Cain surely does not want to be. Now is his chance to show that he is the kind of man who is willing to admit a mistake and make things right. I hope that he will reflect on what he said and, at the first possible opportunity, repudiate the idea that Muslim citizens are to be held to standards of "loyalty proof" higher than those to which other citizens are held. He should make clear that, if elected President, he will hold possible appointees to his administration to exactly the same standards, irrespective of their religious faith. That would be the right thing to do. It would, moreover, be the American thing to do.
