November 2012 Church & State | People & Events


Attorneys with Americans United have asked a federal appeals court to find that New York City officials have the right to exclude worship services from public schools.

In a friend-of-the-court brief filed in mid-September, Americans United urged the 2nd U.S. Circuit Court of Appeals to uphold a New York City Board of Education policy that prohibits churches from conducting worship in public schools during off hours.

The policy allows community groups to use school buildings on weekends, but does not permit worship, partisan political events, for-profit activities, private social events, events not open to the public and events that discriminate against people on the basis of race or religion.

“When churches hold Sunday services in public schools for years and years without paying rent, it sends a message to students and the public that government favors religion,” said Barry W. Lynn, Americans United executive director. “Public schools should serve the public interest, not a private sectarian purpose.” 

Last year, the appeals court ruled that Bronx Household of Faith could no longer use a New York City public school to hold worship services, upholding a city policy. The congregation of about 50 had been using a public school, rent free, for almost 10 years.

The U.S. Supreme Court later declined to hear the dispute, so the church took its case to the U.S. District Court for the Southern District of New York, arguing that its right to free exercise of religion was being abridged. In June, the court sided with the congregation, holding that it was being unfairly targeted since other groups are allowed to use public schools for after-school or weekend activities.

Americans United disagrees with the district court’s finding, noting that the U.S. Supreme Court and other federal courts have repeatedly held that governments may deny subsidies to religious institutions that are available to non-religious organizations.

The First Amendment’s freedom of religion provision, AU asserts, does not give religious groups a right to government subsidies or assistance.

In the case of Locke v. Davey, for example, the Supreme Court upheld a state law that prohibited the use of state scholarships by those seeking theology degrees.

The New York City board’s policy is similar to the one at issue in Locke because it imposes no more than a minor burden on religious practice, accommodates religious groups by allowing school facilities to be used for religious activities that fall short of a worship service and is motivated by the important government interest of not subsidizing or promoting religious institutions, AU argues.

The Americans United brief in Bronx Household of Faith v. Board of Education of the City of New York was authored by AU Associate Legal Director Alex J. Luchenitser, in consultation with AU Legal Director Ayesha N. Khan and with assistance from AU legal fellows.

The Alliance Defending Freedom, a Religious Right legal group based in Arizona, is representing the church in the case.