The Bronx Household, et al v. Board of Education, et al
Filing
131
OPINION and ORDER granting 114 Motion for Preliminary Injunction. For the foregoing reasons, Plaintiffs Motion for Preliminary Injunction [Dkt. No. 114] is GRANTED. Defendants are enjoined from enforcing Ch. Reg. D-180 § I.Q so as to deny Plaintiffs application or the application of any similarly-situated individual or entity to rent space in the Boards public schools for morning meetings that include religious worship. (Signed by Judge Loretta A. Preska on 2/24/2012) (mph)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----- ---------- x
THE BRONX HOUSEHOLD OF FAITHI
ROBERT HALL and JACK ROBERTS I
01 C
. 8598
(LAP)
I
Plaintiffs l
OPINION AND ORDER
against-
USDCSDNY
DOCUMENT
ELECfRONlCALLY FILED
BOARD OF EDUCATION OF THE CITY OF
NEW YORK and COMMUNITY SCHOOL
DISTRICT NO. 10
1
Defendants.
-----
OOC #:
----x
I
DATE FILED: :;. J:t4'1 J2
LORETTA A. PRESKA I Chief United States District Judge:
The Bronx Household of Faith l Robert Hall l and Jack
Roberts ("
aintiffsll) are once again before this Court seeking
a preliminary injunction against the Board of Education of the
City of New York (the "Board ll ) 1 and Community School District No.
10 (collectivelYI
"Defendants ll ) so that Plaintiffsl Church may
continue to hold Sunday religious worship services in a New York
City public school
I
as it has done without interruption since
this Court issued an initial preliminary injunction in 2002
barring Defendants from enforcing a regulation that would
prohibit
aintiffs from conducting their
services in the Board's schools.
igious worship
In November 2007, this Court
made the preliminary injunction permanent and granted
Not so far into this litigation the Board of Education was
renamed the Department of Education. While this opinion remains
thful to the captioned name, references to the Board should
be treated as synonymous with the Department of Education.
1
Plaintiffs’ motion for summary judgment.
On June 2, 2011, the
Court of Appeals reversed summary judgment and vacated the
permanent injunction.
After the Supreme Court denied
Plaintiffs’ petition for certiorari, the Court of Appeals issued
its mandate on December 7, 2011.
For the reasons stated below,
Plaintiffs’ latest request for a preliminary injunction is
GRANTED. 2
2
The Court has considered the following submissions in
connection with Plaintiffs’ motion: Memorandum of Law in Support
of Motion for Preliminary Injunction; Defendant’s Memorandum of
Law in Opposition to Plaintiffs’ Motion for Preliminary
Injunction; Reply Brief in Support of Plaintiffs’ Motion for
Preliminary Injunction; Defendants’ Sur-Reply Memorandum;
Declaration of Robert G. Hall, Co-Pastor of the Bronx Household
of Faith, in Support of Plaintiffs’ Motion for Preliminary
Injunction, dated February 2, 2012 (“Hall Decl.”); Declaration
of Christopher F. Dito, Pastor of International Christian Center
South, in Support of Plaintiffs’ Motion for Preliminary
Injunction, dated February 2, 2012; Declaration of Caleb Clardy,
Pastor of Trinity Grace Church, in Support of Plaintiffs’ Motion
for Preliminary Injunction, dated February 3, 2012; Declaration
of Bo Han, Board Member of New Frontier Church, in Support of
Plaintiffs’ Motion for Preliminary Injunction, dated February 3,
2012; Declaration of Brad Hertzog, Pastor of Reformation
Presbyterian Church, in Support of Plaintiffs’ Motion for
Preliminary Injunction, dated February 15, 2012 (“Hertzog
Decl.”); Declaration of Jonathan Pines in Opposition to Motion
for Preliminary Injunction, dated February 10, 2012; and
Declaration of Jonathan Pines in Opposition to Plaintiffs’
Notice of Filing of Supplemental Evidence, dated February 16,
2012.
2
I.
BACKGROUND 3
The Bronx Household of Faith (the “Church”) is a 37-
year-old, “community-based” Christian church with approximately
85-100 congregants.
(Hall Decl. ¶¶ 3, 6.)
The Church has used
the school auditorium in P.S. 15 in the Bronx, New York, on a
weekly basis since 2002 for purposes of holding its Sunday
worship services.
(Id. ¶¶ 3, 5.)
Defendants granted the Church
permission to worship in P.S. 15 following this Court’s July 3,
2002 order 4 enjoining Defendants from enforcing the Board’s
Standard Operating Procedure section 5.11 (“SOP § 5.11”) so as
to deny Plaintiffs’ application or the application of any
similarly-situated individual or entity to rent space in the
Board’s public schools for morning meetings that include
religious worship.
At the time this Court issued the
preliminary injunction in 2002, SOP § 5.11 provided:
No outside organization or group may be
allowed to conduct religious services or
religious instruction on school premises
after school. However, the use of school
premises by outside organizations or groups
3
The history of this litigation, which dates back to 1995, has
been recounted multiple times throughout the case’s multiple
movements between this Court and the Court of Appeals. Only
those facts most pertinent to Plaintiffs’ immediate request for
relief are recited here. For a more in-depth recitation of the
facts surrounding this litigation, see this Court’s earlier
opinions. 400 F. Supp. 2d 581, 585-89 (S.D.N.Y. 2005) (“Bronx
II”); 226 F. Supp. 2d 401, 403-11 (S.D.N.Y. 2002) (“Bronx I”).
4
The July 3, 2002 order was issued pursuant to this Court’s June
26, 2002 opinion in Bronx I.
3
after school for the purpose of discussing
religious material or material which
contains a religious viewpoint or for
distributing such material is permissible.
Bronx II, 400 F. Supp. 2d at 587.
This Court found that, in light of the Supreme Court’s
decision in Good News Club v. Milford Central School, 533 U.S.
98 (2001), Plaintiffs demonstrated a substantial likelihood of
success in showing that this particular iteration of SOP § 5.11
violated their First Amendment free speech rights. 5
F. Supp. 2d at 413-15.
Bronx I, 226
After Good News Club, a school that
opens its doors as a limited public forum may not prevent an
organization from conducting activities in the school that are
consistent with the defined purposes of the forum merely because
those activities may be characterized as “quintessentially
religious,” such as Bible study or prayer.
533 U.S. at 107-12.
See Good News Club,
Because the Board opened its schools’
doors, inter alia, for the purposes of “holding social, civic
and recreational meetings and entertainment, and other uses
pertaining to the welfare of the community” so long as “such
uses [are] non-exclusive and open to the general public,” Bronx
5
Prior to Good News Club’s being on the books, this Court
dismissed Plaintiffs’ original complaint in the first phase of
this litigation. The Court of Appeals affirmed. See Bronx
Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d
Cir. 1997) (“Bronx Appeal I”), cert. denied, 523 U.S. 1074
(1998). After Good News Club came down, Plaintiffs re-filed
their complaint, and so began the second phase of the
litigation.
4
I, 226 F. Supp. 2d at 409, and because the Church’s proposed
uses on Sunday mornings—which included singing, Bible
instruction, and prayer—were consistent with these defined
purposes, this Court found the Board’s excluding Plaintiffs from
its schools likely would violate Plaintiffs’ free speech rights.
Id. at 413-15; see also id. at 422 (“I find it impossible to
distinguish between, on one hand, activities proposed by the
plaintiffs that are within the activities expressly permitted in
this forum, viz., discussing religious material or material
which contains a religious viewpoint and activities contributing
to the welfare of the community and, on the other hand, an
activity different in kind called worship.”).
The Court of
Appeals affirmed the preliminary injunction but declined to
review this Court’s determination that Good News Club precludes
meaningfully drawing a distinction between worship and other
types of religious speech.
See 331 F.3d 342, 353-55 (2d Cir.
2003) (“Bronx Appeal II”).
In March 2005, the Board announced it planned to
modify SOP § 5.11 (“Revised SOP § 5.11”) to read as follows:
No permit shall be granted for the purpose
of holding religious worship services, or
otherwise using a school as a house of
worship. Permits may be granted to
religious clubs for students that are
sponsored by outside organizations and
otherwise satisfy the requirements of this
[regulation] on the same basis that they are
5
granted to other clubs for students that are
sponsored by outside organizations. 6
Bronx II, 400 F. Supp. 2d at 588.
The Board informed Plaintiffs
that the Church’s use of P.S. 15 for Sunday worship services was
prohibited under Revised SOP § 5.11 but did not enforce the new
policy because of the preliminary injunction.
