The Bronx Household, et al v. Board of Education, et al
ORDER # 102014 granting 148 Motion for Summary Judgment; denying 158 Motion for Summary Judgment. For the foregoing reasons, Plaintiffs motion for summary judgment [Dkt. No. 148] is GRANTED, and Defendants cross-motion for summary judgment [Dkt. No. 158] is DENIED. Defendants are permanently enjoined from enforcing Ch. Reg. D-180 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 meetings that include religious worship. (Signed by Judge Loretta A. Preska on 6-29-12) (mph) Modified on 6/29/2012 (ft).
UNITED. STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE BRONX HOUSEHOLD OF FAITH,
ROBERT HALL, and JACK ROBERTS,
01 Civ. 8598
OPINION AND ORDER
BOARD OF EDUCATION OF THE CITY OF
NEW YORK and COMMUNITY SCHOOL
DISTRICT NO. 10 1
--------- -- -- --- -x
LORETTA A. PRESKA, Chief United States District Judge:
The Bronx Household of Faith, Robert Hall, and Jack
Roberts ("Plaintiffs") seek a permanent injunction against the
Board of Education of the City of New York (the "Board")l and
Community School District No. 10 (collectively, "Defendants") so
ntiffs' Church may continue to hold Sunday religious
worship services in a New York City public school, 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 Plaintiffs from conducting
their religious worship services in the Board's schools.
On February 24, 2012, the Court issued an order [Dkt.
No. 131] granting Plaintiffs' most recent motion for a
Not so far into this litigation the Board of Education was
renamed the Department of Education. While this opinion remains
faithful to the captioned name, references to the Board should
be treated as synonymous with the Department of Education.
preliminary injunction and enjoining Defendants from enforcing
Chancellor’s Regulation D-180 so as to deny Plaintiffs’
application or the application of any similarly-situated
individual or entity to rent space in Defendants’ public schools
for morning meetings that include religious worship.
See -- F.
Supp. 2d --, 2012 WL 603993 (S.D.N.Y. Feb. 24, 2012) (“Bronx
Defendants immediately appealed, but the Court of
Appeals declined to hear the appeal and instead directed this
Court to render a final judgment.
See Bronx Household of Faith
v. Bd. of Educ. of the City of N.Y., No. 12-0751, slip op. at 2
(2d Cir. Feb. 29, 2012).
Consequently, the parties agreed to
expedite limited discovery and set a briefing schedule for
submitting their cross-motions for summary judgment.
heard oral argument on the motions on June 1, 2012.
reasons stated below, Plaintiffs’ motion for summary judgment is
GRANTED, and Defendants’ cross-motion for summary judgment is
For consistency’s sake, the case abbreviations used in this
opinion to refer to the multiple pronouncements in this
litigation in both this Court and the Court of Appeals follow
those this Court used in its February 2012 opinion.
The Court has considered the following submissions in
connection with the parties’ motions: Memorandum of Law in
Support of Plaintiffs’ Motion for Summary Judgment; Plaintiffs’
Opposition to Defendants’ Cross-Motion for Summary Judgment and
Reply in Further Support of Plaintiffs’ Motion for Summary
Judgment; Memorandum of Law of Amicus Curiae the Becket Fund for
(cont’d on next page)
(cont’d from previous page)
Religious Liberty in Support of Plaintiffs’ Motion for Summary
Judgment (“Becket Mem.”); Memorandum of Law of Amici Curiae
Council of Churches of the City of New York et al. in Support of
Plaintiffs’ Motion for Summary Judgment; Plaintiffs’ Response to
Defendants’ Re-Filed 2005 Statement of Material Facts Pursuant
to Rule 56.1 (“Pl. 56.1”); Plaintiffs’ Response to Defendants’
Supplemental Statement of Material Facts (“Pl. Suppl. 56.1”);
Declaration of Jordan W. Lorence in Support of Plaintiffs’
Motion for Summary Judgment, dated April 20, 2012 (“Lorence
Decl.”); Second Declaration of Katie Lynn Geleris in Support of
Plaintiffs’ Motion for Summary Judgment, dated May 11, 2012
(“Geleris Decl.”); Second Declaration of Travis C. Barham in
Support of Plaintiffs’ Motion for Summary Judgment, dated May
14, 2012 (“Barham Decl.”); Declaration of Brad Hertzog, Pastor
of Reformation Presbyterian Church, in Support of Plaintiffs’
Motion for Summary Judgment, dated April 19, 2012 (“Hertzog
Decl.”); Declaration of Ryan Holladay, Pastor of Lower Manhattan
Community Church, in Support of Plaintiffs’ Motion for Summary
Judgment, dated May 2, 2012 (“Holladay Decl.”); Declaration of
Marilynn N. Cole in Support of Plaintiffs’ Motion for Summary
Judgment, dated May 10, 2012 (“Cole Decl.”); Declaration of
Jeremy Del Rio in Support of Plaintiffs’ Motion for Summary
Judgment, dated May 11, 2012 (“Del Rio Decl.”); Declaration of
Robert Hall in Support of Plaintiffs’ Motion for Summary
Judgment, dated May 14, 2012 (“Hall Decl.”); Memorandum of Law
in Support of Defendants’ Cross-Motion for Summary Judgment and
in Opposition to Plaintiffs’ Motion for Permanent Injunction
(“Def. Mem.”); Defendants’ Reply Memorandum (“Def. Reply Mem.”);
Defendants’ Response to Plaintiffs’ Rule 56.1 Statement of
Undisputed Material Facts in Support of Their Motion for Summary
Judgment (“Def. 56.1”); Declaration of Jonathan Pines in Support
of Defendants’ Cross-Motion for Summary Judgment, dated April
20, 2012; Declaration of Sandy Brawer in Support of Defendants’
Cross-Motion for Summary Judgment, dated April 20, 2012 (“Brawer
Decl.”); Declaration of Lois Herrera in Support of Defendants’
Cross-Motion for Summary Judgment, dated May 12, 2012 (“Herrera
Decl.”); Declaration of Tom W. Smith in Support of Defendants’
Cross-Motion for Summary Judgment, dated May 15, 2012;
Supplemental Declaration of Jonathan Pines in Support of
Defendants’ Cross-Motion for Summary Judgment, dated May 15,
2012; and Supplemental Declaration of Charles Carey in Support
of Defendants’ Cross-Motion for Summary Judgment, dated May 15,
2012 (“Carey Decl.”).
The history of this litigation, which dates back to
1995, has been recounted multiple times throughout its multiple
movements between this Court and the Court of Appeals, including
most recently in this Court’s February 2012 opinion granting
Plaintiff’s motion for a preliminary injunction.
2012 WL 603993, at *1-4.
See Bronx III,
The Court thus presumes the readers’
familiarity with the facts of the case and recites here only
those facts most pertinent to the parties’ cross-motions for
summary judgment, especially those which have come to light
during recent discovery.4
The Bronx Household of Faith (the “Church”) is a 37year-old, “community-based” Christian church.
Id. at *1.
Approximately ninety people currently attend the Church,
including thirty children.
(Hall Decl. ¶ 5.)
Pursuant to an
initial preliminary injunction granted in an earlier phase of
this litigation, 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.
For a recitation of the facts involving earlier phases of this
litigation, see this Court’s prior 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”). For a discussion of the
procedural history that led to Plaintiffs’ recent request for a
preliminary injunction, see Bronx III, 2012 WL 603993, at *4.
2012 WL 603993, at *1.
The Church has moved five times since
its inception, each move necessitated by the need for a larger
space to accommodate all those who attend the Church’s services
(Hall Decl. ¶ 4.)
P.S. 15 currently serves the
Church’s need to “meet collectively in one location so that [all
its members] can fellowship together during . . . service[s],”
which is “vitally important to the Church’s theological
(Id. ¶ 6.)
None of the Church’s previous meeting
locations can accommodate all the Church’s current attendees.
The Board owns and controls 1,197 school facilities in
New York City.
(Def. 56.1 ¶ 8.)
Defendants seek to enforce in
full Chancellor’s Regulation D-180 (“Ch. Reg. D-180”), which
constitutes the Board’s policy on granting “extended use”
permits to use the Board’s schools for activities occurring
outside normal school hours and on days when schools are not in
Ch. Reg. D-180 generally authorizes the use of school
facilities for “holding social, civic, and recreational meetings
and entertainment, and other uses pertaining to the welfare of
the community,” provided that “such uses shall be non-exclusive
(Id. ¶¶ 11-13.)
and open to the general public.”
of Ch. Reg. D-180 provides that “[n]o permit shall be granted
for the purpose of holding religious worship services, or
otherwise using a school as a house of worship.”5
(Id. ¶¶ 11,
However, the regulation also provides that “[p]ermits 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 granted to other
clubs for students that are sponsored by outside organizations.”
(Id. ¶¶ 11, 17.)
Pursuant to Ch. Reg. D-180, Defendants allow
community-based organizations to use the Board’s public school
facilities after school hours, including week nights, weekends,
holidays, and over the summer.
(Id. ¶ 12.)
all permit holders to post a disclaimer on any public notice or
other material, including media and the Internet, that states:
“This activity is not sponsored or endorsed by the New York City
Department of Education or the City of New York.”
