Stones Cry Out

The three judges on the United States Second Circuit Court of Appeals panel who heard a Bronx congregation's challenge to the policy each issued a separate opinion. One judge of Bronx House hold of Faith v. Board of Education ruled in favor of the church; another decided in favor of the Board of Education's anti-church policy; a third found the case was not yet ready for review. As a result, the church may continue to use the school building pending further appeal.

The case likely prompted such division because of the question, more theological than legal, at its center: What is worship? The legal significance of the question hangs on a 2001 ruling by the U.S. Supreme Court, in which the court held that schools allowing use of their campus after hours by secular groups could not then exclude religious groups from conducting religious instruction or discussion on school grounds.

But in the 2001 case, Good News Club v. Milford Central School, the federal high court appeared to draw a distinction between religiously oriented lessons and outright worship, leaving it to federal judges across the country to grapple with whether schools were permitted to ban on-campus worship services. Ruling that such blocks are legally permissible a judge on the Second Circuit panel nominated by President Clinton, Guido Calabresi, declared worship to be a form of speech incomparable to all others. By separating out all worship, Judge Calabresi, concluded that the Board of Education's policy against it does not discriminate against a particular viewpoint — which would be unconstitutional under the First Amendment — but instead justified the Board's content-based distinction.

A second judge, John Walker Jr., who was nominated by President George H.W. Bush, rejected that distinction and accused Judge Calabresi of relying "more on judicial legerdemain than judicial reasoning." "The fact is," Judge Walker wrote, "that none of us who are judges are competent to offer a legal definition of worship." Judge Walker said that the Board of Education could not prohibit congregations from gaining access to public schools for worship without violating their First Amendment rights.

Although vehemently opposed to Judge Calabresi's outcome, Judge Walker seems hesitant of his own conclusion, writing his approach is "admittedly imperfect in this uncertain legal terrain." The dispute could, Judge Walker wrote, "benefit from a more conclusive resolution" by the Supreme Court.

New York City's policy prohibits churches from using public school buildings for worship services. Bronx Household of Faith had filed suit in order to continue to meet in the school. The central question is whether the church's use of the school violates the Establishment Clause of the First Amendment.

The Establishment Clause states the following: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". At first blush, the language appears fairly plain. Permitting a church to meet in a school does not equate to establishment of religion since there is no specific requirement for citizens to participate in worship at that church or become a member of the church. But given the convoluted rulings that have come down from the Supreme Court recently particularly in these types of cases, it's entirely possible that the Court will uphold the city ordinance.

Although the ruling from the 2nd Circuit fails to resolve the issue, Judge Walker is correct in that more guidance is needed from the Court in order to decide the issue at hand. It will be interesting to see whether the Court decides to hear the case and use it to provide some clarity for Establishment Clause cases. Given the rulings handed down at the end of the current term, it's more likely that they will hand down a ruling in favor of the church without addressing the fundamental flaws of the relevant precedent cases.