The Bronx Household of Faith v. Board of Educ. of the City of New York, No. 12-2730 (2d Cir. Apr. 3, 2014)
Abstract: A U.S. Court of Appeals for the Second Circuit (NY, VT, CT) three-judge panel, in a 2-1 split, has ruled that a school board’s rule prohibiting outside groups from holding religious worship services in school facilities outside school hours does not violate the First Amendment’s Free Exercise Clause. The panel’s majority also rejected the claim that such a prohibition violates the First Amendment’s Establishment Clause. It declined to apply strict scrutiny analysis to the board’s regulation because the prohibition did not constitute viewpoint discrimination.
Facts/Issues: The case concerns the constitutionally of New York City Board of Education (NYCBOE) Regulation I.Q. (Reg. I.Q.). Reg. I.Q. is a use of facilities regulation that provides: “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”
This decision is the fifth time the Second Circuit has reviewed the regulation, from its first opinion in Bronx 13 Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997) to Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (Bronx Household IV). Following Bronx Household IV, the case was remanded to the federal district court, where the district court granted summary judgment in favor of the Bronx Household of Faith (BHF) and issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school.
The district court determined that Reg.I.Q. violated the Free Exercise Clause and the Establishment Clause. The court concluded that the regulation was not neutral on its face, and that it discriminated between religions fitting a formal religious worship service model and those religions whose worship practices are less structured.
This appeal followed.
Ruling/Rationale: The panel’s majority held that Regulation I.Q. is constitutional and vacated the lower court’s permanent injunction.
The majority found no violation of the Free Exercise Clause. It said that the Free Exercise Clause does not require NYCBOE to provide BHF with a subsidized place to hold worship services. While the Free Exercise Clause guarantees the right of individuals to worship without government interference, it “has never been understood to require government to finance a subject’s exercise of religion.” It added that “to the extent any such suggestion has been raised in litigation, it has been rejected.” The majority noted that case law is replete with examples of federal courts holding that a legislature’s decision not to subsidized a fundamental right does not amount to infringement of that right. It concluded that while government may not place obstacles in the way of the free exercise of religion, it has no corresponding duty to remove those it has not created.
The majority also found the district court’s reliance on Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), as authority for subjecting Reg. I.Q. to a strict scrutiny analysis was misplaced. It summarized Lukumi:
In Lukumi, worshipers in the Santeria religion, in which animal sacrifice plays an important part of worship services, were planning to build a house of worship in the city of Hialeah, Florida. Members of Hialeah’s city council disapproved of Santeria’s practice of animal sacrifice and, with a goal of banning the practice, the council passed a set of ordinances prohibiting the unnecessary killing of animals in a ritual or ceremony not primarily for the purpose of food consumption. Hialeah claimed that the prohibition was motivated by secular objectives including public health and prevention of cruelty to animals. Although the set of ordinances was designed to appear to apply even-handedly to religious and secular conduct alike, a plethora of exceptions and exclusions (exempting, for example, fishing and Kosher slaughter) made the prohibition apply almost exclusively to the Santeria ritual of animal sacrifice. (In addition, the legislative history revealed that disapproval of animal sacrifice as a Santeria religious ritual had in fact motivated the legislators. Because the prohibition was found to be motivated by disapproval of a religious practice and represented an attempt suppress it, and because, notwithstanding its disguise, it in fact applied almost exclusively to the Santeria ritual of animal sacrifice, the Supreme Court found that the ordinances were subject to strict scrutiny, and that they violated the plaintiffs’ free exercise rights.
The majority pointed out that while the ordinance in Lukumi was motivated by disapproval of a particular religious practice, NYCBOE harbored no such motivation when it adopted Reg. I.Q. It stated that NYCBOE’s sole reason for excluding religious worship services from its facilities was the “concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion.” The panel rejected the district court’s conclusion that because there is “no secular analog” to the conducting of religious worship services, NYCBOE’s decision not to subsidize BHF’s services “is necessarily a suspect discrimination against religion to be assessed under strict scrutiny.” According to the majority, the lower court’s conclusion misapplied the Supreme Court’s reasoning in Lukumi.It pointed out that while “the ordinances in Lukumi were intended to, and did, suppress a religious ritual of a particular faith,…Reg. I.Q. does no such thing.” It stressed that the regulation represented “only a decision by the Board not to subsidize religious worship services by providing rent-free school facilities in which to conduct them.” There is no basis for subjecting the regulation to strict scrutiny.
In further support of its conclusion, the majority cited the U.S. Supreme’s decision in Locke v Davey, 540 U.S. 712 (2004), where the Court said: “where motivated by Establishment Clause concerns, a governmental decision to exclude specified religious causes from eligibility to receive state educational subsidies is neither a violation of free exercise, nor even subject to strict scrutiny under Lukumi.” The majority saw a clear connection to Locke: “Washington [State’s] exclusion of students of theology from eligibility for the state’s [college scholarship] subsidies was not subject to strict scrutiny under Lukumi because the exclusion was enacted in the interest of establishment concerns, we can see no reason why the rule should be any different in this case.”
