Sixty-eight New York City churches that were evicted from public schools February 12 only missed one Sunday of worship in those schools before U.S. Chief District Judge Loretta A. Preska issued an injunction against the city’s Board of Education, saying that “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.”
“A law is not neutral if its object is to infringe upon or restrict practices because of their religious motivation,” Preska wrote in the ruling that was issued Friday afternoon. “The policy also is not neutral 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.”
For example, she said under the current policy, a Catholic or Episcopal service could not meet for worship in a New York City public school, but a Quaker meeting or Buddhist meditation service that did not follow a prescribed order and/or was not led by an ordained clergy member could.
She cited new facts that document “excessive government entanglement with religion” and referred to the United States Supreme Court’s recent decision in Hosanna-Tabor Lutheran Evangelical Lutheran Church and School vs. Equal Opportunity Employment Commission, saying the court had “emphasized the wide berth religious institutions are to be given with respect to their core activities, including worship.” She also found that the BOE’s ban on religious worship services is “ineffective” in achieving its stated goal of avoiding a violation of the Establishment Clause.
“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,” Preska wrote.
The BOE did not show why less restrictive measures, like installing signs outside the schools “disclaiming endorsement,” would be ineffective in achieving its goal, she said.
Email communications presented for the first time between the BOE and the Rev. Brad Hertzog, pastor of Reformation Presbyterian Church, about his church’s latest application to meet at P.S. 173 in Queens demonstrated that the BOE did not take descriptions of the church’s proposed activities at face value, she said.
A BOE representative had pressed Hertzog to describe church activities like reading and studying the Bible, prayer, singing, and fellowship as worship. Hertzog said he could not do so because he did not know how the BOE defined worship.
“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 may make,” Preska wrote.
She said all organizations are required to certify that their activities are in accordance with BOE policy and thus certification should be “no different for the Boy Scouts than for a synagogue seeking to hold Torah study classes.”
“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. These revelations certainly suggest that religious organizations are targeted throughout the application process,” Preska wrote.
The BOE “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,” she concluded.
Her ruling does not give houses of worship permanent access to New York City public schools, but allows them to keep meeting while the Bronx Household of Faith continues to pursue its case in the courts.
The church sought the injunction on Feb. 3, arguing from First Amendment violations it said had not previously been ruled on in the case. While 67 churches made other arrangements for Sunday services last week, the Bronx Household of Faith was issued a last minute 10-day reprieve that preceded this ruling.
New York City Council Member and pastor Fernando Cabrera said in a press release that he is “hopeful about the preliminary injunction,” and “believes it should push the New York State legislature to act.”
A bill that would effectively overturn the BOE’s worship ban passed the state senate earlier this month, but the state assembly version of the bill has not yet been brought to the floor for a vote.
“The New York State Assembly should wait no longer,” said Rev. Cabrera. “Speaker Sheldon Silver expressed concerns about the bill and now it is sufficiently evident that there are indisputable grounds to repeal this policy. The bill has 74 formal co-sponsors in the assembly, and others who support it. If it were brought to the floor today, it would pass.”
City attorney Jane Gordon told The Associated Press that the BOE will pursue another appeal. Gordon described Friday’s injunction as “inconsistent with the recent Second Circuit order and that court’s prior decision on the case’s merits.” The BOE will “consider pending applications from churches for school space this weekend,” AP reported.