Id.
The parties
then cross-moved for summary judgment, and Plaintiffs further
sought to convert the preliminary injunction into a permanent
one on the ground that Revised SOP § 5.11 was unconstitutional
in the same manner as its previous incarnation.
This Court
granted Plaintiffs’ motion for summary judgment, denied
Defendant’s cross-motion for summary judgment, and permanently
enjoined Defendants “from enforcing [Revised] SOP § 5.11 so as
to exclude Plaintiffs or any other similarly situated individual
from otherwise permissible after-school and weekend use of a New
York City public school.”
Id. at 601.
This Court’s reasons for
granting the permanent injunction paralleled those underlying
the grant of the preliminary injunction, viz., in the context of
a limited public forum Revised SOP § 5.11 constituted
impermissible viewpoint discrimination on the basis of religion
6
Revised SOP § 5.11 has since been re-issued as part of
Chancellor’s Regulation D-180 (“Ch. Reg. D-180”). See
Chancellor’s Regulation D-180 §§ I.Q, I.S, Extended Use of
School Buildings, http://schools.nyc.gov/NR/rdonlyres/023114D9EA44-4FE0-BCEE-45778134EA14/0/D180.pdf (last visited February
24, 2012). References in this opinion to Revised SOP § 5.11
should be treated as synonymous with Ch. Reg. D-180.
6
in violation of Plaintiffs’ free speech rights, and such
discrimination was not saved by the Board’s perceived concern of
violating the Establishment Clause.
After the Court of Appeals
vacated the permanent injunction on ripeness grounds, see 492
F.3d 89 (2d Cir. 2007) (per curiam), the Board officially
instituted Revised SOP § 5.11, the parties again cross-moved for
summary judgment, and this Court reissued the permanent
injunction for the reasons stated in Bronx I and Bronx II [Dkt.
No. 99].
A.
The Court of Appeals Reverses Summary Judgment and
Vacates the Permanent Injunction
In June 2011, the Court of Appeals issued a split
decision reversing summary judgment and vacating the preliminary
injunction.
III”).
See 650 F.3d 30 (2d Cir. 2011) (“Bronx Appeal
The majority first concluded that “the challenged rule
does not constitute viewpoint discrimination because it does not
seek to exclude expressions of religious points of view or of
religious devotion, but rather excludes for valid nondiscriminatory reasons only a type of activity—the conduct of
worship services.”
Id. at 33.
Further, “because Defendants
reasonably seek by the rule to avoid violating the Establishment
Clause,” the majority held that “the exclusion of religious
worship services is a reasonable content-based restriction,
which does not violate the Free Speech Clause.”
7
Id.
The majority drew a line between the individual
religious activities expressly permitted in Good News Club
(e.g., prayer, religious instruction, expression of devotion to
God, and the singing of hymns), which amount to “worship,” and
“worship services”—the former permitted under Revised SOP § 5.11
and the latter excluded.
Id. at 36-37.
The majority then
defined worship services as “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.”
Id. at 37.
Regarding the Board’s concern of violating the
Establishment Clause, the majority made clear that it was not
deciding “whether use of the school for worship services would
in fact violate the Establishment Clause.”
Id. at 40; see also
id. at 49 (“The Supreme Court has never ruled on whether
permitting the regular conduct of religious worship services in
public schools constitutes a violation of the Establishment
Clause, and we reach no conclusion on that question.”).
Rather,
it concluded that the Board’s concern was reasonably objective,
which was sufficient to justify the ban.
Id. at 40-43.
Finally, the majority considered Plaintiffs’
Establishment Clause claim but was “not persuaded.”
Id. at 45.
It did not believe a reasonable observer would perceive Revised
SOP § 5.11’s ban on religious worship services as being hostile
8
to religion.
Id. at 45-46.
And it did not believe that
enforcement of the policy causes excessive governmental
entanglement with religion.
1.
Id. at 46-48.
Judge Walker’s Dissent
In his dissent, Judge Walker disagreed with the
majority on both of its conclusions relating to the free speech
analysis.
First, he concluded that Revised SOP § 5.11’s ban on
religious worship services constitutes impermissible viewpoint
discrimination.
Id. at 54-59.
He did not find that the
majority drew a workable distinction between “worship” and
“worship services” and concluded that Good News Club foreclosed
the Board from excluding worship services.
Id. at 55-56.
Moreover, Judge Walker found the majority’s definition of
religious worship services “leads to anomalous results: while a
Catholic or Episcopal service would be shut out of the forum, a
Quaker meeting service, Buddhist meditation service, or other
religions worship convocation could be allowed because it would
not follow a ‘prescribed order’ or because the leader is not
‘ordained.’”
Id. at 56.
Second, Judge Walker did not find the Board’s
professed Establishment Clause rationale to be reasonable.
at 59-64.
Id.
Instead, he would hold that “the actions of Bronx
Household, a private party, cannot transform the government’s
neutral action into an Establishment Clause violation.”
9
Id. at
59.
In Judge Walker’s opinion, an objective, fully informed
observer would not perceive governmental endorsement of religion
because the Board’s schools are “open to a wide spectrum of
participants,” which “bespeaks the state’s neutrality, not its
favoring of religion or any other group.”
Id. at 61.
Finally,
Judge Walker indicated that Revised SOP 5.11 raises Free
Exercise Clause concerns and would not withstand a free exercise
challenge because the Board cannot demonstrate a compelling
state interest that would justify the policy’s burdening of
religious practices.
Because Judge Walker found that the
Board’s Establishment Clause rationale is not even reasonable,
he concluded that it could not be compelling.
B.
Id. at 58 n.4.
Most Recent Developments
The Court of Appeals denied Plaintiffs’ request for an
en banc rehearing on July 27, 2011, and the Supreme Court denied
Plaintiffs’ petition for certiorari on December 5, 2011.
Ct. 816 (2011).
132 S.
That cleared the way for the Court of Appeals
to issue its mandate on December 7, 2011.
Despite vacatur of
the injunction, Defendants agreed to adjourn enforcement of
Revised SOP § 5.11 until February 13, 2012.
On December 14, 2011, Plaintiff Hall submitted a new
application on behalf of the Church to continue using P.S. 15 on
Sunday mornings for the period January 8, 2012 to February 12,
2012.
(Hall Decl. ¶ 15, Ex. A.)
10
In the space on the
application entitled “Description of activities to be conducted”
Hall wrote, “Hymn singing, prayer, communion, preaching,
teaching, fellowship.”
(Id.)
On the permit approving the
application, however, the Board listed the activities as “WORHIP
[sic] HYMN SINGING, PRAYER, COMMUNION, PREACHING.”
(Id. ¶ 16,
Ex. B.)
On December 16, 2011, this Court ordered the parties
to confer and propose how they wished to proceed in light of the
mandate.
Plaintiffs’ counsel called chambers on January 10,
2012, to inform the Court they had only that day received notice
of the December 16 order but would confer with opposing counsel
and report back to the Court as soon as practicable.
On January
25, 2012, Plaintiffs’ counsel wrote the Court that it intended
to seek a new preliminary injunction based on claims that either
remained undecided by the Court of Appeals or were revived by
the Supreme Court’s decision in Hosanna-Tabor Evangelical
Lutheran Church & School v. EEOC, 132 S. Ct. 694 (Jan. 11,
2012). 7
The Court ordered the parties to confer on a proposed
briefing schedule, which they worked out on an expedited basis.
7
Chambers faxed a copy of the December 16 order to the City of
New York Law Department—counsel for Defendants—with instructions
to distribute it to all parties involved. The fax apparently
was addressed to an attorney who no longer works for the city.
While the Court subsequently ordered that the case be designated
for electronic filing, at the time the Court issued the December
16 order counsel for the parties could not receive electronic
(cont’d on next page)
11
Oral argument was held on February 14, 2012.
At the
conclusion of oral argument the Court asked the parties to
confer as to whether they could arrange a temporary resolution
for the coming weekend.
That evening Defendants wrote the Court
that they would not agree to suspend immediate implementation of
Ch. Reg. D-180.
The Court issued a temporary restraining order
on February 16, 2012, enjoining Defendants from enforcing that
part of Ch. Reg. D-180 that provides: “No permit shall be
granted for the purpose of holding religious worship services,
or otherwise using a school as a house of worship.” 8
The Court
indicated in the temporary restraining order that a written
opinion would follow; this is that opinion, applicable both to
the temporary restraining order and the preliminary injunction.
II.