(Id. ¶ 25.)
The Preliminary Injunction
On February 24, 2012, this Court granted Plaintiffs’
motion for a preliminary injunction.
The Court found the
deprivation of Plaintiffs’ First Amendment free exercise rights
to constitute irreparable harm.
Bronx III, 2012 WL 603993, at
For simplicity’s sake, as well as to be consistent with the
parties’ apparent preference, going forward this opinion uses
the abbreviation “Ch. Reg. D-180” to refer specifically to
section I.Q of the regulation. Only section I.Q of Chancellor’s
Regulation D-180 is being challenged in this litigation. To be
clear, this opinion should not be read as invalidating the
entire regulation but rather only section I.Q. The Board
currently implements the remaining provisions of the regulation
without issue and remains free to do so.
Regarding Plaintiffs’ likelihood of success on the merits,
the Court first found that under the Supreme Court’s Free
Exercise Clause analysis in Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 532-33 (1993), Ch. Reg. D-180 is
not neutral both on its face—because it “refers to a religious
practice without a secular meaning discernable from the language
or context”—and because it “discriminates between those
religions that fit the ‘ordained’ model of formal religious
worship services and those religions whose worship practices are
far less structured.”
2012 WL 603993, at *6-7 (internal
quotation marks and citations omitted).
Having found the regulation not to be neutral, the
Court noted that Ch. Reg. D-180 only passes constitutional
muster if it meets a strict scrutiny analysis, meaning
Defendants must show the policy serves a compelling state
interest and is narrowly tailored to advance that interest.
The Court then found that Defendants could not satisfy
either prong of the strict scrutiny analysis.
First, the Court
found that the Board’s stated interest in avoiding the
perception that it was endorsing religion is not sufficiently
compelling because allowing religious worship services in the
Board’s schools during non–school hours does not violate the
Id. at *8-10.
This is particularly true
given that the objective observer would “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.”
Id. at *9.
Second, the Court found that Ch. Reg. D-180 does not
even advance the Board’s stated interest because, in light of
the types of religious activities that are expressly permitted
in the Board’s schools under Good News Club v. Milford Central
School, 533 U.S. 98 (2001), e.g., prayer, religious instruction,
expression of devotion to God, and the singing of hymns, the
policy’s ban on religious worship services is ineffective.
WL 603993, at *10-11 (“Because the individual elements of
[worship] 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.”).
The Court further found that Ch. Reg. D-
180 is not narrowly tailored “[b]ecause the Board has not shown
that other, less restrictive measures would fail to advance the
Board’s stated interest.”
Id. at *11-12.
In addition, based on new evidence regarding how the
Board was implementing Ch. Reg. D-180 and the Supreme Court’s
recent decision in Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC, 132 S. Ct. 694 (2012), the Court found that the
policy violates the Establishment Clause by fostering excessive
government entanglement with religion.
2012 WL 603993, at *12-
Finally, the Court found that Plaintiffs’ Free Exercise
Clause and Establishment Clause claims were not procedurally
Id. at *17-19.
Plaintiffs now seek to convert the February 2012
preliminary injunction into a permanent injunction by way of
their motion for summary judgment and reassert that Ch. Reg. D180 violates their free exercise rights and fosters excessive
government entanglement with religion in violation of the
Defendants, for their part, reargue that enforcing Ch.
Reg. D-180’s ban on religious worship services does not violate
Plaintiffs’ free exercise rights and that enforcing the ban is
in fact necessary to avoid violating the Establishment Clause.
Defendants also restate that implementation of Ch. Reg. D-180
does not require Defendants to entangle themselves excessively
with religion, and therefore the policy does not run afoul of
the Establishment Clause.
Having considered the latest evidence and the parties’
respective arguments, the Court determines that its reasons for
granting Plaintiffs’ motion for a preliminary injunction were
sound and that implementation of Ch. Reg. D-180 violates both
the Free Exercise Clause and the Establishment Clause.
than merely repeat here the reasoning set forth in Bronx III—
which, to be sure, the Court readopts—this opinion primarily
addresses why Defendants’ latest arguments fail.6
LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when no genuine
dispute as to any material fact exists and the moving party is
entitled to judgment as a matter of law.
See Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
The substantive law governing the suit identifies the
essential elements of the claims asserted and therefore
indicates whether a fact is material; a fact is material if it
“might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[T]he dispute about a material fact is ‘genuine’ . . . if the
The Court here briefly disposes of Defendants’ procedural
arguments. In support of their cross-motion for summary
judgment, Defendants “reassert, and incorporate by reference”
their arguments presented in opposition to Plaintiffs’ motion
for a preliminary injunction that Plaintiffs’ Free Exercise
Clause and Establishment Clause claims are procedurally barred.
(Def. Mem. at 33-34.) The Court similarly incorporates by
reference the reasons stated in Bronx III why the Court
disagrees. 2012 WL 603993, at *17-19. The Court notes that the
Court of Appeals apparently disagrees with Defendants’
procedural arguments, too. See Bronx Household of Faith v. Bd.
of Educ. of the City of N.Y., No. 12-0751, slip op. at 2 (2d
Cir. Feb. 29, 2012) (“In the twelfth year of this litigation,
the district court has granted a new preliminary injunction
adjudicating grounds previously not addressed.” (emphasis
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
To determine whether a genuine dispute of material
fact exists, a court must review the record in the light most
favorable to the nonmoving party and draw all reasonable
inferences in its favor.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Lucente v. IBM
Corp., 310 F.3d 243, 253 (2d Cir. 2002).
“A party asserting
that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in
the record . . . .”
Fed. R. Civ. P. 56(c)(1)(A).
here, an affidavit is used to support or oppose the motion, it
“must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is
competent to testify on the matters stated.”
Fed. R. Civ. P.
56(c)(4); see Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008).
Ultimately, the court
must grant summary judgment “if, under the governing law, there
can be but one reasonable conclusion as to the verdict.”
Anderson, 477 U.S. at 250.
The Court finds Plaintiffs have satisfied their burden
of demonstrating that no genuine dispute as to any material fact
exists and that they are entitled to judgment as a matter of law
on their Free Exercise Clause and Establishment Clause claims.
Each claim is addressed below.
Ch. Reg. D-180 Violates the Free Exercise Clause
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
Lukumi, 508 U.S. at 532.
In Bronx III,
2012 WL 603993, at *6-12, the Court found that Ch. Reg. D-180
unconstitutionally burdens Plaintiffs’ free exercise rights
under the test laid out in Lukumi because it is not neutral and
does not satisfy strict scrutiny.
See Lukumi, 508 U.S. at 546
(“A law burdening religious practice that is not neutral or not
of general application must undergo the most rigorous of
To satisfy the commands of the First Amendment, a law
restrictive of religious practice must advance interests of the
highest order and must be narrowly tailored in pursuit of those
interests.” (internal quotation marks omitted)); see also Fifth
Ave. Presbyterian Church v. City of N.Y., 293 F.3d 570, 574 (2d
Cir. 2002) (“Government enforcement of laws or policies that
substantially burden the exercise of sincerely held religious
beliefs is subject to strict scrutiny.”).
Plaintiffs and amici curiae agree with the Court’s
prior conclusion that Ch. Reg. D-180 is unconstitutional under
Defendants, on the other hand, raise three primary
objections to that conclusion.
First, Defendants argue that Ch.
Reg. D-180 does not burden, let alone substantially burden,
Plaintiffs’ free exercise rights.
Second, they argue that
Lukumi and strict scrutiny do not apply to the facts of this
Instead, they urge the Court to adopt the reasoning of
Locke v. Davey, 540 U.S. 712 (2004), under which Defendants say
Ch. Reg. D-180 passes constitutional muster.
Defendants argue that even if Lukumi applies, Ch. Reg. D-180
withstands strict scrutiny.
The Court finds all three
objections to be without merit.
Ch. Reg. D-180 Burdens Plaintiffs’ Free Exercise
In Bronx III, the Court highlighted the burdens on
Plaintiffs’ free exercise rights that would result from
Defendants’ implementation of Ch. Reg. D-180.
The Court noted:
Plaintiffs claim that because [Ch. Reg.
D-180] 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.” “[The] entire
congregation could no longer worship
together,” which would “undermine the
fellowship” that is a “vital aspect of [the
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.” “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.”
2012 WL 603993, at *5 (citations omitted) (all but the first
alteration in original).
Defendants raise two grounds—one legal
and the other factual—for why the foregoing does not constitute
any burden on Plaintiffs’ free exercise rights.
First, Defendants cite the Court of Appeals’
determination that the predecessor to Ch. Reg. D-180 did not
raise any free exercise concerns to suggest that the current
regulation is similarly immune from any free exercise challenge:
“[P]laintiffs’ rights under the Free Exercise Clause are not
burdened because [Ch. Reg. D-180] does ‘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’
. . . .”
(Def. Mem. at 5 (quoting 127 F.3d 207, 216 (2d Cir.
1997) (“Bronx Appeal I”)).)
But this, of course, is no longer
true with respect to Ch. Reg. D-180 because the new regulation
both discriminates against religion on its face and
discriminates among religions.
