In Bronx Household of Faith v. Board of Education of the City of New York, the Second Circuit issued an opinion that directly contradicts the last thirty years of Supreme Court precedent, takes away a vast amount of legal protection for religious speech, and I guarantee will make every Christian scratch his or her head, and mutter, “What in the world were they thinking?”

Let me give you a little context.

In 1994, the Bronx Household of Faith, a church in New York City, sought to meet in a public school facility.  These public facilities were open to almost any group in town.  In fact, the School Board’s policy stated that school facilities were open for “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community ….”

You want to meet to talk about the importance of comic books in a civilized society?  Fine, come on over.  You need a room to discuss the importance of beetle dung to our environment?  Use room 100.  Come one, come all. 

Well, not really all.  You see, not all groups were welcome.  While the School allowed essentially any and every use of its facilities, School policy prohibited the use of school property for “religious services or religious instruction.”

Consequently, the School denied the Bronx Household of Faith the right to use school facilities on the same terms and conditions as others.

I am sure you have heard this same sad story before.  It is as old as “boy meets girl.”   Unfortunately, governing bodies have attempted to suppress religious speech for several years.  But thankfully, courts, including the U.S. Supreme Court, have consistently rejected these efforts by governing bodies to treat religious people as second class citizens.

For example, in 1981, the Supreme Court rejected in Widmar v. Vincent, a university’s attempt to prevent a student organization from using an open forum to hold meetings, similar to those at issue in Bronx, that included “prayer, hymns, Bible commentary, and discussion of religious views and experiences.”

In Lamb’s Chapel  v. Center Moriches Union Free School District, a 1991 decision, the Supreme Court struck down a school policy that allowed essentially all community groups to access school meeting rooms, but prohibited religious views from being presented in those rooms.

And in Good News Club v. Milford Central School District, a 2001 case, the Court held that it was unconstitutional for a public school district to exclude from its facilities “a private Christian organization for children,” which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray.

All of these cases were decided based on the theory that prohibiting prayer, religious devotion and religious instruction is nothing more that viewpoint based speech discrimination.  And our constitution prohibits speech restrictions that are based on the views of the speaker.

But this long line of cases did not dissuade the School Board from attempting to prohibit the Bronx Household of Faith from accessing its facilities.  Instead, it amended its policy to exclude “religious worship services” and again denied them access.

And the Second Circuit, despite all the cases prohibiting governing bodies from denying religious groups access to public facilities, agreed with the School.  According to the Second Circuit, a policy prohibiting religious worship services is not a prohibition on religious instruction or religious devotion.

This was a head scratcher.  How can a policy that prohibits religious worship services not be a policy that also prohibits religious instruction and religious devotion?  I have been attending church all of my life, and this reasoning just did not make any sense.  Every single service I have ever attended consisted exclusively of religious devotion and religious instruction.  Except for an occasional announcement, a religious worship service is religious instruction and devotion.

Pray tell (pun intended), will someone please tell me what a worship service is, then, if it is not religious instruction or religious devotion?

The Second Circuit offered up its definition of a religious worship service.   The Court began by saying the “religious worship services” clause does not purport to prohibit use of the facility by a person or group of persons for “worship.”

OK, now I am more confused.  So you can use the rooms to worship.  You just can’t hold a worship service.  Then what is prohibited?  The Second Circuit went on:

“What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion.”

Oh that clears it up! So if your religious meeting is organized, done repeatedly, and supervised by a pastor, though not necessarily, then it is a worship service.

The problem with this definition of worship service is that it also describes the use of school facilities in virtually every other access case already decided by the Supreme Court.  This definition fits the use of facilities in Lamb’s Chapel, Widmar, and Good News Club just as accurately as it describes any other church service.  In Good News Club, the religious meetings were done according to an order established by a religious organization, often a church.  It was a collective activity as the meetings were regular.  It was organized.  And in many Good News Clubs, the person running the club was also a pastor at a local church.  In fact, many Good News Clubs are church run.

Furthermore, this definition is not a real accurate description of contemporary worship services.  The more church services I attend, the more I realize this – there is no set order for church services.  Some have an offering in the middle of the service.  Some have it at the end.  Some have a sermon in the middle.  Some have it at the end.  Some mix it up every week.

Some follow a strict liturgy that has been used by churches for 2,000 years.  Some make it up right before the service.  I even attended one service that lasted 4 hours and had absolutely no direction to it.  It just consisted of people praying and singing. Many modern services only have two items on the agenda – half hour of music and a half hour of preaching.  In case you missed it, that would be a half hour of religious devotion and a half hour of religious instruction.