STANDARD FOR PRELIMINARY INJUNCTION
Plaintiffs seek a preliminary injunction to preserve
the status quo of meeting in P.S. 15 on Sunday mornings, which
they have done since this Court issued its initial preliminary
(cont’d from previous page)
notification of any case activity. Given these circumstances
and the timing of the Supreme Court’s decision in Hosanna-Tabor,
the Court does not fault Plaintiffs for not writing the Court
sooner.
8
Defendants immediately moved the Court of Appeals to stay the
temporary restraining order. That motion was denied, although
the Court of Appeals clarified that the temporary restraining
order should be read as barring the Board from enforcing its
policy against Plaintiffs only.
12
injunction in 2002.
A court generally may grant a preliminary
injunction when the moving party can establish both (1)
irreparable harm and (2) either (a) a likelihood of success on
the merits or (b) sufficient questions on the merits to make
them a fair ground for litigation and a balance of hardships
tipping decidedly in favor of the moving party.
E.g., Cacchillo
v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011).
When a
party seeks a “mandatory” preliminary injunction that “‘alter[s]
the status quo by commanding some positive act,’ as opposed to a
‘prohibitory’ injunction seeking only to maintain the status
quo,” the moving party must make a “‘clear showing that [it] is
entitled to the relief requested, or [that] extreme or very
serious damage will result from a denial of preliminary
relief.’”
Citigroup Global Markets, Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir.
2010) (quoting Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc.,
60 F.3d 27, 34–35 (2d Cir. 1995)) (first alteration in
original); see also Fifth Ave. Presbyterian Church v. City of
N.Y., 293 F.3d 570, 574 n.2 (2d Cir. 2002) (noting the “‘clear
or substantial likelihood of success’ standard applicable to
mandatory injunctions”).
When this Court issued the initial preliminary
injunction in 2002, it applied the higher burden of proof
required for mandatory injunctive relief because at the time the
13
Church was not meeting in the Board’s schools; thus, Plaintiffs
sought to alter the status quo.
411.
Bronx I, 226 F. Supp. 2d at
This time around, Plaintiffs seek prohibitory injunctive
relief because they wish to maintain the current status quo—
viz., meeting in P.S. 15 on Sunday mornings as they have for
nearly ten years.
As such, although the Court finds that they
have done so, 9 Plaintiffs are not now required to meet the higher
standard of showing a substantial likelihood of success on the
merits.
III. DISCUSSION
The Court finds that Plaintiffs have satisfied their
burden of demonstrating irreparable harm and a likelihood of
success on the merits of their Free Exercise Clause claim and
Establishment Clause claim.
Furthermore, the Court finds that
these claims are not precluded by the doctrines of the law of
the case, claim preclusion, and issue preclusion.
Each of these
findings is addressed below.
9
Defendants argued before the Court of Appeals when they moved
to vacate the temporary restraining order that the status quo is
no injunction against enforcement of Revised SOP § 5.11. The
Court does not have the benefit of Plaintiffs’ response to this
argument because Defendants did not argue the merits of
Plaintiffs’ motion for a preliminary injunction before this
Court. Assuming Defendants are correct, Plaintiffs must meet
the higher standard of showing a substantial likelihood of
success on the merits of their claims. Because the Court finds
that Plaintiffs have met that higher standard, this precise
issue need not be resolved.
14
A.
Plaintiffs Will Suffer Irreparable Harm
Plaintiffs claim that because Revised SOP § 5.11
prevents them from holding Sunday worship services in the
Board’s public schools—the only location in which they can
afford to gather as a full congregation without having to
curtail other of their religious practices—it prohibits their
free exercise of religion in violation of their First Amendment
rights.
Plaintiffs assert the prohibitive cost of renting
commercial space for the Church’s worship services would force
them “to reduce and/or eliminate ministries to [the Church’s]
members and . . . local community.”
(Hall Decl. ¶ 9.)
“[The]
entire congregation could no longer worship together,” which
would “undermine the fellowship” that is a “vital aspect of [the
(Id. ¶ 11.)
Church’s] religious ministry and calling.”
Being
banned from using the Board’s schools would also “undermine [the
Church’s] ability to engage in the duties of [the Church’s]
Christian faith—to corporately pray for one another, hear
testimony, engage in collective praise, and serve the local
community.”
(Id. ¶ 12.)
“In addition, [the Church] will lose
some [congregants] because they would not be able to participate
in [the Church’s] vital Sunday ministry.
Many of these
individuals are elderly, disabled, or lack transportation, and
traveling to another location is not an option.”
15
(Id. ¶ 13.)
“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable
injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976).
Here, the
alleged deprivation of Plaintiffs’ free exercise rights results
directly from the Board’s implementation of Revised SOP § 5.11
so as to ban Plaintiffs from holding worship services in P.S. 15
on Sundays.
“Where a plaintiff alleges injury from a rule or
regulation that directly limits [First Amendment rights], the
irreparable nature of the harm may be presumed.”
II, 331 F.3d at 349.
Bronx Appeal
Based on these principles and the Court’s
determination that Plaintiffs likely will prove an actual
violation of their First Amendment free exercise rights—“rights
that are the bedrock of our liberties,” id.—Plaintiffs have
demonstrated that they will suffer irreparable harm in the
absence of an injunction.
B.
Plaintiffs Are Likely to Succeed on the Merits
Unsurprisingly, the Court of Appeals did not address
Plaintiffs’ Free Exercise Clause claim when it reversed summary
judgment for Plaintiffs and vacated the injunction.
That is so
because this Court granted summary judgment and the permanent
injunction on free speech grounds only.
Simply put, there was
no need for the Court of Appeals to rule on the Free Exercise
Clause claim because it was not immediately before the appellate
panel.
This Court has now fully considered the claim and finds
16
Plaintiffs have demonstrated a likelihood of success on the
merits.
In addition, new facts documenting how the Board’s
current policy fosters excessive governmental entanglement with
religion and the Supreme Court’s recent decision in HosannaTabor persuade the Court that Plaintiffs are likely to succeed
on the merits of their Establishment Clause claim as well.
1.
Free Exercise Clause Claim
The Free Exercise Clause of the First Amendment, as
applied to the states through the Fourteenth Amendment, provides
that “Congress shall make no law . . . prohibiting the free
exercise [of religion].”
U.S. Const. amend. I.
“At a minimum,
the protections of the Free Exercise Clause pertain if the law
at issue discriminates against some or all religious beliefs or
regulates or prohibits conduct because it is undertaken for
religious reasons.”
Church of Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 532 (1993).
While “a law that is
neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the
incidental effect of burdening a particular religious
practice[,] . . . [a] law failing to satisfy these requirements
must be justified by a compelling governmental interest and must
be narrowly tailored to advance that interest.”
Id. at 531-32
(citing Emp’t Div. v. Smith, 494 U.S. 872 (1990)); see also
Fifth Ave. Presbyterian Church, 293 F.3d at 574 (“Government
17
enforcement of laws or policies that substantially burden the
exercise of sincerely held religious beliefs is subject to
strict scrutiny.”).
a)
Revised SOP § 5.11 Raises Free Exercise
Concerns and Is Not Neutral
There can be no doubt that Revised SOP § 5.11
implicates the protections of the Free Exercise Clause given
that it “regulates or prohibits conduct because [the conduct] is
undertaken for religious reasons.”
Lukumi, 508 U.S. at 532.
The policy expressly bans “religious worship services”—conduct
for which there is no secular analog.
See Bronx Appeal III, 650
F.3d at 37 (“The ‘religious worship services’ clause does not
purport to prohibit use of the facility by a person or group of
persons for ‘worship.’
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.” (emphasis added)); Bronx Appeal I, 127 F.3d at
221 (Cabranes, J., concurring in part and dissenting in part)
(“Unlike religious ‘instruction,’ there is no real secular
analogue to religious ‘services,’ such that a ban on religious
services might pose a substantial threat of viewpoint
discrimination between religion and secularism.”).
18
A law is not neutral if its object is to infringe upon
or restrict practices because of their religious motivation.
Lukumi, 508 U.S. at 533.
Thus, on its face, Revised SOP § 5.11
is not neutral because it “refers to a religious practice
without a secular meaning discernable from the language or
Id.; see also Bronx Appeal III, 650 F.3d at 58 n.4
context.”
(Walker, J., dissenting) (“Given the plain language of SOP §
5.11, the Board’s persistent exclusion of outside organizations
seeking to use school facilities for religious purposes, and the
Board’s repeated statements that SOP § 5.11 is aimed at the
practice of religion, it is undisputable that SOP § 5.11 is not
neutral.”).
