By Rich Bockmann
The status of religious groups that hold services in Queens public schools after hours took another turn in a nearly 20-year-old legal battle when an appeals court last week upheld the city’s ban on renting space for worship.
In a split decision, a panel of three judges on the 2nd Circuit Court of Appeals overturned a 2012 ruling made by Manhattan District Judge Loretta Preska that found the city Department of Education’s policy on renting space to community groups at the end of the school day and on weekends — but prohibiting worship — was unfairly discriminatory.
The ongoing legal battle, which was originated by a Bronx church in 1996, focuses on the freedom of religion and the constitutional prohibition on establishing or endorsing a religion. The case has bounced around the courts for years, but church groups have been able to rent space in schools on the back of an injunction ordered in 2002.
During his campaign, Mayor Bill de Blasio said he would look for a more equitable policy toward renting space and is reportedly now saying he will reverse the current policy.
The Rev. Skip L’Heureux, executive director of the Queens Federation of Churches, has long been a supporter of the Bronx Household of Faith’s lawsuit, and said the appeals court’s decision was not unexpected.
“In some ways it’s not surprising,” he said. “The fundamental issue is that the government — properly — does not want to endorse, support religion. But it also does not want to discriminate.”
In the majority decision, Judges Pierre Leval and Guido Calabresi wrote that the lower court’s ruling would compel the city to guess which way the Supreme Court would decide the case, and a wrong guess could lead to extensive violations.
“Such a rule would be exceedingly unfair to the [city],” Leval wrote. “In our view, the better rule allows the [city], if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of the Establishment Clause by hosting and subsidizing the conduct of religious worship services, to decline to do so.”
In his dissension, Judge John Walker noted that out of the 50 largest school districts in the country, the city is the only one to exclude religious worship.
“Of course, the status quo does not ipso facto render government action constitutional, but it bears on whether the city’s position is a reasonable one,” he said. “It is striking that none of these other school districts appear to have the slightest concern about violating the Establishment Clause, nor have any of their community use policies been found to violate the clause.”
Lawyers for the Bronx church that brought the suit said they will request the appeal be brought before all 12 judges of the 2nd Circuit to be reconsidered.
Reach reporter Rich Bockmann by e-mail at rbockmann@cnglocal.com or by phone at 718-260-4574.
