The Christmas season is always a busy time for churches with opportunities for presenting the Gospel to folks who may only attend church on holidays, and challenges like attempting to keep 50 pre-schoolers from falling off the stage during the annual play.  The spike in attendance many churches experience sometimes necessitates renting school auditoriums or other public facilities to handle special programs like the Christmas play.  And some churches even get permission to erect Christmas displays in public parks.

Unfortunately, there are some groups that view Christmas time as the right time to attack religion by misusing the First Amendment to restrict religious speech.  They use the Establishment Clause – originally meant to protect the Church from control by the State – as an Anti-Christmas Clause.

The good news is courts have held that churches have every right to use public facilities and parks that are generally open to the public.  We’ve summarized the law governing equal access for churches in a document titled “Equal Access FAQ” on our resource page. That law is very clear: churches get the same access to government facilities to express their message as other community groups.  They cannot be denied equal access just because their message is religious.

For instance, in the 1993 case,  Kreisner v. City of San Diego, the U.S. Court of Appeals for the Ninth Circuit held that a private group could erect a Christmas display in San Diego’s famous Balboa Park.  The group (called the Christmas Committee) had been obtaining an annual permit for the display every November and December since 1953.  The display depicted eight scenes from the life of Christ – most of which centered around His birth.  Each scene was accompanied by an appropriate passage of Scripture.

Thankfully, the court got it right and confirmed that the Establishment Clause isn’t a license to attack public observance of Christmas – even if it is religious.  Churches should not be intimidated by anti-Christian groups and ignorant government officials who think religious speakers don’t have the same right to access government facilities as everyone else.  They should contact us at ADF, and we’ll make sure all involved are aware of what the law really says, and go to court to enforce the Church’s rights, if necessary.

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9/11 and Bronx Household of Faith by Jordan Lorence – ADF Sr. VP; Sr. Counsel

The 9/11 anniversary reminds me that nine years ago this month, I completed the legal pleadings for a lawsuit on behalf of a small church named Bronx Household of Faith against the Board of Education of the City of New York. Joe Infranco and I represented (and still represent) the small, intrepid church that has successfully challenged the Board of Education’s ban on private groups renting school facilities for worship services during nonschool hours.

I completed the documents on Friday, September 7, 2001 and shipped them to Joe Infranco’s office in Long Island for filing the next week. He planned to file the papers on Tuesday, so I wrote that date on the complaint: September 11, 2001. The date looks eerie in light of the horror that was to come on that day.

The federal courthouse in lower Manhattan stands only a few blocks from the site of the World Trade Center. The devastating terrorist attacks disrupted everything in lower Manhattan – roads blocked by debris, businesses destroyed or shuttered, phone service nonexistent or spotty for weeks. Judges and others at the federal courthouse on Pearl Street were cut off, communicating with the outside world only with cell phones. For some reason, the only cases that the judges could deal with were the newly-filed ones, so Joe and I attended court hearings in the months right after the attack.

What I remember the most from those visits to lower Manhattan was the smell — the acrid stench of burnt plastic assaulted those emerging from the subway, probably from the miles of wiring in the destroyed buildings. The smell lingered for months after the attack.

And I remember homemade signs — rows and rows of homemade signs posted on the plywood blocking the streets around the World Trade Center – signs looking for a lost uncle or mother or girlfriend or son “Last seen 9-11,” hoping that maybe their loved one was unconscious and nameless in some hospital rather than another one of the victims of the brutal and fanatical hatred.

One day, in November 2001, the state attorney general’s office invited us to their offices in Manhattan to discuss whether the State of New York should enter our case against New York City. About a half dozen lawyers met us in a board room with a large window to the outside – a window that looked down on the devastated wreckage of the World Trade Center. One of the state attorneys said something like, “we know to delay the start of any meeting we have in this room so that our visitors can see the horror of the destruction.”