In addition, the policy also is not neutral because it
discriminates between those religions that fit the “ordained”
model of formal religious worship services, see Bronx Appeal
III, 650 F.3d at 37 (defining worship services as “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”), and those religions whose worship practices
are far less structured, see id. at 56 (Walker, J., dissenting)
(noting that the majority’s definition “leads to anomalous
results: while a Catholic or Episcopal service would be shut out
of the forum, a Quaker meeting service, Buddhist meditation
19
service, or other religions worship convocation could be allowed
because it would not follow a ‘prescribed order’” or because the
leader is not ‘ordained’”).
Having concluded that Revised SOP § 5.11 raises Free
Exercise Clause concerns 10 and is not neutral, the policy may
only be saved if it meets a strict scrutiny analysis.
Defendants must show the policy serves a compelling state
interest and is narrowly tailored to advance that interest.
Throughout this litigation Defendants have maintained that the
policy necessarily facilitates their mandate to avoid an
unconstitutional establishment of religion.
10
Defendants argue
At oral argument, counsel for Defendants urged that there
could be no Free Exercise Clause violation in this case because
the cases cited by Plaintiffs in which the Supreme Court found
such violations did not involve a defendant who was motivated by
a desire to avoid violating the Establishment Clause. E.g.,
Lukumi, 508 U.S. 520. Because Revised SOP § 5.11 results from
the Board’s balancing of competing constitutional mandates,
Defendants argue Plaintiffs’ Free Exercise Clause claim is
precluded. The Court disagrees. That the Board may need to
balance competing interests does not foreclose Plaintiffs’ claim
but rather speaks to whether Revised SOP § 5.11 meets strict
scrutiny, i.e., whether the Board’s interest in adopting the
policy is compelling and whether the policy is narrowly tailored
to advance that interest. Cf. Bronx Appeal III, 650 F.3d at 59
(Walker, J., dissenting) (“[T]he majority argues that my finding
of viewpoint discrimination overlooks the Board’s Establishment
Clause rationale. . . . [E]ven if the Board were to have
legitimate Establishment Clause concerns, those concerns could
do nothing to undermine my conclusion that the Board engaged in
viewpoint discrimination; at most, they could only serve as a
potential justification for such discrimination.” (citation
omitted)). The Court discusses the strict scrutiny analysis
infra Part III.B.1(b)-(c).
20
that allowing churches to hold worship services in the Board’s
public schools sends the message that Defendants are endorsing
religion, which runs afoul of the second prong of the Supreme
Court’s test in Lemon v. Kurtzman for determining compliance
with the Establishment Clause.
See 403 U.S. 602, 612 (1971)
(requiring that the “principal or primary effect [of the law in
question] . . . neither advance[] nor inhibit[] religion”). 11
Defendants claim their concern over being perceived as endorsing
religion drives the policy’s ban on religious worship services.
The Court does not doubt that a desire to avoid an
actual violation of the Establishment Clause can be a compelling
state interest.
See Widmar v. Vincent, 454 U.S. 263, 270-71
(1981) (“The University . . . argues that it cannot offer its
facilities to religious groups and speakers on the terms
available to other groups without violating the Establishment
Clause of the Constitution of the United States.
We agree that
the interest of the University in complying with its
constitutional obligations may be characterized as compelling.”
(footnote omitted)).
For example, in the context of free speech
analysis, the Supreme Court has said that “compliance with the
Establishment Clause is a state interest sufficiently compelling
11
As the Court of Appeals noted in Bronx Appeal III, “[a]lthough
the Lemon test has been much criticized, the Supreme Court has
declined to disavow it and it continues to govern the analysis
of Establishment Clause claims in this Circuit.” 650 F.3d at 40
n.9.
21
to justify content-based restrictions on speech.”
Capitol
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761–62
(1995); Good News Club, 533 U.S. at 112-13.
However, the Supreme Court has not decided whether a
state’s Establishment Clause rationale might be sufficiently
compelling to justify viewpoint discrimination.
See Good News
Club, 533 U.S. at 113 (“[I]t is not clear whether a State’s
interest in avoiding an Establishment Clause violation would
justify viewpoint discrimination.”).
The Court in Good News
Club avoided deciding that question because it concluded that
the defendant-school had no valid Establishment Clause concern.
Id. at 113-19.
Because the majority in Bronx Appeal III found
that Revised SOP § 5.11’s ban on religious worship services
qualifies as a content-based restriction in light of the defined
purposes of the limited public forum and that it was reasonable
for the Board to believe that permitting worship services in its
schools would, in fact, violate the Establishment Clause, the
Court of Appeals rejected Plaintiffs’ free speech challenge.
See Bronx Appeal III, 650 F.3d at 33 (“We also conclude that
because Defendants reasonably seek by rule to avoid violating
the Establishment Clause, the exclusion of religious worship
services is a reasonable content-based restriction, which does
not violate the Free Speech Clause.” (emphasis added)).
22
Importantly, neither the Court of Appeals nor the
Supreme Court has ruled whether permitting religious worship
services in schools during non-school hours violates the
Establishment Clause.
See, e.g., Bronx Appeal III, 650 F.3d at
49 (“The Supreme Court has never ruled on whether permitting the
regular conduct of religious worship services in public schools
constitutes a violation of the Establishment Clause, and we
reach no conclusion on that question.”); id. at 43 (“To
reiterate, we do not say that a violation has occurred, or would
occur but for the policy.”).
The Court of Appeals determined
that resolving that question was unnecessary in Bronx Appeal III
because the Board only had to show its Establishment Clause
rationale for banning religious worship services was reasonable.
Because this Court concludes that strict scrutiny now applies to
the consideration of Plaintiffs’ Free Exercise Clause claim, the
question before the Court is whether the Board’s Establishment
Clause rationale is sufficiently compelling to justify burdening
Plaintiffs’ free exercise rights.
The Court believes the answer
to that question requires a definitive finding as to whether
permitting religious worship services in schools during nonschool hours violates the Establishment Clause.
For the reasons
stated below, the Court answers that question in the negative
and concludes that Defendants do not meet their higher burden of
demonstrating a compelling interest.
23
b)
Board’s Interest Is Not Sufficiently
Compelling Because Allowing Religious
Worship Services During Non-School Hours
Does Not Violate the Establishment Clause
The Court credits the Board’s word that in adopting
Revised SOP § 5.11 the Board was motivated by a concern that
allowing schools to be used during non-school hours for
“religious worship services” could be perceived as violating the
Establishment Clause.
But from the perspective of the
objective, fully informed observer, see Bronx Appeal III, 650
F.3d at 60 (Walker, J., dissenting) (“[T]he endorsement test
asks whether ‘an objective observer, acquainted with the text,
legislative history, and implementation of the [challenged law
or policy], would perceive it as a state endorsement of
[organized religion] in public schools.’” (quoting Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)) (second and
third alterations in original)), no such violation would result.
This Court considered the Board’s Establishment Clause rationale
in Bronx I and concluded the following:
As in Good News Club, there is a substantial
likelihood that plaintiffs will be able to
demonstrate here that defendants do not have
a compelling state interest in avoiding an
Establishment Clause violation by denying
plaintiffs’ request to rent space [in the
Board’s schools]. Plaintiffs’ proposed
meetings would occur on Sunday mornings—
i.e., during nonschool hours. The meetings
are obviously not endorsed by the School
District. No [school] employee attends
plaintiffs’ Sunday morning meetings.
24
Further, the meetings are “open to all
members of the public” and “not closed to a
limited group of people, such as church
members and their guests.” Nor is there any
evidence that children are present around
[the school] on Sunday mornings or that any
. . . students even attend plaintiffs’
Sunday school or services. In short, it can
hardly be said that plaintiffs’ proposed
meetings would so dominate [the school] that
children would perceive endorsement by the
School District of a particular religion.
226 F. Supp. 2d at 426 (internal citations and footnote
omitted); see also Bronx Appeal III, 650 F.3d at 61-62 (Walker,
J., dissenting) (“Bronx Household’s use of P.S. 15 takes place
during non-school hours (actually on a day when there is no
school), lacks school sponsorship, occurs in a forum otherwise
available for a wide variety of uses, and is open to the
public.”).
The Court readopts all these reasons.
The Court also notes that the objective observer would
know from the text of the regulation that the schools are open
to all comers whose activities are consistent with the broad
uses of the limited public forum prescribed therein.
That
observer would also know from the legislative history and
implementation of the policy (including the lengthy judicial
history) that the Board’s actions betoken great effort to avoid
establishing any religion.
