In October 2011, we reported about the decision in Bronx Household of Faith v. Board of Education of City of New York.  A church filed suit against the board of education of New York alleging that its refusal to permit the church to use school facilities for worship services violated the First Amendment.  The board had adopted a facilities use policy that prohibited the use of school property for religious worship.

At that point in the litigation the matter was before the appellate court in an appeal of the district court’s issuance of a preliminary injunction against the board.  The appellate court found that the policy did not violate the First Amendment.  Subsequently, the church re-applied for a permit to use the facilities.  After the application was denied, the church sought a new preliminary injunction, which was granted.  Upon direction from the appellate court to render a final judgment, the district court entered final judgment against the board, finding that the policy violated the Free Exercise Clause and Establishment Clause of the First Amendment.  The district court’s decision was based upon a recent Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, which addressed some of the same issues and was rendered after the appellate court’s earlier decision.

The board’s policy provided that “no permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship.”  In analyzing whether the policy violated the Free Exercise Clause of the First Amendment, the district court concluded that the policy’s prohibition against “religious worship services” indicated discriminatory treatment between those religions that had formal religious worship services and those religions whose worship practices were less structured.  The district court noted that laws discriminating among religions are subject to a strict scrutiny test, which requires that a party show a compelling interest for the law at issue and that the law be narrowly tailored.

The board argued that it had a compelling interest to implement the policy in order to avoid an Establishment Clause violation (a claim that the policy caused the board to be excessively entangled with religion).  The district court found the board’s argument flawed because the policy singled out those religions that conducted worship services rather than treating all religions the same.  The district court noted that many non-theistic religions exist that do not conduct worship services.  For example, Theravada Buddhists do not worship or participate in worship services, but instead hold meetings where participants teach, learn, meditate, and chant.  Because such participants do not conduct worship services, they would not be barred under the board’s policy whereas followers of religions that do conduct worship services would be excluded.  Further, other courts have held that a school board does not violate the Establishment Clause by permitting religious organizations to hold worship services during non-school hours. 

Although the board claimed that it was attempting to avoid an Establishment Clause claim, the district court found that the policy actually violated the Establishment Clause.  The terms of the policy required the board to determine whether the applicant’s proposed activities constituted “worship services” and required the board to verify the nature of the religious practices.  Because such practices excessively entangled the board with religion, the policy actually violated the Establishment Clause.  As a result, the district court permanently enjoined the board from enforcing its facilities use policy.

This decision demonstrates that courts disfavor facilities use policies that discriminate among religions.  Boards should carefully review their facilities use policies in order to avoid any potential First Amendment challenges.