God has been evicted.

That is the message from a federal appellate court in ruling that the Bronx Household of Faith, a Christian denomination, could no longer use public-school property for its services. The court overruled the decision of a lower court judge, who had repeatedly protected the congregation’s rights against New York City.

As if that weren’t bad enough, the court’s reasoning should give believers further concern.

But first, some background. The New York City Board of Education allows its public-school property to be used for a variety of purposes and by groups of all kinds. The activities generally take place outside of school hours or in the summers. But it has generally prohibited religious entities from using these same facilities for “worship services” out of some undefined fear of violating the Constitution; this seems to be the only such ordinance in the nation. That municipalities would engage in such a blanket prohibition is itself a troubling feature of the court’s interpretation of the First Amendment.

The Bronx Household of Faith is a small, poor congregation that could not afford its own church building. They have been using a public-school space for many years to hold their services, thanks to the lower court, despite city efforts to evict them. They do not proselytize at the school, and no one from the school is expected or required to support the Household’s religious activities.

The board’s deliberations in passing the prohibition show how absurd the prohibition is. The ordinance prohibiting religious worship does not prohibit other religious activities and allows groups to “teach religion, sing hymns, recite prayers and express or advocate their religious point of view.” By itself drawing the line at “religious worship services,” the New York City Board of Education is deliberately interfering with religious groups' exercise. In other words, through this ordinance, the government gets to determine what constitutes “worship” and what does not. This, and not allowing services on school grounds, is the real constitutional violation, but that goes totally unaddressed by the court.

The lower court found that such a prohibition violated the Constitution, because the board had no compelling reason to exclude only religious groups from using the school; allowing them to do so would not cause any reasonable person to believe that the board was “establishing” religion. Nonetheless, the appellate court disagreed and found that the use of the building by the Household represented an “establishment of religion” in violation of the First Amendment.

How can that be? The city does not promote the Household of Faith, and it permits organizations of all kinds to use its schools. There was no evidence that the city gave favorable treatment of any kind to the church. Here is the core of the court’s reasoning:


“The board has no such motivation [against religion]. There is not a scintilla of evidence that the board disapproves of religion or any religion or religious practice, including religious worship services. Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services the board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion. This difference is of crucial importance in … reasoning that a burdensome regulation focused on a religious practice is constitutionally suspect and therefore subject to strict scrutiny. This reasoning makes perfect sense when the regulation’s focus on religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a particular religion or religious practice). On the other hand, it makes no sense when the regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in complying with the Establishment Clause.”

But this principle of “appearing to endorse” knows no endpoint. “Endorsement” does not mean the same thing as “establishment,” which is what the Constitution prohibits. Arguably, things like opening the Supreme Court and legislative sessions with a prayer and similar traditions do in fact “endorse” religion as an important part of our national heritage, but they do not “establish” any particular religion as a state-sanctioned faith.

But even getting past that, endorsement is a tricky test, and the court takes it one step further by making endorsement entirely subjective. “Seems” to whom? By what standard? The court seems to think that someone under any misimpression that the city has endorsed the Bronx Household of Faith can form the basis of a constitutional claim. This is simply bad law.

The constitutional protection of religious exercise should not depend on someone’s subjective “offense”; indeed, the protection of religious exercise is precisely to protect a level of tolerance of beliefs which we may find odd or troubling.

St. John’s University law professor Marc DeGirolami has written that cases like this simply “bloat” the plain constitutional meaning of the First Amendment by relying on hurt feelings and personal affronts in place of a usable, objective standard that would permit nondiscriminatory use of public facilities without the cry of “endorsement.” Moreover, the court’s test — that allowing religious services “might give rise to an appearance of endorsement in violation of the Establishment Clause” — gives free rein to those who would exclude religious activity from equal access to public facilities by categorizing any religious activity as “worship.”

Communities such as Bronx Household of Faith deserve better.

Gerald J. Russello is a practicing attorney and editor of The University Bookman.