For all these reasons, the
“objective observer, acquainted with the text, legislative
history, and implementation of” Revised SOP § 5.11 would not
25
perceive the Board’s policy as an endorsement of religion in the
public schools.
Santa Fe Indep. Sch. Dist., 530 U.S. at 308
(internal quotation marks omitted).
Furthermore, the Board’s stated concern that allowing
Plaintiffs’ Sunday worship services to be held in P.S. 15 would
effectively subsidize the Church given New York’s otherwise
expensive real estate market is contradicted both by precedent
and the facts of this case.
As the Supreme Court explained in
Rosenberger v. Rector & Visitors of the University of Virginia:
It does not violate the Establishment Clause for
a public university to grant access to its
facilities on a religion-neutral basis to a wide
spectrum of student groups, including groups that
use meeting rooms for sectarian activities,
accompanied by some devotional exercises. . . .
Even the provision of a meeting room . . .
involve[s] governmental expenditure, if only in
the form of electricity and heating or cooling
costs. . . . If the expenditure of governmental
funds is prohibited whenever those funds pay for
a service that is, pursuant to a religion-neutral
program, used by a group for sectarian purposes,
then [Supreme Court precedent] would have to be
overruled.
515 U.S. 819, 842-43 (1995) (citations omitted).
To accept the
Board’s argument would mean the Supreme Court has impermissibly
sanctioned, again and again, state subsidization of religion
when public schools open their doors as limited public forums.
See, e.g., Good News Club, 533 U.S. 98 (holding that public
school could not exclude outside religious organization from
meeting for Bible study, prayer, and devotion to God); Widmar,
26
454 U.S. 263 (holding that public university could not exclude
student religious group from meeting for purposes of religious
worship and religious discussion).
Here, whether religious student clubs meet in the
Board’s schools for Bible study (a permissive use under Revised
SOP § 5.11) or Plaintiffs meet for Sunday worship services (an
impermissible use under the policy), the result is the same:
“the use of public funds to finance religious activities.”
DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 419 (2d
Cir. 2001) (internal quotation marks omitted).
But the Supreme
Court precedent cited above makes clear that no valid
Establishment Clause concern exists in this regard when a school
grants access to its facilities “on a religion-neutral basis to
a wide spectrum” of outside groups as Defendants do here.
Rosenberger, 515 U.S. at 821.
Thus, this misplaced concern does
not make the Board’s interest a compelling one, and the Court
ultimately agrees with Judge Walker that “the actions of Bronx
Household, a private party, cannot transform the government’s
neutral action into an Establishment Clause violation.”
Bronx
Appeal III, 650 F.3d at 59 (Walker, J., dissenting). 12
12
The Court acknowledges that the majority in Bronx Appeal III
found the Board’s stated concern over subsidizing religion to be
reasonable. See 650 F.3d at 41. To be sure, the majority found
that the Board had a “strong basis” for its Establishment Clause
concerns. Id. at 43. That conclusion, coupled with the
(cont’d on next page)
27
c)
Revised SOP § 5.11 Does Not Advance the
Board’s Interest and Is Not Narrowly
Tailored
Even assuming, arguendo, that the Board’s
Establishment Clause rationale may be characterized as
compelling, the Board must show that Revised SOP § 5.11 is
narrowly tailored to advance its interest of not appearing to
endorse religion as proscribed by the Establishment Clause.
Although the second prong of the strict scrutiny analysis
generally focuses on the scope of the policy—i.e., whether the
policy is narrowly tailored—it also requires that the policy, in
fact, advance the state’s interest.
Because the Court finds
that Revised SOP § 5.11’s ban on religious worship services is
ineffective in achieving the Board’s stated concern of avoiding
a violation of the Establishment Clause, the challenged policy
does not advance the Board’s interest.
The Board also has not
demonstrated that the policy is narrowly tailored.
Revised SOP
(cont’d from previous page)
conclusion that the Board’s ban on religious worship services is
a content-based restriction, satisfied the Court of Appeals that
Revised SOP § 5.11 does not raise free speech concerns.
However, the majority did not expressly state that it found
the Board’s Establishment Clause rationale to be a compelling
state interest. Even assuming the Court of Appeals found that
the Board’s strong basis for concern of violating the
Establishment Clause amounts to a compelling interest, Revised
SOP § 5.11 survives Plaintiffs’ free exercise challenge only if
it is narrowly tailored to achieve that interest. For the
reasons stated infra Part III.B.1(c), the Court finds that
Revised SOP § 5.11 fails this second prong of Lukumi’s strict
scrutiny analysis.
28
§ 5.11 thus fails the second prong of Lukumi’s strict scrutiny
analysis.
i)
Ban on Religious Worship Services
Is Ineffective
Despite Defendants’ claim that Revised SOP § 5.11’s
ban on religious worship services is necessary to avoid the
perception of endorsement of religion, the policy does not serve
that purpose.
Because it singles out only those religions that
conduct “ordained” worship services, the ban works against the
informed observer’s perception of neutrality that would
otherwise result if all religions were treated on the same
terms.
See Good News Club, 533 U.S. at 114 (“Because allowing
the Club to speak on school grounds would ensure neutrality, not
threaten it, [the school district] faces an uphill battle in
arguing that the Establishment Clause compels it to exclude the
Good News Club.”); Bd. of Educ. v. Mergens, 496 U.S. 226, 248
(1990) (“[I]f a State refused to let religious groups use
facilities open to others, then it would demonstrate not
neutrality but hostility toward religion.”).
Indeed, “the fact that the [Board’s schools are] open
to a wide spectrum of participants bespeaks the state’s
neutrality, not its favoring of religion or any other group.”
Bronx Appeal III, 650 F.3d at 61 (Walker, J., dissenting).
While Christian churches use the schools to worship on Sundays,
29
Jewish and Muslim groups use the schools on Fridays and
Saturdays.
Bronx Appeal III, 650 F.3d at 62-63 (Walker, J.,
dissenting).
The objective, fully informed observer who passes
by the Board’s schools and witnesses a wide variety of community
groups meeting on weeknights, followed by a Jewish Friday night
service, a Ramadan Saturday evening service, and finally a
Sunday morning Christian worship service, could not reasonably
infer that the Board was endorsing religion in its public
schools.
Rather, the informed observer would conclude that the
Board opens its schools during non-school hours to a diverse
group of organizations pursuant to a neutral policy generally
aimed at improving “the welfare of the community.”
Revised SOP
§ 5.22’s ban on religious worship services—which would exclude
certain religions from worshiping in the schools but permit
others—only weakens the perception of neutrality as between
religion and non-religion.
Beyond this, Revised SOP § 5.11 expressly provides
that “[p]ermits may be granted to religious clubs for students
that are sponsored by outside organizations.” 13
As the Court of
Appeals noted, following Good News Club, the Board may not
exclude groups from using its schools for “[p]rayer, religious
instruction, expression of devotion to God, and the singing of
hymns.”
13
Bronx Appeal III, 650 F.3d at 36-37.
Given the variety
See Chancellor’s Regulation D-180 § I.S, supra note 6.
30
of religious practices that are permitted under Revised SOP §
5.11—as to which the Board makes clear there is no endorsement
of religion—the Board fails to explain how the informed observer
would view any differently the Board’s permitting Plaintiffs’
use of its schools for Sunday worship services.
Because the
individual elements of those services are expressly permitted,
the policy’s ban on “religious worship services” is entirely
ineffective in dispelling any confusion in the mind of the
objective observer over State endorsement of religion.
The
Board is just as likely to be perceived as endorsing religion
with the ban in place as with it enjoined.
In both instances,
the observer would see “[p]rayer, religious instruction,
expression of devotion to God, and the singing of hymns.”
Id.
Whether the applicant or a Board bureaucrat deems those
activities to constitute “worship services” or not does not
change the objective observer’s perception of whether or not the
Board is endorsing religion.
Accordingly, Revised SOP § 5.11
does not advance the Board’s interest of avoiding an
Establishment Clause violation.
ii)
Revised SOP § 5.11 Is Not
Narrowly Tailored
Because the Board has not shown that other, less
restrictive measures would fail to advance the Board’s stated
interest, the Court finds that the regulation is not narrowly
31
tailored.