See Bronx III, 2012 WL 603993,
Moreover, Plaintiffs’ Church has grown considerably
since the Court of Appeals decided Bronx Appeal I.
regard, the remainder of the quote that Defendants cite, with
all due respect, is stale:
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.” That right has not
been taken from the members of the Church.
Bronx Appeal I, 127 F.3d at 216 (quoting Emp’t Div. v. Smith,
494 U.S. 872, 877 (1990)).
This characterization of Ch. Reg. D-
180’s effect on Plaintiffs’ free exercise rights ignores the
thrust of Lukumi that besides protecting “the right to believe
and profess whatever religious doctrine one desires,” the Free
Exercise Clause also bans government interference with religious
“outward physical acts,” Hosanna-Tabor, 132 S. Ct. at 707, such
as the conduct of worship services at issue in this case, see
650 F.3d 30, 37 (2d Cir. 2011) (“Bronx Appeal III”) (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” (emphasis
Because the unopposed testimony is that P.S. 15 is the
“only location in which [Plaintiffs] can afford to gather as a
full congregation without having to curtail other of their
religious practices,” Bronx III, 2012 WL 603993, at *5 (emphasis
added), it cannot be gainsaid that Ch. Reg. D-180 burdens
Plaintiffs’ free exercise rights.7
Second, Defendants argue that because Plaintiffs’
Church has moved five times since its inception and “has not
only survived such relocations, but has grown after each one”
and because certain members of the Church own five houses within
one block of P.S. 15—“sites that are not only potentially
available for the Church’s use, but are, in fact, currently
being used by [Plaintiffs] for Church-related activities”—
Even the Court in Locke—which Defendants urge is the more
appropriate case to apply on the facts of this litigation, see
infra Part III.A.2—acknowledged that the challenged law there
placed some burden on the plaintiff’s free exercise rights.
See, e.g., Locke, 540 U.S. at 725 (“[T]he exclusion of . . .
funding [the pursuit of devotional degrees] places a relatively
minor burden on [plaintiff].”). If the challenged law in Locke,
which excluded students who were pursuing a degree in devotional
theology from participating in a state scholarship program, at
least placed some form of burden—if only a “relatively minor”
one—on the free exercise of religion, surely so does Ch. Reg. D180’s ban on religious worship services.
enforcing Ch. Reg. D-180 so as to ban the Church from holding
its Sunday worship services in the Board’s schools will not
cause any harm to Plaintiffs.
(Def. Mem. at 4.)
argument ignores the undisputed testimony of Plaintiff Hall that
no other location besides P.S. 15 currently facilitates the
Church’s religious mandate to worship as an entire congregation.
Furthermore, if forced to worship elsewhere, the Church would
have no choice but “to reduce and/or eliminate ministries to
[the Church’s] members and . . . local community.”
2012 WL 603993, at *5 (alterations in original).
though the Church is in the process of constructing its own
building as a permanent place to hold its worship services, that
building is not yet complete.
(Pl. Suppl. 56.1 ¶ 6.)
and given the uniquely expensive and crowded real estate market
in which the Church resides, eviction from the Board’s schools
would amount to a concrete loss of religious freedom.8
Ultimately, given the plain text of Ch. Reg. D-180,
Defendants’ attempt to marshal the Church’s resources and
dictate how those resources should be deployed gives the Court
great concern because it suggests that Defendants believe they
know best how the Church should conduct its religious affairs.
But only Plaintiffs may “decide for themselves, free from state
interference, [such] matters of church government as well as
those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral
of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952).
Certainly Plaintiffs’ assessment of what qualifies as sufficient
space to conduct the Church’s worship services is an “internal
church decision,” which is outside Defendants’ regulatory
authority. Hosanna-Tabor, 132 S. Ct. at 706-07.
the additional fact that the regulation discriminates among
religions, controlling caselaw regarding what constitutes a
burden on the free exercise of religion, and Plaintiff Hall’s
unopposed testimony that the Church would be forced to curtail
its religious practices were it no longer allowed to hold its
worship services in P.S. 15, the Court rejects Defendants’
argument that Ch. Reg. D-180 places no burden on Plaintiffs’
free exercise rights.
Lukumi and Strict Scrutiny Apply to Plaintiffs’
Free Exercise Clause Claim
In Bronx III, the Court touched upon Defendants’
argument that the test in Lukumi should not apply on the facts
of this case due to the existence here of a competing
Establishment Clause concern.
The Court noted:
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 [Ch. Reg. D-180] 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 [Ch. Reg.
D-180] 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.
2012 WL 603993, at *7 n.10; 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
Defendants have elaborated on their argument that
Lukumi is inapplicable for purposes of the pending cross-motions
for summary judgment, but the Court remains unpersuaded.
First, Defendants argue that applying Lukumi’s strict
scrutiny analysis in the presence of Defendants’ competing
Establishment Clause concern would essentially render the
Establishment Clause meaningless.
If plaintiffs’ expansive reading of
Lukumi were to prevail, most government
restrictions on religious activity that have
been upheld based upon Establishment Clause
concerns–for example, the prohibition on
prayer in public schools, see Engel v.
Vitale, 370 U.S. 421 (1962)–would instead
have been struck down on free exercise
grounds as “non-neutral” to religious
expression and exercise. The flaw in this
analysis is that, extended to its logical
conclusion, the reasoning would find every
Establishment Clause concern advanced by the
government, necessarily singling out as its
concern religious speech and conduct, to be
unconstitutionally “non-neutral” and
therefore presumptively unconstitutional.
(Def. Mem. at 10.)
As an initial matter, the Court notes that
Defendants mischaracterize the posture of Engel.
In that case,
the state defendants had adopted a policy “direct[ing] the
School District’s principal to cause . . . [a] prayer to be said
aloud by each class in the presence of a teacher at the
beginning of each school day.”
Engel, 370 U.S. at 422-23.
parents of ten students affected by the policy subsequently
brought suit alleging that a mandate of prayer in public schools
violated the Establishment Clause, id. at 423, and the Supreme
Court agreed, see id. at 424 (“We think that by using its public
school system to encourage recitation of . . . prayer, the State
of New York has adopted a practice wholly inconsistent with the
Thus, it was the Supreme Court—not a
state actor—that announced the prohibition on prayer in public
Because no state law involving a “government
restriction on religious activity” was at issue in Engel,
(Def. Mem. at 10), Defendants’ citation thereto does not support
See also generally Lee v. Weisman, 505 U.S. 577
(1992) (finding similar Establishment Clause violation in public
school district’s inclusion of prayer in its graduation
But even putting aside Defendants’ mischaracterization
of the posture of the “school prayer” cases, it is important to
note that those cases did not involve competing Free Exercise
That is, the proponents of the policies that
introduced prayer in the public schools did not assert a free
exercise justification to counter the Establishment Clause
concerns raised by the plaintiffs.
Nor could they, as no burden
was placed on the free exercise of religion in the absence of
the policies that mandated school prayer.
The school prayer
cases, therefore, stand for the unremarkable proposition that
“[t]he principle that government may accommodate the free
exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause.”
Lee, 505 U.S.
at 587 (emphasis added).
In the absence of a burden on the free exercise of
religion9 and the presence of a concrete Establishment Clause
violation, the school prayer cases were relatively simple cases.
An entirely different situation is presented here, however,
Because freedom of religion also means freedom from religion,
one of the concurrences in Lee viewed as coercion the mandatory
nature of the graduation ceremonies that included prayer, in
violation of the Free Exercise Clause. See 505 U.S. at 621
(Souter, J., concurring) (“[L]aws that coerce nonadherents to
support or participate in any religion or its exercise would
virtually by definition violate their right to religious free
exercise.” (internal quotation marks and citation omitted)).
Thus, the school prayer cases may be characterized as presenting
both Establishment Clause and Free Exercise Clause violations on
the same side of the coin. This case, in contrast, does not
implicate the issue of coercion because Plaintiffs’ meetings
occur on Sundays (i.e., during non-school hours) and no student
is forced to attend them.
where at issue is not the accommodation of religion but rather
the burdening of religion, see supra Part III.A.1, and where no
actual Establishment Clause violation is of concern, see infra
In other words, Defendants’ argument that
applying Lukumi to the facts of this case reads the
Establishment Clause out of the Constitution is simply not true:
a concern over an actual violation of the Establishment Clause
could certainly justify a burden on the free exercise of
religion under Lukumi.10
Justice Scalia’s dissent in Locke addressed a similar argument
to the one Defendants put forth here and explained why it is
really just form over substance:
Equally unpersuasive is the
[majority’s] argument that the State may
discriminate against theology majors in
distributing public benefits because the
Establishment Clause and its state
counterparts are themselves discriminatory.
The [majority’s] premise is true at some
level of abstraction-the Establishment
Clause discriminates against religion by
singling it out as the one thing a State may
not establish. All this proves is that a
State has a compelling interest in not
committing actual Establishment Clause
violations. We have never inferred from
this principle that a State has a
constitutionally sufficient interest in
discriminating against religion in whatever
other context it pleases, so long as it
claims some connection, however attenuated,
to establishment concerns.