I also noticed the people on the streets. They walked as if in shock, even weeks after the attack. And they seemed united by the tragedy. That got me thinking that maybe the terrorist attack might be the way to resolve this case quickly. So I wrote a letter to the attorney for the Board of Education of the City of New York, dated September 26, suggesting that the Board of Education temporarily suspend its policy against worship services in order to help Bronx Household of Faith, as well as the people of New York suffering from the attack:

My goal is to be flexible and work for a resolution of this matter in the best spirit of community that has arisen in New York City after the tragic September 11 attack. I live in the D.C. area, and the attack on the Pentagon has given us a taste of what New Yorkers are going through. In light of what has happened at the World Trade Center, and in light of the Supreme Court’s Good News Club decision, I think these policy restrictions barring religious services and instruction are now unconstitutional, are obsolete public policy and need to be abandoned.

Sadly, the Board of Education ignored my olive branch, and continue their fight against religious groups meeting on weekends and weeknights for religious expression, including worship services. Right now, churches and other religious groups are meeting in public schools because of a permanent injunction prohibiting the Board of Education from enforcing the unconstitutional policy. The Board of Education has appealed the permanent injunction. ADF defended that permanent injunction before the federal appeals court for New York City last October. A decision could come any day now.

As we approach the ninth anniversary of the murderous attack by Islamic terrorist on the World Trade Center, I hope that the school officials would recall those dark days of September 2001, and how New Yorkers and all of America pulled together for mutual comfort and support in a zenity of unity that our nation has not seen for some time. In the spirit of those times right after the 9/11 attack, I pray that the school officials in New York would change this unconstitutional policy, and welcome churches and other religious groups to worship freely.

Have you heard the joke, “if con is the opposite of pro, then congress is the opposite of progress?”  While there might be several examples supporting the truth of this statement, the Religious Land Use and Institutionalized Person’s Act (“RPUIPA”), passed by Congress, is not one of them.

RLUIPA is an example of Congress actually doing well by churches and protecting them from overzealous zoning officials.   Churches were being pushed out of cities and counties.  For example, they were being told they could not locate in the business district because church use was supposedly inconsistent with generating a revenue stream for the city.  But on the other hand, churches were also told they could not locate in residential areas on the theory that church use caused traffic and noise issues so it was inconsistent with residential use as well.  Churches had a real uphill battle on their hands just to locate within any part of urban and suburban areas.

To make matters worse, cities could discriminate against churches under the guise of a bogus safety issue that for some reason, only applied to churches and not other similar uses.   Something had to be done to rein in this seemingly unstoppable power of zoning officials to hinder church property use.

So Congress stepped up and provided churches with meaningful protection against these overzealous zoning officials by passing RLUIPA.  This federal law prohibits towns and counties from treating churches differently than other similar uses.  It protects churches from ordinances that substantially burden their beliefs and practices.

But a recent decision by the Seventh Circuit Court of appeals in River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, threatens to gut the protections of RLUIPA.  In this case, the River of Life church bought a building in a commercial district to hold its church services.  When the church bought the property, the following uses were automatically permitted: art galleries, gymnasiums, meeting halls, lounges and taverns, along with several other uses.  In addition, the following uses were allowed with a permit: museums, day care centers, schools of any kind, community centers, and live entertainment venues.

But, the city prohibited any and all church use in the district!  What possible reason could the city have for prohibiting a church, which teaches moral values to the citizenry, while allowing community centers and live entertainment venues?

So the church filed a lawsuit claiming that the town’s actions violated their constitutional rights, as well as their rights under RLUIPA.  But the Seventh Circuit ruled against the church.  In so doing, the Seventh Circuit effectively eliminated the protections of RLUIPA.   We will delve deeper into the court’s reasons in future blogs, but for now, I would like to point out this quote from the court: “Commerce and industry must be recognized for what they are, necessary and desirable elements of the community….”  See 2010 WL 2630602, *5 (C.A. 7 (Ill.)).

According to the court, the town was justified in discriminating against the city because “commerce and industry” are “necessary and desirable elements of the community”.   But what about the church?  Is not the work of the church necessary and desirable for the community?  Of course it is.  But to certain government officials who only understand the value of the dollar, providing moral direction and the other benefits of churches is worthless.

Maybe there will come a day when we remember that churches are also beneficial – and even necessary – to communities.