In Bronx Appeal III, Judge Walker explained why this
is so:
While Bronx Household’s four-hour use of
P.S. 15 on Sundays hardly dominates the
limited public forum the Board has created
under [Revised SOP § 5.11], any concern over
a given group’s prolonged or dominant use of
the forum can be addressed through
reasonable time, place, and manner
restrictions. For example, in order to
ensure greater weekend availability of a
particular school’s facilities to more
outside organizations, the Board could limit
the number of times per year that any one
outside organization may use school
facilities. Likewise, the Board may revoke
any organization’s permit if it fails to
adhere to neutral rules imposed by the
Board, i.e., by failing to include the
Board’s sponsorship disclaimer in written
materials or by actively creating an
impression of school sponsorship.
650 F.3d at 64 n.11 (Walker, J., dissenting).
Additionally, in
order to dispel any implication of endorsement, the Board could,
for example, require groups to install signs outside the schools
disclaiming endorsement.
That Defendants have not even
addressed the potential effectiveness of options such as these
signals that Revised SOP § 5.11’s ban on religious worship
services is not narrowly tailored to advance the Board’s
interest in avoiding a violation of the Establishment Clause.
Thus, the lack of narrow tailoring is another reason why Revised
SOP § 5.11 does not withstand Plaintiffs’ free exercise
challenge.
32
The interplay of Plaintiffs’ free exercise rights and
the Board’s stated Establishment Clause concern warrants one
final comment.
The Court of Appeals acknowledged the difficult
line the Board must toe in protecting Plaintiffs’ First
Amendment free speech rights so as not to cause a separate First
Amendment violation by endorsing religion.
See Bronx Appeal
III, 650 F.3d at 46 (characterizing the Board’s motivation in
adopting Revised SOP § 5.11 as “a good faith desire to navigate
successfully through the poorly marked, and rapidly changing,
channel between the Scylla of viewpoint discrimination and the
Charybdis of violation of the Establishment Clause”).
While the
Board may have struck the appropriate balance for free speech
and Establishment Clause purposes, Revised SOP § 5.11 does not
provide due consideration to Plaintiffs’ First Amendment free
exercise rights.
Perhaps nothing short of a Herculean effort
would permit the Board to sail unscathed through the
constitutional strait that pits the Religion Clauses against one
another, but Revised SOP § 5.11 operates to deprive the Board’s
constituents of their free exercise rights.
In this Court’s
view, losing one’s right to exercise freely and fully his or her
religious beliefs is a greater threat to our democratic society
than a misperceived violation of the Establishment Clause.
33
2.
Establishment Clause Claim
Although the majority decided Bronx Appeal III on free
speech grounds, it also addressed Plaintiffs’ Establishment
Clause claim.
The majority indicated that Revised SOP § 5.11
likely satisfies the Lemon test for determining compliance with
the Establishment Clause.
48.
See Bronx Appeal III, 650 F.3d at 45-
Regarding the third prong of the Lemon test, which requires
that the challenged regulation not foster an excessive
entanglement with religion, see 403 U.S. at 613, Plaintiffs
claimed that the Board cannot apply Revised SOP § 5.11 without
excessively entangling itself in matters of religious doctrine
because the policy requires the Board to determine which
religious practices amount to “worship services.”
The majority
found this argument to be a non-starter due to Plaintiffs’ own
admission to the Board:
To begin with, whatever merit this argument
may have in other types of cases, we do not
see what application it has here. Bronx
Household does not contest that it conducts
religious worship services. To the
contrary, it applied for a permit to conduct
“Christian worship services,” and the
evidence suggests no reason to question its
own characterization of its activities.
Bronx Appeal III, 650 F.3d at 47; see also id. at 52 n.1
(Calabresi, J., concurring) (“Once an applicant says that what
it wishes to do is ‘worship,’ no inquiry into whether the
underlying or accompanying activities actually constitute
34
worship is required.”).
At oral argument on February 14, 2012,
counsel for Defendants reiterated that Revised SOP § 5.11 does
not raise excessive entanglement concerns because it asks the
applicants themselves to certify whether their proposed permit
use complies with the policy’s ban on religious worship services
and represented that the Board will not second-guess an
applicant’s own characterization of its proposed activities.
Specifically, defense counsel maintained:
I can represent to the Court, under the new
policy, fellowship, singing hymns and other
similar type[s] of activities will not be
equal to worship . . . . We are certainly
not going to purport to look under the tent
and make those evaluations and say X, Y and
Z equals worship. . . . [W]e are not going
to do the X, Y, Z equals worship, even if
[applicants] say it doesn’t, so long as they
certify that they are complying with the
policy.
(Prelim. Inj. Hr’g Tr. at 22, 25-26, Feb. 14, 2012.)
Factual
and legal developments since the Court of Appeals decided Bronx
Appeal III contradict these assertions and merit reconsideration
of Plaintiffs’ Establishment Clause claim.
First, the Board’s handling of Plaintiffs’ latest
permit application belies the notion that the Board will take
applicants’ descriptions of their proposed activities at face
value.
Upon vetting Plaintiff Hall’s December 2011 application
to use P.S. 15 during the “adjournment” period before the Board
began enforcing Revised SOP § 5.11, the Board sua sponte wrote
35
in “WORHIP [sic]” as one of the Church’s activities when Hall
had only listed “Hymn singing, prayer, communion, preaching,
teaching, fellowship” on the application.
Exs. A-B.)
(Hall Decl. ¶¶ 15-16,
Though the permit was granted for the adjournment
period, the Board’s conduct suggests that an identical
application would be rejected should the Board begin enforcing
Revised SOP § 5.11.
The Board essentially tallied the
individual activities listed by Plaintiffs and concluded that
“X, Y and Z equals worship.”
Thus, despite Defendants’
suggestion that any concern about excessive entanglement may
only properly be considered in the “next case,” Plaintiffs now
raise a colorable inference of excessive entanglement in this
case.
Second, the Declaration of Brad Hertzog, Pastor of
Reformation Presbyterian Church, in Support of Plaintiffs’
Motion for Preliminary Injunction (“Hertzog Decl.”) [Dkt. No.
126], illustrates how Revised SOP § 5.11 compels the Board
unconstitutionally to inject itself into matters of religious
province.
Reformation Presbyterian Church (“Reformation”) had
been holding weekly meetings in P.S. 173 in Queens since 2009.
(Hertzog Decl. ¶ 4.)
Hertzog describes those meetings as
follows:
Our weekly meetings in the auditorium of
P.S. 173 include singing, prayer, reading
and studying the Bible, and fellowship. The
36
focus of the meeting is Bible study with
some prayer and some singing. When we
finish, we have some light snacks and
socialize. Sometimes we break off for
further Bible Study with kids and adults in
different groups—though not at every
meeting. Our time is probably split 50/50
between informal social time and the more
structured singing, praying, and study.
(Id. ¶ 6.)
In December 2011, after the Board informed Hertzog
that Reformation’s permit would expire on January 1, 2012,
Hertzog applied for a new permit through June 2012.
(Id. ¶ 7.)
On December 20, 2011, the Board’s Yelena Kramer asked
Hertzog to describe Reformation’s proposed use of the new permit
and asked, “Are you conducting religious worship services?”
(Id. ¶ 8.)
Hertzog answered that Reformation’s meetings involve
reading and studying the Bible, prayer, singing, and fellowship.
(Id. ¶ 9.)
Ms. Kramer responded that Hertzog did not answer her
question directly and that she needed a “Yes or No” whether
Reformation would be conducting religious worship services.
(Id. ¶ 10.)
Hertzog replied that he could not answer that
question since he did not know how the Board defined “religious
worship services.”
(Id. ¶ 11.)
Soon thereafter, the Board’s
Lorenzo Arnoldo asked Hertzog for a detailed description of
Reformation’s meetings, and Hertzog responded in sum and
substance with the description quoted above.
(Id. ¶¶ 12-13.)
Mr. Arnoldo wrote Hertzog on January 6, 2012, that Reformation’s
permit had been denied and provided the following explanation:
37
“Chancellor’s Regulation D -180, which governs the extended use
of school buildings, prohibits a permit from being granted for
the purpose of holding religious worship services or otherwise
using a school as a house of worship.”
(Id. ¶ 14.)
The email string attached to Hertzog’s declaration
reveals the improper manner in which the Board inquires into
religious matters and ultimately determines whether particular
sectarian practices amount to “worship services,” a
determination that only subscribers to the religions themselves
(See id. Ex. B.)
may make.
In Bronx Appeal I, Judge Cabranes
presciently voiced concern over this form of excessive
governmental entanglement with religion that Revised SOP § 5.11
encourages.
See 127 F.3d 207, 221 (Cabranes, J., concurring in
part and dissenting in part) (“There may be cases in which the
parties dispute whether or not a proposed activity for which
permission to use school premises is denied actually constitutes
religious . . . worship, and the very act of making such
classifications may deeply-and unconstitutionally-entangle
public officials in essentially theological determinations.”).