540 U.S. at 730 n.2 (Scalia, J., dissenting) (citations
omitted). Furthermore—and somewhat ironically—Defendants’
(cont’d on next page)
Defendants next argue that given the competing
interests of Plaintiffs’ free exercise rights and Defendants’
purported Establishment Clause concern, the Court should decline
to apply strict scrutiny based on the reasoning set forth in
The plaintiff in that case was a resident of the State
of Washington who was awarded a state-funded college
See 540 U.S. at 715-17.
Pursuant to the
Washington State Constitution, however, no student who was
pursuing a degree in devotional theology could participate in
the scholarship program.
Id. at 716.
The plaintiff, who sought
to use his scholarship to pursue a degree in pastoral
ministries, brought suit against certain state officials
alleging the State’s refusal to apply the scholarship towards a
degree in devotional theology violated, inter alia, his free
Id. at 718.
The Court of Appeals declared the
scholarship program unconstitutional under Lukumi because it
found that the State had singled out religion for unfavorable
treatment, thereby triggering strict scrutiny, and that the
State’s Establishment Clause concerns were not sufficiently
(cont’d from previous page)
position that a state actor requires only a rational basis
regarding an antiestablishment concern in order to justify
religious discrimination threatens to nullify the Free Exercise
Clause. See id. (“If religious discrimination required only a
rational basis, the Free Exercise Clause would impose no
constraints other than those the Constitution already imposes on
all government action.”).
The Supreme Court reversed, finding that the “‘room
for play in the joints’” between the Religion Clauses permitted
the scholarship program’s challenged exclusion.
Id. at 718
(quoting Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 669
“In other words, there are some state actions
permitted by the Establishment Clause but not required by the
Free Exercise Clause.”
Id. at 718-19.
The Court held that the
Establishment Clause did not require Washington to ban the
funding of religious instruction that prepares students for the
ministry, even if the Washington State Constitution did.
Additionally, given Washington’s only “mild”
disfavor of religion, id. at 720-21 (“The State has merely
chosen not to fund a distinct category of instruction.”), and
the unique historical concern that most States had “around the
time of the founding . . . against using tax funds to support
the ministry,” id. at 723, the Court decided that Lukumi’s
“presumption of unconstitutionality”—i.e., strict scrutiny—did
not apply, id. at 725 (“Given the historic and substantial
interest at issue, we therefore cannot conclude that the denial
of funding for vocational religious instruction alone is
inherently constitutionally suspect.”).
Having decided not to
apply strict scrutiny, the Court upheld the challenged law.
But the Court also did not articulate the exact test it was
applying other than to say the scholarship program’s carve-out
was permitted by the “play in the joints” between the Religion
See id. at 730 (Scalia, J., dissenting) (“[T]he
[majority’s] opinion is devoid of any mention of standard of
review . . . .”).
In light of the facts of this case, the Court rejects
Defendants’ argument that Locke is the more appropriate case to
For starters, the Court in Locke made clear that the
scholarship program at issue was “not a forum for speech” and
that consequently the Court’s cases dealing with speech forums
were “simply inapplicable.”
acknowledge as much.
Id. at 720 n.3.
(Def. Mem. at 8 n.4.)
In fact, the Court
did not reference a specific category of cases within which
Locke comfortably fit.
Instead, the Court merely characterized
the competing claims at issue there as being compatible with the
“play in the joints” between the Religion Clauses and, in doing
so, did not seem concerned with establishing much precedential
See id. at 725 (“If any room exists between the two
Religion Clauses, it must be here.
We need not venture further
into this difficult area . . . .”).
Thus, even the Locke Court
itself intimated that Locke is sui generis.
In addition, “Locke involved neither discrimination
among religions nor intrusive determinations regarding contested
Colo. Christian Univ. v. Weaver, 534 F.3d
1245, 1256 (10th Cir. 2008).
The same cannot be said here.
First, Ch. Reg. D-180’s ban on religious worship services
“discriminates between those religions that fit the ‘ordained’
model of formal religious worship services and those religions
whose worship practices are far less structured.”
2012 WL 603993, at *7 (citation omitted).
discriminating among religions are subject to strict scrutiny.”
Corp. of Presiding Bishop of Church of Jesus Christ of Latterday Saints v. Amos, 483 U.S. 327, 339 (1987).
Board’s policy of verifying whether applicants are in fact
worshiping in the Board’s schools “entail[s] intrusive
governmental judgments regarding matters of religious belief and
practice,” Colo. Christian Univ., 534 F.3d at 1256, in violation
of the Establishment Clause, see infra Part III.B.
Finally, the counter-interests at play in this case
are altogether differently balanced from those at issue in
While the Locke Court confronted a minimal burden on the
free exercise of religion and a substantial and historic
antiestablishment interest, here the Court faces a substantial
burden on Plaintiffs’ free exercise rights11 and a misperceived
The Court finds that the free exercise burdens Plaintiffs say
they would face were Defendants permitted to enforce Ch. Reg. D180, see supra Part III.A.1, are undoubtedly substantial. But
(cont’d on next page)
Establishment Clause concern raised by Defendants.12
this additional fact that the constitutional scales tilt in the
opposite direction here than in Locke, the Court determines that
Locke is inapposite.13
See Colo. Christian Univ., 534 F.3d at
1255-56 (“The Court’s . . . holding [in Locke] that ‘minor
(cont’d from previous page)
even putting aside the qualitative nature of the burdens alleged
in this case, the Court agrees with the general proposition that
“[t]he indignity of being singled out for special burdens on the
basis of one’s religious calling [on the face of a statute] is
so profound that the concrete harm produced can never be
dismissed as insubstantial.” Locke, 540 U.S. at 731 (Scalia,
J., dissenting). Indeed, as much is implied by Lukumi’s
directive to apply strict scrutiny when presented with a law
that is not neutral.
Furthermore, whereas history was on the state defendant’s side
in Locke, it appears Plaintiffs can lay claim to it here. See
infra Part III.A.3.
At oral argument, Defendants took issue with Plaintiffs’
suggestion that only an actual Establishment Clause violation
could justify any burden on the free exercise of religion and
cited Locke as an example where the Supreme Court tolerated such
a burden even in the absence of such a violation. The Court
does not dispute Defendants’ reading of Locke yet fails to see
the relevance of Defendants’ point. Because the Court did not
apply strict scrutiny in Locke, the bar was lowered such that
the state-defendant was not required to show an actual violation
of the Establishment Clause in order to prove the
constitutionality of the challenged law. But where there is a
greater burden placed on the free exercise of religion such that
strict scrutiny does apply, as in this case, the Supreme Court’s
jurisprudence suggests only an actual violation of the
Establishment Clause amounts to a compelling interest that could
justify so considerable a burden on religion. Cf., e.g.,
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,
761–62 (1995) (noting that, in the context of free speech
analysis, “compliance with the Establishment Clause is a state
interest sufficiently compelling to justify content-based
restrictions on speech”).
burden[s]’ and ‘milder’ forms of ‘disfavor’ are tolerable in
service of ‘historic and substantial state interest[s]’ implies
that major burdens and categorical exclusions from public
benefits might not be permitted in service of lesser or less
long-established governmental ends.” (quoting Locke, 540 U.S. at
720, 725) (all but the first two alterations in original)).
Ch. Reg. D-180 Does Not Withstand Strict Scrutiny
Defendants argue that Ch. Reg. D-180 survives even a
strict scrutiny analysis.
They say the Board’s interest in
avoiding an Establishment Clause violation has already been
deemed compelling by the Court of Appeals and is further
supported by the latest evidence adduced in this case.
Defendants also say Ch. Reg. D-180 is narrowly tailored to
advance the Board’s compelling interest.
Here, too, the Court
Defendants Do Not Have a Compelling Interest
First, contrary to Defendants’ reading of Bronx Appeal
III, the Court of Appeals did not hold that Defendants’ stated
interest in “seek[ing] to steer clear of violating the
Establishment Clause” was compelling for purposes of a strict
650 F.3d at 40.
Because the Court of
Appeals was conducting a limited public forum free speech
analysis, its task was only to determine whether Ch. Reg. D180’s ban on religious worship services was reasonable in light
of the purposes served by the forum.
While the Court of Appeals
cited the undisputed proposition that “an interest in avoiding a
violation of the Establishment Clause ‘may be characterized as
compelling,’” the reasonableness inquiry at issue did not
require it to “decide whether use of the school for worship
services would in fact violate the Establishment Clause.”
(emphasis added) (quoting Widmar v. Vincent, 454 U.S. 263, 271
And the Court of Appeals did not voluntarily confront
Id. at 43 (“To reiterate, we do not say that [an
Establishment Clause] violation has occurred, or would occur but
for the policy.”).
Instead, it only went so far as to say the
Board had a “strong basis to believe that allowing the conduct
of religious worship services in schools would give rise to a
sufficient appearance of endorsement to constitute a violation
of the Establishment Clause.”
Id. at 40.
But strict scrutiny
requires more than a “strong basis;” it requires a compelling
In Bronx III, the Court determined that the inquiry
into whether Defendants’ antiestablishment interest is
compelling for purposes of a strict scrutiny analysis required
the Court to answer the question that the Court of Appeals
declined to entertain—i.e., whether use of the Board’s schools
for worship services during non-school hours violates the
2012 WL 603993, at *8.
In answering that
question in the negative, the Court readopted its findings from
2002 when it granted Plaintiffs’ earlier motion for a
Those findings included the following:
Plaintiffs’ Sunday meetings “are obviously not endorsed by the
School District;” no school employee attends Plaintiffs’
meetings; the meetings are open to all members of the public;
children are not present around the school on Sunday mornings;
and no student attends the meetings.
