NYC Churches forced to Vacate Neighborhoods

by Stanley Carlson-Thies

It’s a sad irony, really. December 8th was the thirtieth anniversary of the US Supreme Court decision, Widmar v. Vincent. In Widmar, the Court firmly set out the constitutional principle that government may not exclude religious groups from public spaces and other benefits on account of their religious speech or activities. Church-state expert Michael Paulson calls the decision “the most important religious liberty case of the past thirty years.” And yet, only a few days before, on Monday, the very same Court declined to review the Bronx Household of Faith case. This refusal allows a June federal appeals court decision to stand that permits the New York City Board of Education to boot the Bronx church and 60 other religious groups from their weekly meeting places, outside of school hours, in public school facilities—simply because the Bronx church and the other groups engage in religious activities on the school premises. The city said that Feb. 12, 2012, is the last day the groups can meet in the schools.

How can that be? How should believers respond?

The Supreme Court has not reversed its strong Widmar position; rather it has confirmed it in more recent decisions, including other cases also involving New York public schools. And it is likely some day to take up a case like the Bronx House of Worship decision. Churches meet in public schools in many places and while some federal appeals courts have approved the practice, the Ninth Circuit, out in the West, has ruled similarly to the Second Circuit’s June decision that the Court declined to review. These differences need to be resolved. For now, public schools in New York, Connecticut, and Vermont are legally free to eject congregations from public schools, but that doesn’t mean they all have or will.

The Second Circuit’s Bronx church decision was hardly a clarion call to officials to banish religion from public school buildings. The June ruling was 2-1, with a very strong dissent, and it did not even claim that the Board of Education is required by the Constitution to eject the congregations. Rather, it said that the Board has a reasonable worry that, if it allows the worship services, it will be violating the Constitution by “establishing” religion and thus it can reasonably decide not to permit that use of the facilities.

It is a mystifying ruling. The US Supreme Court has made it clear that it is a violation of the First Amendment, not a vindication, if every use of a public-school space is permitted except religious activities. How then can the two Second Circuit judges rule in favor of the Board of Education’s exclusion policy?

The New York judges drew a distinction. The US Supreme Court has ruled out “viewpoint discrimination”—excluding from public places the religious version of an activity while other varieties (political, social, philosophical, etc.) are permitted. But the Board of Education policy is different, the judges said: it excludes not a type of viewpoint but rather a type of activity—religious worship services. Believers are free to use public school facilities after hours for religious discussions, singing hymns, and even prayer. They just can’t gather for religious worship services. Worship services turn a public school room into a consecrated space, a church, and by permitting this, the school board establishes and subsidizes religion.

But this is a distinction without a difference, as the dissenting judge said. Or, if there is a difference, it isn’t a difference that government officials know how to make or can be entrusted to make. Don’t all those activities make up a worship service? And aren’t the religious groups’ uses of the facilities similar—except for the religious angle—to what many other groups do when their members gather to learn, celebrate, and support each other? In Widmar and other decisions the US Supreme Court has rejected the kind of distinction the two Second Circuit judges insist upon.

And the Supreme Court has rejected the other main contention of those judges: that the Board of Education’s fear of violating the Establishment Clause vindicates their ejection of worship services. That’s exactly backwards. There is no Establishment violation when a private group engages in worship and other religious activities. All that the Board of Education has done is to make the space available to every variety of community group. By contrast, if the Board selectively rejects only church groups, then it is violating the First Amendment. What the Board needs to fear is the appearance—and the reality—of a bias against religion when it keeps out the religious groups. Rather than a necessary policy, this is an unnecessary and mistaken slight.

The Board’s policy need not stand. The Second Circuit judges did not say the policy is required, and the school board, the city, and the state can change it. Bronx City Councilman Fernando Cabrera has said he’ll work for a state law to overturn the Board of Education’s ban on churches using public school facilities.

What should churches and Christians do? Pastor Caleb Clardy of Trinity Grace Church Brooklyn says the Bronx decision is an “opportunity” for Christians in the city—an opportunity to respond with love:

“The Christian church in New York City has a great opportunity right now. For years, schools all over the city have graciously hosted us. This has given us a wonderful opportunity. We need to be grateful for that hospitality. In these final months as tenants, we need to show our gratitude, and the love of Jesus. The truth is that the schools in our neighborhoods did not make this choice. We have built strong friendships serving them, and them serving us, for years. We must find ways to keep showing them love in this new season as well. This is the way of Jesus.”

Pastor Clardy rightly says that this is also a time for prayerful civic action. Jesus, he points out, “is not just a gentle savior. He is also a provocateur against injustice. I think it is possible to keep a loving posture and still offer a sincere challenge to our culture.” What should that challenge be? Not a demand for dominance.1 Timothy 2:1-2 urges giving thanks, but also petitions, for “kings and all those in authority.” The petitions shouldn’t demand Christian privilege but rather freedom so that we can “live peaceful and quiet lives in all godliness and holiness.”

For congregations to keep asking through the political process to be allowed to use public-school rooms, when the schools allow other groups to use the rooms, surely is appropriate. A positive response—reversing the Board of Education’s policy—is a great way for the city to accommodate the diverse collection of groups and views that constitute its population and society. It is a simple and fair way for the city to encourage the constructive teaching that Pastor Robert Hall told the court goes on in Bronx Household of Faith worship services: participants are taught “to love their neighbors as themselves, to defend the weak and disenfranchised, and to help the poor regardless of their particular beliefs.”

For the same reason, in passing laws and regulations concerning relationships, family formation, and reproduction where there are deep moral controversies, the city and the state ought to make sure that its policies adequately protect the freedom of people and organizations of faith to live and serve as they believe God requires them to do. The rest of society doesn’t have to agree with those organizations, but it will be poorer, and the poor will be in even more desperate circumstances, if rigid public policies drive people of faith out of being able to serve their neighbors as they believe God calls them to do.

Christians gain a lot from their non-Christian neighbors, as Miraslov Volf stresses in A Public Faith: How Followers of Christ Should Serve the Common Good. And yet Christians also have much to offer to their non-Christian neighbors, as he also says. They offer service and also their own conceptions of the common good. The city will thrive when it encourages, rather than discourages, believers from doing their faithful best to serve the welfare of the places where they have been sent (Jeremiah 29:7). Keeping public school rooms open to congregations is a good, simple, and basic step toward that.

Living in a pluralistic society is full of tension. How, as followers of Jesus, can we engage a culture that is often hostile to our beliefs?
As a follower of Jesus, how can you engage your civic government?

Editor's Note: This image of the Empire State Building and The Little Church Around the Corner was found on Flickr.

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