The panel also disagreed with the district court’s view that Reg, I.Q. is constitutionally infirm because it discriminates against religions that hold worship services while subsidizing those that do not. The majority pointed out that all religions are eligible for the subsidy provided that they do not conduct religious services in school facilities. While acknowledging that the regulation has a disparate impact on a religious sect like BHF that does conduct religious services, the majority found that “disparate impact does not, in itself, constitute viewpoint discrimination.” “[I]t is a basic tenet of First Amendment law that disparate impact does not, in itself, constitute viewpoint discrimination.” Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 130 S.Ct. 2971, 2996 (2010). The majority concluded: “The Board is not compelled to permit a practice it has a justifiable reason for excluding just because the exclusion may affect one religion that practices the excluded conduct while not affecting other religions that do not.”
The majority discussed the district court’s ruling that the Establishment Clause would only furnish a justification for NYCBOE’s ban on religious worship services if allowing such services in school facilities would in fact violate the Establishment Clause. The majority found the district court’s rule unworkable because it would compel the school board to risk violating one religious clause or the other if it guessed wrong in regard to the Establishment Clause’s exact contours. It stressed that, based on current Supreme Court and Second Circuit precedent, NYCBOE could not with any confidence predict whether it would be found to have violated the Establishment Clause if it allowed BHF and other sects to conduct subsidized worship services. Instead, the majority determined that the Supreme Court’s reasoning in Locke dictated the opposite result. It found that just as the state of Washington was free in the service of Establishment Clause concerns to exclude theology students from state scholarships, NYCBOE was similarly justified in declining to subsidize religious worship services.
The majority also determined that the Second Circuit had consistently rejected the district court’s rule. It pointed out, as it had explained in Bronx Household IV, that NYCBOE had “substantial reasons for concern that hosting and subsidizing the conduct of religious worship services would create a substantial risk of liability under the Establishment Clause.” Given that Christian religious sects dominate school facility use on Sunday, the one day school buildings are freely available to the public, it supports a reasonable concern on the part of NYCBOE that the public will come to view it as endorsing religion.
As it had in Bronx Household IV, the majority declined to reach the question whether NYCBOE would violate the Establishment Clause by allowing the subsidized use of the school facilities for religious worship services.
The majority, therefore, concluded:
In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny.
Finally, the majority rejected the district court’s ruling that Reg. I.Q. violated the Establishment Clause because “[i]t compels the Board to become excessively entangled with religion by deciding what are religious worship services.” It pointed out that BHF was making the same argument that it had in Bronx Household IV. The majority rejected it again because whatever merit the argument had under other circumstances, it had no application in the present case because of BHF’s admission on the application that it intended to hold Christian religious worship services. As a result, NYCBE had to do no more than to read the application; no scrutiny or detailed investigation was necessary. The NYCBOE policy does not require the school district to make an independent determination of whether the applicant’s conduct constitutes a religious worship service. It found, instead, that NYCBOE’s “policy is to rely on the applicant’s own characterization as to whether the applicant will conduct religious worship services.”
According to the dissent, NYCBOE’s policy, which prohibits after hours “religious worship services in public schools—limited public fora that are otherwise open to all— violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.” It rejected the majority’s characterization of Reg. I.Q. as a content-based exclusion as opposed to a viewpoint exclusion. The dissent argued that the regulation is viewpoint discrimination “because it disallows expression solely because the expression is from a religious viewpoint.” It concluded that the “majority’s attempt to differentiate between the conduct of an event, here labeled ‘services,’ and the protected viewpoints expressed during the event is futile because the conduct of ‘services’ is the protected expressive activity.”
Viewing Reg. I.Q. as viewpoint discrimination, the dissent subjected the regulation to strict scrutiny. Applying that standard, it concluded that NYCBOE’s interest in avoiding a potential Establishment Clause violation was not a compelling governmental interest that would satisfy strict scrutiny.
The dissent contended that NYCBOE’s belief that allowing religious worship services in school facilities would violate the Establishment Clause was not reasonable because U.S. Supreme Court “precedent has foreclosed the possibility that an Establishment Clause violation would result if religious worship services were allowed in school facilities in these these circumstances.”
The Bronx Household of Faith v. Board of Educ. of the City of New York, No. 12-2730 (2d Cir. Apr. 3, 2014)
[Editor’s Note: In June 2012, Legal Clips summarized the district court’s decision in BHF v. NYCBOE, which issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school. The district court rejected NYCBOE’s argument that its Facilities Use policy did not burden the First Amendment free exercise rights of outside religious groups seeking to use public schools. Instead, it found that the policy failed the compelling interest prong of the strict scrutiny test under the Supreme Court’s Free Exercise Clause analysis. The court also found that the policy failed the second prong of the strict scrutiny test because the policy was not narrowly tailored to advance NYCBOE’s interest in avoiding an Establishment Clause violation. In addition, it concluded that the policy violated the Establishment Clause under the Lemon test’s entanglement prong. It stated: “Defendants are not immune from excessive entanglement once they begin to verify the qualitative nature of specific religious practices.”]