Bronx I, 226 F. Supp. 2d
In light of the recent evidentiary record, Defendants
say the Court’s reliance on its 2002 findings is misplaced.
While the Court acknowledges that changed circumstances warrant
reconsideration of the Court’s prior findings, the latest
evidence does not alter the Court’s conclusion that Defendants
misperceive an Establishment Clause violation.
Turning first to the number of extended use permits,
Defendants received 122,874 permit applications for the fiscal
(Barham Decl. ¶ 25.)
The parties have applied
different methodologies to discern how many of these permits
were granted for the purposes of holding religious worship
services; as a result, they have reached different conclusions
about the total number of permit applications granted for such
Defendants say the most important figure is that 81
religious organizations obtained permits to hold worship
services in the Board’s schools for at least three weeks in the
fiscal year 2011, up from the 23 that did so when the record
previously closed in 2005.
(Def. Mem. at 17.)
these organizations used different school buildings, this would
equal 6.77 percent of all the Board’s schools.
Plaintiffs, for their part, focus on the percentage of
all permits involving religious activity issued to unions and
community-based organizations, which they say fluctuates near
(Id. ¶ 40.)
At the end of the day, however, the
parties concur that the gaps in their statistics are not
“material enough to really belabor”.14
(Summ. J. Hr’g Tr. at
Based on these figures, the Court finds that even
though more religious organizations are using the Board’s
schools to hold worship services now than in 2005, the increase
Were the statistical differences material the Court would rely
on Plaintiffs’ methodology because it provides a more accurate
presentation of the data than that of Defendants. Plaintiffs
contend that for purposes of classifying the permit applications
it is more accurate to use the codes assigned by the Board than
the varying descriptions provided by the organizations
themselves. (Barham Decl. ¶ 9.) The Court agrees. While
Defendants contend that the Board’s codes do not accurately
reflect all the permits they believe are for religious services,
(Carey Decl. ¶ 20), the Board’s codes provide a more objective
and uniform system of classification. Moreover, Defendants make
a number of errors in applying their own methodology, which
affects 508 of Defendants’ entries. (Barham Decl. ¶¶ 7-13.)
For example, Defendants include a number of entries that they
claimed to exclude. (See Carey Decl. Ex. M-2.) In addition,
Defendants include in their analysis 100 permits that have not
been granted final approval. (See id.) By contrast, Plaintiffs
exclude any permits without final approval. (Barham Decl.
is statistically insignificant.
Today, close to 95 percent of
all permits issued to community-based organizations do not
involve religious activity, and the same can be said for the
percentage of the Board’s public school buildings that are not
being used for religious purposes.
Furthermore, of the 23
religious organizations that were meeting in the Board’s schools
in 2005, only seven continued to meet there in 2011.
Decl. ¶ 8.)
At least one of those seven, Lower Manhattan
Community Church, has since left the Board’s schools.
Decl. ¶ 7.)
Thus, the Court’s conclusion in Bronx II that “[b]y
any measure, the data reflecting the use by religious
congregations of schools cannot be deemed dominant”—“either in
P.S. 15, in the School District, or in the City”—remains sound.
400 F. Supp. 2d at 596.
Defendants next point to the fact that in at least
three schools, children and staff from the schools have attended
(Pl. 56.1 ¶¶ 70-71.)15
But because the Board
In connection with their cross-motion for summary judgment,
Defendants re-filed their Rule 56.1 statement from 2005, along
with Plaintiffs’ responses thereto. Plaintiffs, in turn, filed
updated responses to Defendants’ 2005 Rule 56.1 statement;
Defendants object to their having done so. Putting aside the
substantial authority that suggests Plaintiffs’ 2005 responses
were binding only for purposes of the prior motion for summary
judgment they were filed in connection with, the reality is that
some of the 2005 responses are no longer true. Defendants
cannot dispute this, as even they have responded to Plaintiffs’
new Rule 56.1 statement at times in a manner inconsistent with
(cont’d on next page)
has opened its limited public forum “for holding social, civic,
and recreational meetings and entertainment, and other uses
pertaining to the welfare of the community,” provided that “such
uses shall be non-exclusive and open to the general public,”
(Def. 56.1 ¶¶ 11-13), this merely reflects the permit holders’
efforts to comply with the Board’s open use requirement.
Church’s Sunday meetings comply with that requirement.16
parents of students choose to exercise their (and their
children’s) First Amendment rights by attending the Church’s
services, and school staff do the same, the Court fails to see
any impact this would have on the endorsement test analysis
under Lemon v. Kurtzman.
See 403 U.S. 602, 612 (1971)
(requiring that the “principal or primary effect [of the law in
question] . . . neither advance nor inhibit religion”).
Certainly there is no evidence that the school staff who attend
the meetings are proselytizing to the school’s students during
the school day.
Given the disclaimer all permit holders are
(cont’d from previous page)
their 2005 responses. In any event, Defendants cannot show that
they have been prejudiced by Plaintiffs’ updated responses
because none of the facts relied upon in this opinion are the
product of a “more favorable” updated response.
Indeed, the Court of Appeals in Bronx Appeal III believed that
any form of exclusion would only “aggravate the potential
Establishment Clause problems the Board seeks to avoid.” 650
F.3d at 43. Were Plaintiffs to exclude anyone from its Sunday
meetings, no doubt Defendants would point to that in support of
their antiestablishment interest. Defendants cannot have it
required to post on any public notice or other material, stating
that “[t]his activity is not sponsored or endorsed by the New
York City Department of Education or the City of New York,”
(Def. 56.1 ¶ 25), not to mention the long history of this
litigation, the limited attendance of students and staff cited
by Defendants would not alter the objective, fully informed
observer’s conclusion that “the Board’s actions betoken great
effort to avoid establishing any religion.”
Bronx III, 2012 WL
603993, at *9.
Finally, Defendants point out that, contrary to the
Court’s finding in 2002 that there was no evidence children are
in the school on Sunday mornings while the Church conducts its
services, “sports programs, literacy enrichment programs, test
preparation programs, and other activities for children and
families have taken place in schools at the same time as
religious organizations have held their worship services in the
(Def. Mem. at 18.)
But this evidence cuts both ways.
Defendants cannot argue domination on the one hand—i.e., that
the worship services so dominate the schools on Sunday mornings
that Defendants’ Establishment Clause concern is heightened—and
then also point to simultaneous non-worship Sunday activities
that involve students to prove the same.
The fact that a youth
basketball program holds tournaments in a school at the same
time that a church holds Sunday services there, both pursuant to
a neutral policy that promotes the general welfare of the
community, does not suggest to the informed objective observer
that the school is endorsing religion just as it does not
suggest the school is endorsing basketball.17
See Bronx III,
2012 WL 603993, at *11 (“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
Rather, the informed observer would conclude
that the Board opens its schools during non-school hours to a
To the extent Defendants point to the fact that some of the
schools where services take place are elementary schools
attended by young and impressionable students, such as P.S. 15,
to show their Establishment Clause concern is particularly
acute, the Supreme Court has already rejected this argument.
See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113-19
(2001) (“[W]hatever significance we may have assigned in the
Establishment Clause context to the suggestion that elementary
school children are more impressionable than adults, we have
never extended our Establishment Clause jurisprudence to
foreclose private religious conduct during nonschool hours
merely because it takes place on school premises where
elementary school children may be present.” (citation omitted));
cf. Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1381-82
(3d Cir. 1990) (“So long as [the school district] maintains a
limited student open forum to which outsiders may be invited, it
expresses a judgment concerning its students’ ability to
distinguish neutral access from state sponsorship of the view
expressed. [The school district] cannot, therefore, rely on the
impressionability of these same students as the basis for
content-based exclusions from its facilities in the evening
hours or as the basis for an establishment clause defense.”).
diverse group of organizations pursuant to a neutral policy
generally aimed at improving the welfare of the community.”
(internal quotation marks omitted)).
In short, none of the scant evidence that Defendants
point to proves that an Establishment Clause violation would
result but for Ch. Reg. D-180’s religious use prohibitions.
Instead, the opposite is true.
“[V]iewed in its totality by an
ordinary, reasonable observer,” Galloway v. Town of Greece, 681
F.3d 20, 2012 WL 1732787, at *8 (2d Cir. 2012), a policy that
treats neutrally all applicants—religious and secular alike—
would not “convey the view that the [Board] favored or
disfavored certain religious beliefs,” id.18
In Bronx Appeal III, the Court of Appeals found that “the fact
that school facilities are principally available for public use
on Sundays results in an unintended bias in favor of Christian
religions.” 650 F.3d at 43. This factored into the Court of
Appeals’ conclusion that the Board’s Establishment Clause
concern was reasonable. Now that the Court is tackling the
question of whether the Board’s antiestablishment interest is
compelling, on this point the Court notes the Supreme Court’s
conclusion in Marsh v. Chambers, 463 U.S. 783 (1983), that the
mere fact “a clergyman of only one denomination-Presbyterian-has
been selected for 16 years” as a state legislative chaplain does
not “in itself” violate the Establishment Clause. Id. at 79394. The Court rejected the argument that such a long tenure had
“the effect of giving preference to his religious views,” absent
proof that the chaplain’s reappointment “stemmed from an
impermissible motive.” Id. at 793. Thus, even if the Board’s
schools lend themselves to being available more frequently for
religions that hold worship services over the weekend, based on
Marsh, this fact alone does not violate the Establishment
One last consideration deserves mentioning.
considering a law challenged under the First Amendment or
assessing a defendant’s purported justification for enacting
such a law, the Supreme Court has often conducted a historical
analysis to gauge how the Framers would have viewed the law or
justification at issue.
