Thomas Jefferson, who penned the words “wall of separation” to describe the Establishment Clause, would have agreed with federal Judge Loretta Preska’s June 29 ruling that struck down New York City’s ban on worship services held in public schools when school is out.
The city still sought an immediate stay of the judge’s injunction so that it could evict the worship services while the case is on appeal. Happily, the federal 2nd Circuit Court of Appeals denied the stay request on Thursday.
Preska’s ruling in the 17-year-old legal battle between a small church and the nation’s largest school district allows churches and other religious groups equal access with others to meet in empty schools after hours.
Jefferson clearly understood the “wall of separation” to protect churches meeting in government buildings. He himself attended weekly church services at the US Capitol as vice president and president.
He attended church there two days after writing his famous 1803 letter to the Danbury Baptists discussing the “wall of separation.” Various churches met at the Capitol from its earliest days for some 70 years until after the Civil War.
Today, every major US school district follows this early American example of accommodating private religious expression — except New York City.
The city agrees that allowing community groups to use schools enhances civic life; it opens its school buildings for any use “pertaining to the welfare of the community.” Thousands of groups meet regularly in 1,200 city schools for concerts, neighborhood meetings, youth training, even the filming of TV shows like “Law and Order.” So why single out worship services for exclusion?
The lawsuit striking the policy started with a small evangelical church, The Bronx Household of Faith. Its dedicated members moved to a poor area of The Bronx in 1971 to help their neighbors and to preach the Gospel of salvation through Christ. Over the last four decades, members have helped people to get off drugs, stop stealing, rebuild their marriages and raise their children responsibly.
After 20 years of squeezing into various homes inadequate for weekly meetings, the church in 1994 asked to meet in a nearby public school. School officials said no.
In 1995, The Bronx Household of Faith and lawyers with Alliance Defending Freedom filed suit, challenging the ban. They argued that the city policy violates the church’s rights to freedom of speech and free exercise of religion by excluding worship services from buildings where it generally allows other groups to meet.
The city claims that accommodating religious meetings would violate the Constitution’s Establishment Clause — a view that the Supreme Court has repeatedly rejected.
Simply put, the high court has found that government accommodation of private speakers does not equal government endorsement of their views, nor does it create a confusing “symbolic union” between church and state. Letting the pope conduct Mass in Central Park doesn’t convert it into St. Patrick’s Cathedral any more than letting the Dave Matthews Band perform there turns it into Carnegie Hall.
But, argues the city, impressionable youth might be confused if a church meets on Sunday mornings in a city school. No: Students aren’t required to attend school on Saturdays or Sundays, when most religious groups meet.
Anyway, the Supreme Court has ruled that when the government targets religion for exclusion from a building that’s open to everyone else, the government sends youth a negative, non-neutral message that religious expression is dangerous or suspect.
The city also argues that letting religious groups meet would “subsidize” religion unconstitutionally. Again, no: Churches pay the same uniform rate that all other groups pay to meet. Similarly, letting a synagogue hook up to the city water system is not “government aid to religion.”
The New York City ban is emblematic of the much-too-widespread habit of public officials considering private religious expression to be dangerous and threatening, like asbestos that must be expunged from the ceiling tiles of the public square.
Simply put, the government does not treat churches “neutrally” when it treats them worse than everyone else.
Jordan Lorence is senior counsel with Alliance Defending Freedom, which represents The Bronx Household of Faith in its lawsuit.