The recent declarations submitted in this case illustrate that
Plaintiffs’ excessive entanglement concerns are real and ripe
for reconsideration.
While Defendants submitted no declaration on behalf of
a litigant with personal knowledge of the facts of this case,
38
counsel for defendants submitted a counter declaration to that
of Mr. Herzog.
(See Declaration of Jonathan Pines, dated
February 16, 2012 [Dkt. No. 127].)
Counsel asserts in his
declaration, inter alia:
[D]efendants’ requirement that Mr. Hertzog’s
organization certify that it will not engage
is [sic] religious worship services hardly
‘targets’ his, or any other organization’s,
religious viewpoint. Rather, as the [Court
of Appeals] has permitted the [Board] to do,
the permit process only seeks to ascertain,
by the applicant’s own representation,
whether it will be engaging in proscribed
religious worship services.
(Id. ¶ 9 (internal citation omitted).)
As evidenced in the
email string between Mr. Hertzog and the Board, this
characterization of the certification process differs from
counsel’s hearsay description at oral argument.
The Court
understood the Board’s new policy to require every applicant to
certify that it would comply with the Board’s entire policy
governing the use of school buildings during non-school hours.
For example, the certification requirement would be no different
for the Boy Scouts than for a synagogue seeking to hold Torah
study classes: each organization would have to certify that its
activities comply with the Board’s policy.
But apparently the
Board only asks those organizations that plan to use the schools
for religious purposes to certify compliance with the ban
against religious worship services.
39
The Board may then conduct
an independent evaluation of the religious applicant’s
activities to ensure compliance.
These revelations certainly
suggest that religious organizations are targeted throughout the
application process.
Defendants argue that any perceived targeting of
religious organizations’ permit applications is expressly
allowed under the majority’s opinion in Bronx Appeal III:
Without doubt there are circumstances where
a government official’s involvement in
matters of religious doctrine constitutes
excessive government entanglement. But it
does not follow, as Bronx Household seems to
argue, that the mere act of inspection of
religious conduct is an excessive
entanglement. The Constitution, far from
forbidding government examination of
assertedly religious conduct, at times
compels government officials to undertake
such inquiry in order to draw necessary
distinctions.
650 F.3d at 47 (footnote and citations omitted) (first emphasis
added).
The Court does not dispute this proposition or the
general characterization that “government officials cannot
discharge their constitutional obligations without close
examination of the particular conduct to determine if it is
properly deemed to be religious and if so whether allowing it
would constitute a prohibited establishment of religion.”
(emphasis added).
Essentially, the government may entangle
itself with religion so long as that entanglement is not
excessive.
40
Id.
The declarations recently filed in this case, however,
demonstrate that the Board does not engage in a “mere act of
inspection of religious conduct” when enforcing Revised SOP §
5.11.
Rather, the Board has evidenced a willingness to decide
for itself which religious practices rise to the level of
worship services and which do not, thereby causing the
government’s entanglement with religion to become excessive.
The Supreme Court in Widmar explained that such conduct is
impermissible:
[E]ven if the distinction [between religious
speech and religious worship] drew an
arguably principled line, it is highly
doubtful that it would lie within the
judicial competence to administer. Merely
to draw the distinction would require the
university-and ultimately the courts-to
inquire into the significance of words and
practices to different religious faiths, and
in varying circumstances by the same faith.
Such inquiries would tend inevitably to
entangle the State with religion in a manner
forbidden by our cases.
454 U.S. at 269 n.6 (citations omitted).
If such line-drawing
is not within the judicial competence, so also it is not within
the Board’s.
Furthermore, the excessive entanglement is not
diminished by what Defendants’ counsel represented to be the
Board’s plan regarding certification, viz., to require all
applicants to certify that their activities conform to the
Board’s policy.
As set out above, Pastor Hertzog listed the
41
activities Reformation planned to engage in and was then asked
whether those activities constituted religious worship services.
Even assuming the Board asked him whether Reformation’s proposed
activities conformed to the policy, he could not respond because
he did not know how the Board defined “religious worship
services.”
These unchallenged facts demonstrate that
implementation of Revised SOP § 5.11 as represented by counsel
would require the Board to define worship—a task beyond its (and
the Court’s) competence.
Finally, that the entanglement required by the current
policy, however implemented, is excessive is confirmed by the
Supreme Court’s recent decision in Hosanna-Tabor Evangelical
Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012).
There,
in deciding that the Free Exercise Clause and Establishment
Clause provide for a “ministerial exception” that bars a
minister from bringing an employment discrimination suit against
her church, the Court emphasized the wide berth religious
institutions are to be given with respect to their core
activities, including worship.
See id. at 706 (“By imposing an
unwanted minister, the state infringes the Free Exercise Clause,
which protects a religious group’s right to shape its own faith
and mission through its appointments.
According the state the
power to determine which individuals will minister to the
faithful also violates the Establishment Clause, which prohibits
42
government involvement in such ecclesiastical decisions.”).
Indeed, that the Court of Appeals itself undertook to attempt to
define worship in Bronx Appeal III merely illustrates the
problem of excessive governmental entanglement with religion
that led the Supreme Court to recognize the ministerial
exception in Hosanna-Tabor.
In light of the new facts
documenting how the Board’s current policy fosters excessive
governmental entanglement and the Supreme Court’s decision in
Hosanna-Tabor, the Court finds that Plaintiffs are likely to
succeed on the merits of their Establishment Clause claim.
C.
Plaintiffs’ Claims Are Not Barred by the Doctrines
of the Law of the Case, Claim Preclusion, and
Issue Preclusion
In response to Plaintiffs’ motion, Defendants do not
argue the merits of Plaintiffs’ claims but instead raise three
procedural arguments.
First, Defendants argue that the doctrine
of the law of the case bars consideration of Plaintiffs’ Free
Exercise Clause claim and Establishment Clause claim.
In
support of this argument, Defendants point to the Court of
Appeals’ decision in Bronx Appeal III and the briefs Plaintiffs
submitted on appeal in which they asserted both Free Exercise
Clause and Establishment Clause claims.
Defendants’ second and
third arguments rely upon the closely related doctrines of claim
preclusion and issue preclusion; Defendants contend these
doctrines bar relitigation of Plaintiffs’ Free Exercise Clause
43
claim because the Court of Appeals reached the merits of that
claim in Bronx Appeal I.
1.
The Court disagrees.
Law of the Case
The law of the case doctrine incorporates two
subsidiary rules, United States v. Ben Zvi, 242 F.3d 89, 95 (2d
Cir. 2001), only one of which pertains to this Court’s
obligations.
The “mandate rule” describes the duty of the
district court on remand.
“When an appellate court has once
decided an issue, the trial court, at a later stage of the
litigation, is under a duty to follow the appellate court’s
ruling on that issue.”
United States v. Tenzer, 213 F.3d 34, 40
(2d Cir. 2000) (internal quotation marks omitted) (emphasis
added).
“The mandate rule prevents re-litigation in the
district court not only of matters expressly decided by the
appellate court, but also precludes re-litigation of issues
impliedly resolved by the appellate court’s mandate.”
Yick Man
Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).
However,
in certain circumstances such as “a dramatic change in
controlling legal authority” or “significant new evidence that
was not earlier obtainable through due diligence but has since
come to light,” a district court may depart from the dictates of
the mandate.
United States v. Webb, 98 F.3d 585, 587 (10th Cir.
1996); see also Ben Zvi, 242 F.3d at 95 (citing Webb with
44
approval for its discussion of “circumstances when departure
from [the] mandate rule may be warranted”). 14
The mandate rule does not bar this Court from
considering Plaintiffs’ Free Exercise Clause and Establishment
Clause claims.
As an initial matter, the mandate reversed
summary judgment and vacated the permanent injunction, both of
which had been granted on free speech grounds only.
With
respect to the Free Exercise Clause claim, there can be no doubt
that the Court of Appeals failed to rule on it.
See, e.g.,
Bronx Appeal III, 650 F.3d at 58 n.4 (Walker, J., dissenting)
(“[T]his case was argued under the First Amendment’s Free Speech
and Establishment Clauses . . . .”).
In fact, the majority
mentions the Free Exercise Claim only twice in its twenty-page
opinion–once in a parenthetical and once in the accompanying
footnote.
Id. at 47 & n.15.
Given the cursory treatment that
the majority gives to the Free Exercise Clause it cannot be
argued that the Court expressly rejected Plaintiffs’ claim.