Compare, e.g., Locke, 540 U.S. at 725
(justifying minimal burden on religion in light of statedefendant’s historic antiestablishment interest in not funding
the religious training of clergy), with Marsh, 463 U.S. at 788
(finding state-funded legislative prayer not per se invalid
under the Establishment Clause because “[c]learly the men who
wrote the First Amendment Religion Clause did not view paid
legislative chaplains and opening prayers as a violation of that
Here, history suggests that the Framers would not
have given much credence to Defendants’ purported Establishment
As amicus curiae point out:
President Washington permitted religious
groups to conduct worship services in the
U.S. Capitol building as early as 1795.
President Jefferson, whose devotion to
church-state separation cannot be
questioned, regularly attended services in
the Capitol throughout his presidency, and
allowed worship services in the Treasury and
War Office buildings as well. Even the
Supreme Court chamber was occasionally used
for worship services. Mr. Jefferson later
invited religious societies, under
“impartial regulations,” to conduct
“religious exercises” in rooms at his
beloved University of Virginia, for the
benefit of students who wished to attend.
He specifically observed that these
arrangements would “leave inviolate the
constitutional freedom of religion.”
(Becket Mem. at 10-11 (citations omitted) (quoting 19 The
Writings of Thomas Jefferson at 414-17 (Memorial ed. 1904)).)
Thus, contrary to the situation in Locke, Defendants’ stated
Establishment Clause concern is in fact contradicted by history.
Given all the above considerations, it is unsurprising
that Defendants cite no case—and the Court is aware of none—in
which a court has struck down a public school board’s policy of
permitting religious worship during non-school hours as
violative of the Establishment Clause.
authority to the contrary.
At the same, there is
See Fairfax Covenant Church v.
Fairfax Cnty. Sch. Bd., 17 F.3d 703, 706-08 (4th Cir. 1994);
Gregoire, 907 F.2d at 1379-81.
The Court agrees with those
other courts that have directly confronted the merits of
Defendants’ constitutional concern and concluded that a school
board does not violate the Establishment Clause by permitting
religious organizations to hold worship services during nonschool hours.
Accordingly, for the reasons stated above, as
well as those stated in Bronx II, 400 F. Supp. 2d at 592-98, and
Bronx III, 2012 WL 603993, at *8-10, the Court concludes that
Defendants’ purported antiestablishment interest is not
compelling and that, as a result, Ch. Reg. D-180 fails to
satisfy the first prong of Lukumi’s strict scrutiny analysis.
Ch. Reg. D-180 thus violates the Free Exercise Clause, and the
Court grants Plaintiffs’ motion for summary judgment on this
Ch. Reg. D-180 Does Not Advance Board’s
The Court concluded in Bronx III that Ch. Reg. D-180
also fails the second prong of Lukumi’s strict scrutiny analysis
in that it does not advance the Board’s stated antiestablishment
interest and is not narrowly tailored to advance that interest.
2012 WL 603993, at *10-12.
The Court briefly elaborates here on
the first part of that conclusion.
To begin, the Court previously found that “[b]ecause
[Ch. Reg. D-180] 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.”
Id. at *10.
Defendants now assert that “[t]aken together, . . . the two
provisions of Ch. Reg. D-180, § I.Q—the ‘religious worship
services’ provision and the ‘house of worship’ provision—reach
all forms of worship, whether practiced by ordained religions or
those with less formal worship practices.”
(Def. Reply Mem. at
The Court finds two fundamental flaws with Defendants’
First, the Court does not see how Defendants can
possibly prove their assertion that “the two provisions of Ch.
Reg. D-180 . . . reach all forms of worship” in light of their
refusal to define either provision.
The Court of Appeals has
undertaken to define “religious 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.”
Bronx Appeal III, 650 F.3d at 37.
In the absence of any guidance or objection from Defendants,
this Court has proceeded to analyze Plaintiffs’ pending claims
with that definition in mind.
However, because the Court of
Appeals declined to consider the reach of the “house of worship”
prong, it did not attempt to define that term.
Id. at 36 & n.6.
Because Defendants continue to refuse to define it as well, this
Court cannot competently assess the merits of their argument
that both worship-related prongs of Ch. Reg. D-180 work together
to treat all religions equally.
As such, the Court is left to
analyze the “religious worship services” prong alone.
the Court of Appeals’ definition of that term, this Court
reaffirms its conclusion in Bronx III that Ch. Reg. D-180 is
ineffective in advancing the Board’s antiestablishment interest
because the regulation discriminates among religions.19
Second, the report submitted by Plaintiffs’ expert,
Gerard R. McDermott, demonstrates the practical impossibility
that Ch. Reg. D-180 treats all religions equally.
theistic religions exist that do not “worship.”
Ex. 32, at 16-20.)
For example, Theravada Buddhists do not
worship or participate in worship services but they do hold
“meetings in which believers teach and learn and meditate and
(Id. Ex. 32, at 18.)
These religious adherents
therefore would not be excluded from the Board’s schools under
Ch. Reg. D-180, whereas followers of an “ordained” religion
would be excluded.
Thus, the dual worship-related provisions
are not comprehensive and neutral; rather, they treat certain
religions differently from others.
Furthermore, because the
Defendants’ failure to define the term “house of worship”
presents an additional problem. Under Good News Club, the Board
may not exclude from its schools organizations who wish to
conduct activities such as prayer, religious instruction,
expression of devotion to God, and the singing of hymns; to do
so would encroach impermissibly on their free speech rights.
See Bronx Appeal III, 650 F.3d at 36-37. Yet the vagueness of
Ch. Reg. D-180’s religious use ban coupled with the regulation’s
certification requirement, see infra Part III.B, threatens to
keep certain organizations out of the Board’s schools for
exactly these types of activities. Defendants admit that if a
religious organization considered, for example, the singing of
hymns to be barred under the Board’s ban on using its schools as
a “house of worship,” that organization could be precluded from
fully exercising its free speech rights. (See Summ. J. Hr’g Tr.
at 52-53.) The Court finds this risk to be all too real and
Board relies in the first instance on the religious applicants
themselves to determine whether their proposed uses are
prohibited under the regulation, Ch. Reg. D-180 would allow the
very same activities on behalf of one church that does not
consider them to be worship that it would prohibit on behalf of
another church that does view them as worship.
The end result,
as Defendants admit, is that some religious applicants “will
fall through th[e] net.”
(Summ. J. Hr’g Tr. at 48.)
additional reasons, the Court remains convinced that Ch. Reg. D180 is ineffective in advancing Defendants’ antiestablishment
In Bronx III, the Court noted that Ch. Reg. D-180’s
ineffectiveness is also evidenced by the fact that student
religious clubs conduct the constituent activities of a worship
service that would otherwise be banned under the regulation:
Given the variety of religious practices
that are permitted under [Ch. Reg. D-180]—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.”
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
2012 WL 603993, at *11 (quoting Bronx Appeal III, 650 F.3d at
New insight into how religious student clubs operate in
the Board’s schools buttresses the Court’s prior discussion on
The typical meeting of one such student-led religious
club—Seeker Christian Fellowship—occurs either right before or
after the school day.
(Del Rio Decl. ¶ 2.)20
Anywhere from a
few students to over one hundred students attend meetings.
The meetings occur weekly, usually last thirty minutes or
less, and “consist of prayer, singing, study of the Bilbe and
students discussing with each other their Christian beliefs.”
A faculty advisor is present during the meetings but does
not participate in them.
(Id. ¶ 8.)
All students are invited
to attend the meetings, which occur in “rooms where students are
walking by and can note the fact that the Christian meetings are
Defendants object to the Del Rio declaration as based purely
on inadmissible hearsay. But the declaration makes clear that
it is based upon the declarant’s personal knowledge. (Del Rio
Decl. ¶ 1.) Furthermore, Defendants themselves have filed
declarations in support of their cross-motion for summary
judgment that are littered with objectionable hearsay. The
Court therefore rejects Defendants’ objection.
(Id. ¶ 10.)
“[S]tudents from other religious
faiths conduct meetings in the New York City public schools
right before, after, or during the school day, including Muslim,
Jewish, and other religious student groups.”
(Id. ¶ 12.)
Defendants argue that the student-led religious clubs
do not raise the same Establishment Clause concerns as do
In fact, Defendants go so far as to say
“the requirements under which student groups operate insure that
there is virtually no likelihood that students, or members of
the public, will discern a message of endorsement on the part of
(Def. Reply Mem. at 13.)
