Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, July 2, 2012

District Court Issues Permanent Injunction in Bronx Household of Faith Case

The latest decision in this long legal battle (which began back in 1995) was written last Friday by United States District Judge Loretta Preska, who issued a permanent injunction against the City of New York from implementing its policy of excluding Bronx Household of Faith and other organizations engaged in “worship services” from using public school facilities on equal terms with other groups.  For some previous discussion of the case, see this, this, and this.

The court readopted its legal findings from the preliminary injunction, but addressed the City’s new claims as well.  It held that the policy violated the Free Exercise Clause because it (a) was not neutral, therefore lifting it out of the framework of Employment Division v. Smith; and (b) does not satisfy strict scrutiny. 

In specific, the court said that the City policy “substantially burdens” the church’s capacity to congregate together, because of the exorbitant price of renting property in the City.  No other location than a public school would be able to accommodate the full congregation, and the church’s planned building is still under construction; other locations would compel the church to reduce its membership.

The court also rejected an argument that I’ve discussed before – the City’s claim that it has an interest in avoiding Establishment Clause violations, or in vindicating “concerns” about the Establishment Clause.  The bottom line is that the court holds that whle “a concern over an actual violation of the Establishment Clause could certainly justify a burden on the free exercise of religion under Lukumi,” a concern about the appearance of violating the Establishment Clause cannot do so.  Slip op. at 22 (and take a look at the, to my mind, persuasive footnote to Justice Scalia’s dissent in Locke v. Davey).  This was a “misperceived Establishment Clause concern” on the part of the City, not a real one.  Slip op, at 26.  Also noteworthy is the court’s emphasis on the sui generis nature of Locke, which arguably was the Supreme Court’s own view.  Slip op., at 25.

The court also held that the City’s interest in the policy was not compelling — avoiding the appearance, as opposed to the reality, of an Establishment Clause violation is not a “compelling interest.”  There was no issue of endorsement because close to 95% of all permits issued by the City go to non-religious organizations.  “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[.]

Finally, the court holds that the policy violates the Establishment Clause as well.  You ought to check out the affidavit of Marilynne Cole setting forth an exchange with a school board official discussed by the court at pp. 49-50.  That seems to me fairly strong evidence of excessive entanglement, as the government decides precisely which forms of religious expression and activity will be permitted and which forms excluded (“Bible study would be ok,” the official says, ” but not prayer meetings”).

Next stop: the Second Circuit.


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Professor DeGirolami, I am wondering why, as the government decides they can decide which forms of religious expression and activity will be permitted and which forms will be excluded, they do not feel the need to offer a compelling reason as to why a particular religious expression or activity precludes someone from being a good citizen, to begin with?

Posted by: N.D. | Jul 2, 2012 10:08:50 AM

ND, if you read the decision, you will see that the City tried to advance a compelling interest in its policy. That argument was not accepted by the district court.

Posted by: Marc DeGirolami | Jul 2, 2012 10:18:53 AM

I don't know if anyone tracks all of the cases like this and issues a "religious freedom index," but it seems that while some are maintaining that religious freedom is gravely threatened, the actual court decisions (as reported here, anyway) seem mainly to uphold the status quo or even broaden religious freedom. Of course, I suppose with issues like the contraceptive mandate, one can claim that religious freedom is *threatened*, even while various other court decisions come down on the side of religious freedom. Religious freedom can be maintained or even expanded while still being threatened.

The question in my mind is, given the trend in court decisions on religious freedom issues, is it overly optimistic to rely on the courts to keep doing what they have been doing (or what it seems to me they have been doing).

I can see why proponents of religious freedom may have been upset with Scalia and Employment Division v. Smith, but that decision was over 20 years ago by a very conservative (and Catholic) justice, and you can't blame that on Obama allegedly trying to shrink freedom of religion down to freedom of worship.

Posted by: David Nickol | Jul 2, 2012 2:11:34 PM


But you can still blame Obama for the policies that the Obama administration issues (e.g. HHS mandate). You can't blamne Scalia for the administration's policies.

Posted by: Catholic Law Student | Jul 2, 2012 2:24:51 PM

Hi, David. It might be that the last few posts of this nature that I've done talk about cases in which the religious interest prevailed. But I would be surprised if this were indicative of any trend or overall direction in the courts. For one thing, I am surely missing lots and lots of cases and for another, I just post on the cases that interest me, leaving lots out. There was a case that Rick reported on recently out of D. Mass. in which the religious interest lost (involving a government contract), and there have been many others.

The best place to check on these sorts of things is the excellent Religion Clause blog run by Professor Howard Friedman. He is pretty complete in his reporting. It might also be that if you compare notes as between what, e.g., the Becket Fund is posting and FFRF has up, you will get something of a sense of the direction that at least some courts are trending (if there is one).


Posted by: Marc DeGirolami | Jul 2, 2012 2:50:55 PM


Thanks for the information. The Religion Clause Blog looks very interesting.

Posted by: David Nickol | Jul 2, 2012 3:23:44 PM

Persuasive or not, it is still a footnote in a dissent rejecting a 7-2 majority opinion written by CJ Rehnquist.

Many states have a stricter line than the EC line set forth per precedent in the 1A so I don't think Locke v. Davey's "play in the joints" approach is unique to a specific situation. It sets forth a broad them that can apply here.

Taking over secular public schools "to hold Sunday religious worship services in a New York City public school" might be protected or might not be, but it seems to be a step beyond religious clubs, after school religious presentations and so forth. It is in effect a church taking over a secular institution, one set up particularly to be secular, and having a certain religious faith have a religious worship ceremony there since you know the rent is cheap and all.

The endorsement concerns of this move, which to my knowledge was not readily taken as a constitutional requirement back when I went to public school pre-1995 in NYC, is far from trivial.

Posted by: Joe | Jul 5, 2012 10:03:43 PM


No one has "taken over" the public school system. The public school system has decided to "rent out" space in the buildings that they own, when the school system is not using them. The building itself is property. It is not the school system itself.

If a local coin collectors club rents space, when the school system is not using the building, they have not "taken over" the school system.

In the same manner, if a church rents a school building for a sunday service instead of numismatic purposes, it has not "taken over" the school system.

Either the coin club or church will "take over" the space for the agreed upon time period, according to the rental agreement, but that is all. And if it is fair for one than it is fair for the other, according to the 1st amendment.


Posted by: Steve | Jul 8, 2012 9:05:05 PM