Furthermore, the Court of Appeals did not state that it had
14
The second subsidiary rule of the law of the case doctrine
holds that “a court of appeals must usually adhere to its own
decision at an earlier stage of the litigation” absent cogent or
compelling reasons such as “an intervening change of controlling
law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Tenzer, 213 F.3d at
39 (internal quotation marks omitted). This part of the law of
the case doctrine implicates the Court of Appeals’ discretion
only, not that of the district court.
45
considered Plaintiffs’ other claims and found them to be without
merit.
Thus, there is no ruling on the free exercise issue that
this Court is mandated to follow. 15
As for Plaintiffs’ Establishment Clause claim, the
recent declarations submitted by Pastors Hall and Hertzog
reflect “significant new evidence that was not earlier
obtainable through due diligence but has since come to light.”
Webb, 98 F.3d at 587.
This evidence was not obtainable when the
Court of Appeals decided Bronx Appeal III because the facts
alleged in the declarations occurred after the Court of Appeals
issued its mandate.
Because the Court finds that the facts
alleged therein significantly alter the majority’s excessive
entanglement analysis, reconsideration of Plaintiffs’
Establishment Clause claim is proper.
15
This is especially so in
This Court’s reading of the Court of Appeals’ mandate would be
different had this Court granted summary judgment and the
permanent injunction on multiple grounds, including Plaintiffs’
Free Exercise Clause and Establishment Clause claims, but the
Court of Appeals had still issued the same opinion as in Bronx
Appeal III reversing judgment and vacating the injunction. In
that scenario, the Court of Appeals’ failure to address any
other issue besides the free speech analysis would signal an
implied rejection of the other claims. But those are not the
facts. Additionally, neither the Court of Appeals’ refusal to
rehear Bronx Appeal III en banc nor the Supreme Court’s denial
of certiorari indicates an implied rejection of Plaintiffs’ Free
Exercise Clause and Establishment Clause claims. Defense
counsel at oral argument acknowledged that one “cannot read too
much into” any such denial, (see Prelim. Inj. Hr’g Tr. at 1617), and the Court itself is in no better position to do so.
46
light of the Court’s preference for deciding cases on their
merits. 16
2.
Claim Preclusion and Issue Preclusion
The doctrine of claim preclusion, or res judicata,
precludes parties to a litigation or their privies from
relitigating issues that were or could have been raised prior to
a final judgment on the merits.
See Allen v. McCurry, 449 U.S.
90, 94 (1980); Monahan v. N.Y. City Dep’t of Corr., 214 F.3d
275, 284-85 (2d Cir. 2000).
The factors a court may consider
when deciding whether a final judgment on one claim has
preclusive effect on a subsequent claim include whether the same
series of transactions is at issue, whether the claims rely on
common evidence, and whether facts essential to the subsequent
claim were in play when the first claim was considered.
Monahan, 214 F.3d at 285.
See
A party raising the affirmative
defense of claim preclusion must show “(1) the previous action
involved an adjudication on the merits; (2) the previous action
involved the plaintiffs or those in privity with them; [and] (3)
the claims asserted in the subsequent action were, or could have
been, raised in the prior action.”
16
Id.
While the Supreme Court’s decision in Hosanna-Tabor might not
amount to “a dramatic change in controlling legal authority,” it
certainly strengthens Plaintiffs’ excessive entanglement claim
and speaks to the significance of the new evidence highlighted
in the declarations. Therefore, Hosanna-Tabor also factors into
this Court’s determination that the mandate rule does not bar
Plaintiffs’ Establishment Clause claim.
47
Distinct from but related to the doctrine of claim
preclusion is the doctrine of issue preclusion, or collateral
estoppel.
Issue preclusion holds that “once a court has decided
an issue of fact or law necessary to its judgment, that decision
may preclude relitigation of the issue in a suit on a different
cause of action involving a party to the first case.”
449 U.S. at 94.
Allen,
A party raising the affirmative defense of
issue preclusion must show “(1) the issues in both proceedings
are identical, (2) the issue in the prior proceeding was
actually litigated and actually decided, (3) there was full and
fair opportunity to litigate in the prior proceeding, and (4)
the issue previously litigated was necessary to support a valid
and final judgment on the merits.”
Transaero, Inc. v. La Fuerza
Aerea Boliviana, 162 F.3d 724, 731 (2d Cir. 1998) (quoting In re
PCH Assocs., 949 F.2d 585, 593 (2d Cir. 1991)).
Defendants argue that both these doctrines bar
relitigation of Plaintiffs’ Free Exercise Clause claim in this
case because the Court of Appeals rejected Plaintiffs’ Free
Exercise Clause claim in the first litigation.
In Bronx Appeal
I, the Court of Appeals considered a free exercise challenge to
Revised SOP § 5.11’s predecessor—which prohibited outside
organizations from using the Board’s schools for “religious
services or religious instruction”—and found it lacking in
merit:
48
[Plaintiffs] contend that “[t]he School
District flagrantly violates the Free
Exercise Clause by singling out religious
services and instruction for exclusion from
its forum.” To support this contention,
[Plaintiffs] cite Employment Division,
Department of Human Resources v. Smith and
Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah. Each of these cases
involved specific religious practices-the
ingestion of peyote in Smith and animal
sacrifice in Church of the Lukumi. . . .
. . . .
The state statute and SOP under
consideration in this case do not bar any
particular religious practice. They do not
interfere in any way with the free exercise
of religion by singling out a particular
religion or imposing any disabilities on the
basis of religion. The members of the
Church here are free to practice their
religion, albeit in a location separate from
[the Board’s public schools]. “The free
exercise of religion means, first and
foremost, the right to believe and profess
whatever religious doctrine one desires.”
Smith, 494 U.S. at 877. That right has not
been taken from the members of the Church.
127 F.3d at 216 (citations omitted).
Defendants argue that even
though a different policy was at issue in Bronx Appeal I, since
that policy prohibited more religious activity than the current
policy, the Court of Appeals’ free exercise analysis remains
undisturbed and therefore precludes Plaintiffs from raising a
free exercise challenge in this case.
Defendants’ claim preclusion and issue preclusion
arguments suffer from the same fatal flaw.
49
Despite accurately
stating the respective tests for each doctrine Defendants fail
to show how each element is satisfied on the facts of this case,
and they cannot do so.
As to claim preclusion, Defendants
cannot demonstrate that Plaintiffs raised or could have raised
their current Free Exercise Clause claim, based on Revised SOP
§ 5.11, in the first litigation.
With respect to issue
preclusion, Defendants cannot demonstrate that the issues in
both proceedings are identical.
This is so because Defendants
overlook a key aspect of Plaintiffs’ free exercise challenge to
the Board’s current policy.
Even though the former version of
the policy arguably excluded more religious activities because
it prohibited religious instruction, Revised SOP § 5.11’s ban on
“religious worship services” discriminates among religions.
Because only “ordained” religions are excluded under the
“religious worship services” prong whereas religions with less
formal worship practices are not, Plaintiffs argue that the
current policy singles out certain religions in violation of the
Free Exercise Clause.
At the very least, Plaintiffs’ modified
free exercise challenge—the exact contours of which could not
have taken shape under the old policy at issue in Bronx Appeal
I—warrants analysis under the test outlined in Lukumi.
Because
the Court of Appeals has yet to weigh in on that analysis in
light of the current policy’s scope, Plaintiffs’ Free Exercise
Clause claim is not procedurally barred.
50
IV.
CONCLUSION
For the foregoing reasons! Plaintiffs! Motion
Preliminary Injunction [Dkt. No. 114] is GRANTED.
are enjoined from enforcing Ch. Reg. D-180
§
Defendants
I.Q so as to deny
Plaintiffs! application or the application of any similarlysituated individual or entity to rent space in the Board!s
public schools for morning meetings that include religious
worship. 17
SO ORDERED.
Dated:
New York! New York
February 24! 2012
UNITED STATES DISTRICT JUDGE
The Court is! of course! aware of the Court of Appeals! order
applying the temporary restraining order only to named Plaintiff
Bronx Household of Faith. With respect! however! if a rule is
unconstitutional! it is unconstitutional as to all similarly
situated parties. Defendants obviously recognized this in
permitting many non-party congregations to meet during non
school hours during the pendency of the prior injunctions.
Also! the Court of Appeals made no suggestion in any of the
three full opinions it issued heretofore that the prior
injunctions extended only to the named Plaintif
Thus! with
respect! this order extends to the Bronx Household of Faith and!
in addition! to any similarly-situated party.
17
51
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