Given the functionally
similar restrictions under which both types of meetings operate,
the Court rejects Defendants’ position that students and members
of the public would interpret so differently the Board’s message
of endorsement with respect to the activities of Plaintiffs’
meetings versus those of student-led religious clubs.
For example, Defendants point to the fact that student
clubs only advertise their meetings within the school whereas
Plaintiffs are free to advertise their meetings outside the
But given the size of the respective
environments, the Court fails to see the significance of this
In fact, a student-led religious club’s
advertisement on a bulletin board or over the school’s public
address announcement system, (see Herrera Decl. ¶ 12), is more
likely to be noticed by a greater percentage of people within
the school than is Plaintiff’s announcement of its meetings by
the eight million plus inhabitants of New York City or the
seemingly infinite number of users surfing the Web.
also say “[s]ome congregations have more than 100 people in
attendance at their services,” (Def. Reply Mem. at 13), but the
same can be said for certain student club meetings, (Del Rio
Decl. ¶ 9).
But perhaps most telling is the fact that student-led
religious clubs, even though they meet during non-instructional
time, hold their meetings on school days when significantly more
students are present than on Sundays (when Plaintiffs’ meetings
This suggests the likelihood that a student or
parent would misperceive that the Board was endorsing the club’s
religious activities is greater than the likelihood either would
have the same misperception regarding Plaintiffs’ Sunday
In this regard, the Court agrees with Plaintiffs’
counsel’s comment at oral argument that “high school students
may not have the benefit of reading the Second Circuit’s
decision [in Bronx Appeal III] and [may] not be able to parse
between a worship service and [the activities of a student-led
They’re going to see a lot of worship-like
activity going on by their peers, permitted by the public school
(Summ. J. Hr’g Tr. at 25.)
Of course, the
endorsement test looks to the objective, fully informed
observer’s perception as determinative of whether there is an
actual Establishment Clause violation.
But the fact that the
risk of confusion by the uninformed regarding endorsement is
greater with respect to the activities of student-led religious
clubs than it is with respect to Plaintiff’s Sunday meetings
highlights the ineffectiveness of Ch. Reg. D-180 in advancing
the Board’s stated antiestablishment interest.21
Accordingly, the Court rejects Defendants’ argument
that Ch. Reg. D-180 is effective in advancing their
Because the Court finds to the
Putting the activities of student-led religious clubs aside,
Ch. Reg. D-180—which relies on the subjective labels applicants
use to describe their religious practices—is ineffective in
countering the perception of establishment because observers
still see outside groups conducting the constituent parts of a
worship service in the Board’s schools. See Bronx III, 2012 WL
603993, at *11.
Defendants argued for the first time at oral argument that the
effectiveness of Ch. Reg. D-180’s ban on “religious worship
services” and otherwise using the Board’s schools as a “house of
worship” is evidenced by the fact that, prior to this Court’s
issuing its preliminary injunction, some organizations that had
previously been meeting in the schools either vacated them or
were planning to leave upon learning that the Board would begin
enforcing the regulation in February 2012. While Defendants did
not elaborate on this argument, the gist appears to be that
because religious organizations were leaving the schools
entirely and not remaining to conduct the individual elements of
worship permitted under Good News Club, the schools were
trending towards being entirely “religious free,” thus
demonstrating the effectiveness of Board’s policy. Because
Defendants did not raise this argument until the eleventh hour
(cont’d on next page)
contrary—i.e., that the regulation does not advance the Board’s
interest—Ch. Reg. D-180 also fails the second prong of Lukumi’s
strict scrutiny analysis.
Ch. Reg. D-180 thus violates the Free
Exercise Clause for this additional reason.
Ch. Reg. D-180 Also Violates the Establishment Clause
The Court additionally based its February 2012
preliminary injunction on post-Bronx Appeal III factual and
legal developments, which the Court found warranted
reconsideration of Plaintiffs’ Establishment Clause claim.
Bronx III, 2012 WL 603993, at *12-16.
Specifically, the Court
found that Ch. Reg. D-180 violates the Establishment Clause
under Lemon because it causes the Board’s officials to become
excessively entangled with religion by requiring them to make
their own bureaucratic determinations as to what constitutes
The Court also found that the Supreme Court’s recent
decision in Hosanna-Tabor confirms that the Establishment Clause
“prohibits government involvement in such ecclesiastical
132 S. Ct. at 706.
At oral argument on Plaintiffs’
(cont’d from previous page)
and failed to submit a declaration detailing the number of
religious organizations that previously obtained permits to
conduct the types of activities expressly permitted under Good
News Club but which decided to leave the schools after being
informed that worship services would no longer be allowed, the
Court cannot address the merits of Defendants’ argument.
Furthermore, the Cole declaration contradicts Defendants’
assertion. See infra Part III.B. Therefore, Defendants’
unsupported argument does not factor into the Court’s analysis.
motion for a preliminary injunction, Defendants provided a rough
sketch of the verification procedure for determining applicants’
compliance with Ch. Reg. D-180’s worship-related provisions;
Defendants were unsuccessful in convincing the Court of the
constitutionality of that procedure.
Defendants have now sought
to explain in greater detail their current verification method
and why it does not cause excessive government entanglement with
religion, but the Court remains unconvinced.
In Bronx III, the Court cited the testimony of a
permit applicant who sought the Board’s guidance whether his
church’s proposed activities would be permitted under Ch. Reg.
The applicant provided the Board with descriptions of
his church’s meetings, and the Board ultimately determined that
the meetings constituted impermissible “religious worship
services” under the regulation.
The Court concluded the
The declarations recently filed in this
case . . . demonstrate that the Board does
not engage in a mere act of inspection of
religious conduct when enforcing [Ch. Reg.
D-180]. 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.
Bronx III, 2012 WL 603993, at *16 (internal quotation marks
The Board’s excessive entanglement with religion is
further evidenced by the declaration of Marilynn N. Cole
(“Cole”), submitted in support of Plaintiffs’ motion for summary
Cole serves as an elder for Unbroken Chain Church, a
Christian church that currently meets on Sunday mornings for its
“main worship service” in one of the Board’s schools.
Decl. ¶ 3.)
When Cole learned of the Board’s intention to begin
enforcing Ch. Reg. D-180’s ban on religious worship services
after February 12, 2012, she called a Board official to see
whether her church’s weekly Wednesday night prayer meeting and
weekly Friday night Bible study would also be prohibited.
The Board official told Cole to “write him an email
describing what [the church does] at those meetings.”
Cole explained in a subsequent email that “Wednesday
night is Prayer . . . and congregation members come to the front
to share their requests.
And then they pray.
Our Bible Study
is teaching from our Pastor or from one of our elders or
(Id. (alteration in original).)
The Board official
eventually answered Cole’s inquiry by stating that “Bible study
would be ok, but not prayer meetings.”
(Id. ¶ 10.)
unopposed declaration reaffirms the Court’s conclusion that “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.”
Bronx III, 2012 WL 603993, at
Defendants, for their part, admit that some Board
officials made mistakes in following the Board’s protocol for
verifying compliance with Ch. Reg. D-180.
Decl. ¶ 32.)
(See, e.g., Brawer
But Defendants insist the Board’s method of
implementing Ch. Reg. D-180 is constitutionally sound because it
first looks to the religious applicants themselves to certify
whether they intend to use the schools for “religious worship
services” or as a “house of worship.”
Defendants summarize the
Board’s verification procedure as follows:
Staff will rely, in the first instance, upon
the representations of religious
organization applicants regarding their
compliance with the worship-related
provisions of [Ch. Reg. D-180], but reserve
the right to look to other sources of
publicly available information to verify
applicants’ representations made on permit
forms, just as staff do with non-religious
(Def. Reply Mem. at 8; see also Brawer Decl. ¶¶ 20-21, 47.)
While this approach of “look[ing] beyond the four corners of the
Extended Use Application,” (Brawer Decl. ¶ 20), may be proper
for purposes of verifying a political or commercial applicant’s
compliance with Ch. Reg. D-180, the same cannot be said of
verifying whether a religious applicant is complying with the
worship-related provisions of the regulation.
This is because
it is the religious adherents alone who can determine for
themselves how to “shape [their] own faith,” Hosanna-Tabor, 132
S. Ct. at 706, and no amount of bureaucratic second-guessing—
even if based solely on the adherents’ own words—may invade
The following colloquy at oral argument highlights the
problem of excessive entanglement that results from Defendants’
COURT: If there is no definition in [Ch.
Reg. D-180] of [religious] worship service
or . . . house of worship, how can the
regulation be enforced and how will folks
know whether they are in or out?
DEFENDANTS: Well, your Honor, the plaintiffs
themselves in their 56.1 statement make that
argument for us, because they say it is only
the religious worshiper who knows what
worship is. . . . The definition [of
“religious worship services” or “house of
worship”] is what the religious organization
believes it to be.
(Summ. J. Hr’g Tr. at 44-45, 60 (emphasis added).)
If it is
true that only a religious organization can define for itself
what it means to conduct “religious worship services” or to use
a building as a “house of worship,” it is equally true that an
The fact that Defendants may investigate a political or
commercial applicant’s public statements to confirm compliance
with Ch. Reg. D-180 is irrelevant. Whereas specific First
Amendment prohibitions on state action are implicated when a
religious adherent applies for an extended use permit under Ch.
