Sunday, June 12, 2011

Sunday School: Second Circuit Upholds Ban on Use of School Property for Religious Service

Katherine Stewart's op-ed in the NYT urges New York City to permanently ban churches from using schools for Sunday religious services.  Stewart describes her own experiences, including her attendance at a church service at her daughter's school in Manhattan. The_Bronx_borough,_New_York

She concludes:

I could go on about why my daughter’s photo should not be made available for acts of worship, or why my P.T.A. donations should not be used to supply furniture for a religious group that thinks I am bound for hell, or why in a city blessed with an uncountable number of faiths it’s foolish to get schools tangled up in religion. But maybe it’s just that I imagine that that big red door is about education for all, not salvation for a few. Sometimes a building is more than a building.

As Stewart notes, earlier this month the Second Circuit upheld a Board of Education rule that prohibits outside groups from using school facilities after hours for “religious worship services.”  In a split panel opinion in Bronx Household of Faith v. Board of Education, the court held that a "religious service" is an activity not a belief and therefore there is not viewpoint discrimination under the speech clause, and that avoiding Establishment Clause problems supports the content-based discrimination.

Interestingly, the "Sunday" use of public schools is also pertinent.  As the court observed:

the fact that school facilities are principally available for public use on Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as the principal day for worship services. Jews and Muslims generally cannot use school facilities for their services because the facilities are often unavailable on the days that their religions principally prescribe for services. At least one request to hold Jewish services (in a school building used for Christian services on Sundays) was denied because the building was unavailable on Saturdays. This contributes to a perception of public schools as Christian churches, but not synagogues or mosques.

As Howard Friedman over at Religion Clause notes, this is fourth time the Second Circuit has been "presented with the dispute involving attempts by Bronx Household of Faith to use school space for its Sunday worship services."

It is likely not to be the last.

RR

http://lawprofessors.typepad.com/conlaw/2011/06/sunday-school-second-circuit-ban-on-use-of-school-property-for-religious-service-.html

Cases and Case Materials, First Amendment, Religion, Speech | Permalink

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