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The fictitious wall was not built over night, and it will not be dismantled over night.  This past week, ADF confronted the tangible results of the myth of an impenetrable wall of separation between church and state.  We sent out 151 letters to various governmental entities asking them to stop the discrimination against religious people.  These governmental entities, whose policies control over 750 public meeting rooms across the country, ban religious uses of their public meeting rooms.  So even though these rooms could be used by essentially any group to discuss any topic, they are off limits to Christians to discuss their religious viewpoints.

The most troubling aspect of this is the law in this area is crystal clear, and has been for some time.  In 1993, the Supreme Court ruled in  Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, that a public school cannot prohibit a group from accessing its facilities to talk about Christian views on the family when the school opens its facilities to others to talk about the family from secular perspectives.  Your Christian world view does not disqualify you from being a full citizen in America.  Legally speaking, the matter was settled.  The Supreme Court spoke, and there was no wall!

But just to make sure local governing bodies got it, the Supreme Court reiterated this viewpoint neutrality requirement in 2001 in Good News Club v. Milford Central School, 533 U.S. 98.  In this case, the Court said that even when dealing with a Bible club in an elementary school, governing officials cannot discriminate against Christian views when giving access to its public meeting rooms.

So in light of this clearly established law, why is it that so many unconstitutional policies remain on the books?  I see two primary reasons.  First is ignorance.  So many people have bought into the myth of strict separation of church and state, and have heard this lie for so long, that they have come to believe it is a bedrock constitutional principle.  They are shocked to learn the phrase “separation of church and state” is no where found in our constitution!  When a lawyer tells me that there is an impenetrable wall separating church and state in our constitution, I just hand them a pocket constitution and say, “show me.”  They can’t because it’s not there.

Second, there is a faction out there that despises religious people.  There can be no appeasing this crowd.  They know that there is no wall of separation found in the constitution, but they wish it were there.  So they repeat this erroneous constitutional principle over and over and over in hopes that it will stick in peoples’ mind.  And unfortunately, the fact that so many bad policies are still on the books is evidence that their plan has worked to a degree.

So these governmental agencies have options in how they will respond to ADF’s letter.  Either they can treat this as an opportunity to educate themselves, learn what the constitution really says, and fix their policies.

Or, they can dig in their heels, insist on promoting an anti-religious agenda, and keep on discriminating against Christians.  Let’s hope our governmental officials do the right thing and stop the discrimination.

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Silly question, right? Not to one California church, who was barred from using a public library meeting room, even though the room was open to all other private community groups. The County Librarian even acknowledged that groups like the Ku Klux Klan were free to use the facility. But church services were forbidden.

It may be tempting to dismiss this as one isolated incident. But the sad reality is that these types of policies are prevalent around the country. ADF has successfully represented dozens of churches in similar cases. And we have uncovered hundreds of community centers, libraries, schools, and other public facilities around the country that rent to community groups, but blatantly discriminate against religious groups by refusing to rent to them or by charging them higher rental rates.

These policies make no sense. After all, social science bears out what many of us see as self-evident: churches offer valuable contributions to the community such as social services, education, increased volunteering, and reduced crime. (An Ethics & Religious Liberty Commission’s paper concisely summarizes many of these studies.) And, especially in this time of economic uncertainty, local governments would surely benefit from the additional revenue it would receive by renting otherwise unused facilities to churches.

So why is there so much hostility toward churches? Public officials often seem to have a Pavlovian-like reaction against anything religious, claiming that the so-called “separation of church and state” prevents churches from ever stepping foot in a public facility. But that’s not what the Constitution actually says. In fact, since 1981, the U.S. Supreme Court has ruled in four different cases that the First Amendment gives religious groups the right to have equal access to a public forum that other community groups are allowed to use.

Fortunately for the California church, a federal court recognized this precedent and struck down the library policy as unconstitutional, opening the door for churches to have equal access to its meeting rooms. But it took five years of litigation to get there. Other cases have taken much longer. A school district in New York, for example, has been in court for 15 years doggedly fighting to keep churches from meeting in vacant school buildings on weekends.

ADF, who represents both churches, will continue to stand up for the time-honored principle that the First Amendment protects the right of all religious groups to equal access.

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To learn about your church’s right to meet in public facilities, read Equal Access FAQ.

To understand what’s at stake, download this important summary. Learn what’s at risk and how you can specifically pray for equal access rights for churches.