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Bronx Household Case Back Before 2nd Circuit E-mail
Written by Don Byrd   
Wednesday, 21 November 2012

Can New York City bar churches from using school buildings for their meeting place when school is not in session? That's the subject of an ongoing dispute between the City and the Bronx Household of Faith. It's also something of a dispute between Federal District Court Judge Loretta Preska and the 2nd Circuit Court of Appeals.

Many observers including the Baptist Joint Committee have argued that equal access principles invalidates this rule, that the church should be able to meet in the school, despite concerns that school children may view the use as an endorsement or partnership between the school and the church, in violation of the separation of church and state. The 2nd Circuit, however, sided with the City's Establishment Clause concerns and rejected the church's free speech argument.

Judge Preska wasn't done, however, and reinstated an injunction against the city on the church's free exercise of religion claims. The 2nd Circuit Monday heard arguments in the appeal of that decision.

Jane Gordon, a lawyer for the city, countered that Preska's freeze had left the Board of Education in the position of potentially violating the Constitution's establishment clause, which separates church and state.

The church maintains that the rule specifically targets religion and must be justified by a compelling state interest.

The mere fear that allowing worship in a school might be perceived as endorsing religious activity is not enough, Lorence said at the hearing.
"The district court has put the department back between a rock and a hard place," she said.

The city had set up procedures to ensure it would not become involved in defining whether a group's activity constitutes worship, she said. At the same time, the city would take action if it became aware that a group was deliberately flouting the rule -- for example, by advertising worship services at a school on its website.

The city's concerns are legitimate. But there should be a way to address them without taking the drastic step of a blanket ban on the use of the building for worship. An understanding that the church will not leave materials in the school during instructional hours, and will not exploit their weekend use to otherwise proselytize school children or their families should alleviate the Establishment Clause concerns without violating Bronx Household's free exercise rights of equal access.

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