Reg. D-180, no such constitutional limitations are triggered
when Board officials review a politician’s or a merchant’s
outsider has no insight into whether that organization is acting
consistently with its own religious beliefs.
attempts to do so in this case only serve to illustrate the
constitutional impropriety of such a task.
For example, Defendants point to a religious
applicant’s use of the word “worship” in public documents and
statements as a red flag that the applicant may have deceitfully
certified compliance with Ch. Reg. D-180.
(See, e.g., Def. Mem.
at 27 (“[N]otwithstanding plaintiffs’ varying approaches to Ch.
Reg. D-180 and purported difficulty with the regulation’s use of
the word ‘worship,’ their use of the word when facing the larger
community is remarkably clear and straightforward.
testified that the Church has consistently distributed flyers to
the public over ten years, inviting the community ‘to worship
with them Sunday at 11:00 AM’ at P.S.15.”).)
Defendants seem to
be conflating “worship” with “religious worship services,” 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.’), but in
any event they are excessively entangling themselves in
Because Defendants do not define either
term, a religious organization may, according to its religious
beliefs, honestly certify on a permit application that it will
not use the Board’s schools for “religious worship services” or
as a “house of worship” yet nevertheless conduct some other form
of “worship” not proscribed by Ch. Reg. D-180.
As Brad Hertzog,
Pastor of Reformation Presbyterian Church, points out:
From my theological perspective, the Bible
gives us a taxonomy of worship that includes
different angles on this word. For example,
there is a sense (from the Bible) that
everything the Christian does is worship—
including eating and drinking . . . . There
is another aspect of worship which includes
certain things that are more particularly
set apart for God. For example, prayer can
rightly be called worship, because it is an
act of worship.
(Hertzog Decl. ¶ 11.)
Assuming Pastor Hertzog applied for an extended use
permit for his congregation to hold Bible study meetings,
certified that he was in compliance with Ch. Reg. D-180, and
then distributed a leaflet that said, “Come worship the Bible
with us Sunday mornings in P.S. 173,” Defendants say they would
be justified in revoking his permit for certifying his
(See Summ. J. Hr’g Tr. at 40 (“Well, you
look at [the applicant’s] leaflet.
It says come worship with
You don’t have to go much
It sounds like worship to me.
further than that.”).)
But that would only mean the Board is
substituting its own understanding of the congregation’s faith
for that of the congregation itself—even if the Board’s
officials only look to the congregants’ own words—in clear
violation of both the Establishment Clause (excessive
entanglement) and the Free Exercise Clause (government
interference with an internal church decision).24
Board’s inquiry into the applicant’s religious views alone
suffices to violate Plaintiffs’ First Amendment rights.
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979)
(“It is not only the conclusions that may be reached by the
Board which may impinge on rights guaranteed by the Religion
Clauses, but also the very process of inquiry leading to
findings and conclusions.”); Bronx Appeal I, 127 F.3d at 221-22
(Cabranes, J., 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 instruction or worship, and the very act of making
such classifications may deeply-and unconstitutionally-entangle
public officials in essentially theological determinations.”);
Colo. Christian Univ., 534 F.3d at 1261 (“Properly understood,
the [excessive entanglement] doctrine protects religious
Quaker “meeting for worship,” in which attendees sit in
communal silence and speak only when (and if) the “Holy Spirit”
so moves them, presents a similar problem. A Quaker
organization that applies for an extended use permit may certify
compliance with Ch. Reg. D-180 because it does not consider its
meetings to qualify under either of the regulation’s worshiprelated provisions. Nevertheless, were the Board’s officials to
visit the organization’s website and see the advertisement,
“Come join our meeting for worship at P.S. 90 on Saturdays,”
Defendants say they would be justified in deeming the
organization to have falsely certified its permit application.
The Religion Clauses say otherwise.
institutions from governmental monitoring or second-guessing of
their religious beliefs and practices . . . .”).
The Court further finds the excessive government
entanglement with religion that Ch. Reg. D-180 fosters to be
congruent with that found by the court in Faith Center Church
Evangelistic Ministries v. Glover, 2009 WL 1765974 (N.D. Cal.
June 19, 2009).
In that case, the plaintiff was a non-profit
religious organization that challenged a county library policy
that generally opened the library’s meeting room “for
educational, cultural, and community related meetings, programs,
and activities” but prohibited the use of the room for
Id. at *1.
The plaintiff had initially
won a preliminary injunction against enforcement of the policy
on free speech grounds.
After the Court of Appeals for the
Ninth Circuit reversed that ruling in part, see 480 F.3d 891,
918 (9th Cir. 2007) (“[P]rohibiting Faith Center’s religious
worship services from the [library] meeting room is a
permissible exclusion of a category of speech that is meant to
preserve the purpose behind the limited public forum.
worship services can be distinguished from other forms of
religious speech by the adherents themselves.”), the plaintiff
submitted a new application to use the library meeting room for
“Prayer, Praise Wordshop [sic] Purpose to Teach Scripture and
Encourage Salvation thru Jesus to Build-Up this Community
2009 WL 1765974, at *3.
A county official approved
the application but clarified that the plaintiff could use the
library’s meeting room “for any activity that does not violate
the meeting room use policy including activities that express a
In accordance with the Ninth Circuit’s
holding, you are responsible for distinguishing religious
worship services from other forms of religious speech.”
In response, the plaintiff’s “leader” argued:
“[I]t is impossible for [her] to distinguish
between worship and any other aspect of
Faith Center’s meetings,” because she
understands “worship to be an outward
expression of a relationship with God,” and
“any time [she is] doing something that is
in accordance with what God would like [her]
to do, that is an act of worship.”
Id. at *4 (all but the first alteration in original).
The parties cross-moved for summary judgment, and the
court first concluded that the religious use restriction did not
violate the Free Speech Clause.
See id. at *4-7.
found that the religious use restriction did violate the
Establishment Clause based on the policy’s fostering of
excessive government entanglement.25
The court noted:
The Court notes that the procedural posture of Faith Center
Church is also on par with this litigation’s procedural history.
That the Court of Appeals in that case reversed the district
court’s ruling on the plaintiff’s Free Speech Clause claim did
not prevent the district court from finding in the plaintiff’s
favor on its Establishment Clause claim. The same can be said
(cont’d on next page)
[T]he County has not defined what it means
by “religious services.” The County
contends that the Library relies only on the
applications to determine whether an event
would fall within the scope of the Religious
Use restriction. However, the record
demonstrates that if there are questions
about whether activities are religious
services, rather than other religious
activities permitted in the Meeting Room,
someone from the County reviews the
application to make that determination.
Indeed [there is] the likelihood that
the County would be called upon to inquire
into religious doctrine in order to
determine whether a particular activity
qualified as a religious service.
Id. at *9 (citations omitted).
The same is true here.
First, the Board has refused to define the terms
“religious worship services” and “house of worship.”
the declarations filed in this case demonstrate that Board
officials have reviewed permit applications to make the
determination whether the applicant’s proposed activities
constitute these types of prohibited religious use.
though Board officials look to the applicants in the first
instance to decide whether their proposed activities fall within
the proscribed worship-related provisions, the Board’s
verification method requires state officials to “inquire into
religious doctrine”—as discussed above, because only the
(cont’d from previous page)
here: the Court of Appeals’ rejection of Plaintiffs’ Free Speech
Clause claim does not preclude this Court from granting
Plaintiffs’ requested relief on its Establishment Clause and
Free Exercise Clause claims.
religious adherents themselves may shape their own faith, an
outsider’s interpretation of the adherents’ own statements
regarding their religious practices “does not lie within the
[government’s regulatory] competence to administer.”
Vincent, 454 U.S. 263, 269 n.6 (1981).
Accordingly, for all these reasons, the Court
concludes that Ch. Reg. D-180 “call[s] for official and
continuing surveillance leading to an impermissible degree of
[government] entanglement” with religion, in violation of the
Walz, 397 U.S. at 675.
not immune from excessive entanglement once they begin to verify
the qualitative nature of specific religious practices.26
Court thus grants Plaintiffs’ motion for summary judgment on
this additional ground.
Defendants even seemed to recognize as much at oral argument.
(See Summ. J. Hr’g Tr. at 39 (“I think we sketched out—I mean,
look, the plaintiffs have cited some e-mails or other
communication[s] that said, you know, tell me in detail
everything you’re doing. I’m not going to say that was what we
intended that they do. Rolling out a policy of this difficulty
to 1500 schools, you may find somebody asking questions that
might not be the way you would want to frame them.” (emphasis
For the foregoing reasons, Plaintiffs' motion for
summary judgment [Dkt. No. 148] is GRANTED, and Defendants'
cross-motion for summary judgment [Dkt. No. 158] is DENIED.
Defendants are permanently enjoined from enforcing Ch. Reg. D
180 so as to deny Plaintiffs' application or the application of
situated individual or entity to rent space in the
Board's public schools for meetings that include religious
New York, New York
June 29, 2012
UNITED STATES DISTRICT JUDGE
27 The Court incorporates by reference
reasons why the
preliminary injunction extended to any s
See Bronx III, 2012 WL 603993, at *20 n.17. The
same reasons apply
purposes of this permanent injunction.
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