Oh wait, but that is exactly what the Second Circuit said it was not prohibiting.  OK, now I am really confused.

The court then went on to explain, “There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”  The court then explained that prohibiting worship services is akin to prohibiting “livestock shows” and “horseback riding.”  I swear I am not making this up.  The court said that the school could prohibit such shows, even though undoubtedly during the shows, people would be expressing pro-animal viewpoints.

Thus, according to the court’s logic, prohibiting livestock shows within school buildings is not viewpoint discriminatory even though people would be expressing pro-livestock views during the shows.  In the same way, prohibiting worship services is not viewpoint discriminatory even though during the worship service, people would undoubtedly express religious views.

I hope I am not overstating the obvious when I say that there is a slight difference between prohibiting horseback riding and livestock shows in a public school facility and prohibiting a church service.  In one, you are clearly worried about the damage to the carpet that is irrespective of the speech.  But in the other, the entire activity consists of speech.

And if this distinction between suppressing religious views and prohibiting worship services seems terribly confusing to you, you are not alone.  In Widmar, the Court struck down an attempt by the university to justify its discrimination against religious speech by creating “a new class of religious speech act[s] constituting worship.”  The Court explained that this proposed distinction lacked “intelligible content” and would not “lie within the judicial competence to administer.”

The bottom line for pastors and church leaders here is that this fight is not over.  We are appealing this decision, and the United States Supreme Court will likely have the final say.  This opinion, that hurts all religions and faiths, must not stand.   But as for now, remember, you can worship in school facilities, you can meet in school facilities to engage in religious instruction and devotion, you just can’t hold a worship service.

If this makes sense to you, then between the two of us, that makes one.

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Blog by Jordan Lorence – ADF Sr. VP; Sr. Counsel

The Alliance Defense Fund has petitioned the Second Circuit to rehear the Bronx Household of Faith case en banc, which means that all eleven judges will decide whether to rehear the case. The Bronx Household of Faith case involves a challenge by the local Bronx church to a New York City school district policy that prohibits religious groups from meeting in public schools for worship services. New York City allows other community groups to meet during nonschool hours for their meetings for basically any purpose, yet singled out worship services for exclusion. However, churches and other religious groups have been meeting for worship services in the New York City public schools for nine years, after a federal district court court enjoined the worship exclusion policy in June 2002.

On June 2, the federal appeals court sitting in New York City, the Second Circuit, reversed the injunction that had been allowing the churches to meet and upheld the anti-worship service policy. If this opinion goes into effect, the school district could refuse to renew the contracts of religious groups that engage in the forbidden expression after their agreements with the school district expire at the end of June in a few weeks.

The filing of the petition for rehearing en banc halts that from happening, at least in the short term. All eleven judges on the Second Circuit must consider whether to rehear the case, to either uphold or reverse the three judges who upheld the worship exclusion policy. The eleven judges have no time deadline for considering the church’s petition for rehearing.

We at ADF often are asked what legal issues should most concern churches.  And we make it a practice to ask the many pastors around the country we represent and interact with what they are most concerned about. Based on those experiences, I have compiled a top ten list of sorts that I will be blogging about for the next couple of weeks.  The top concern will be listed first, and is the subject of today’s post.

Land Use – We are seeing a marked increase in the number of churches contacting us because local officials have made it difficult, if not impossible, to build a new facility or expand their current one.  Church use of land is often treated as poorly as sexually oriented businesses.  ADF has already had to file five of these cases this year.  One of those, Palm Beach Gardens Baptist Church v. City of Port St. Lucie, involves three small churches that have been told by the city they cannot locate in a shopping center where private clubs and day care centers are welcome.  The best way for churches to combat this discrimination is first to educate themselves and zoning officials on the law and not just assume the city is acting in compliance with it.  A good place to start is our resource, “Land Use FAQ” on the resource page of speakupmovement.org/church.  If the government officials insist on treating churches less favorably than secular assemblies, the church should contact us, and consider filing a lawsuit to protect their rights as well as those of other churches in the area.

Check back soon for the #2 issue – Property Taxes.

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What does tidiness have to do with a church’s tax exemption? That is exactly the question that church leaders at the Liberty Assemblies of God church in Concord, New Hampshire are asking themselves after city tax officials rifled through their drawers during a recent inspection of the church property concerning its tax bill.

Let me give you the context. The church has existed in its current building for over 15 years. This church is your typical church. It has services on Sunday morning. A music minister leads the people in singing. They even have the occasional person who sleeps through the pastor’s sermons. (Though based on my dealings with this energetic pastor, not many would want to miss his challenging sermons that really bring biblical concepts to current life issues.)

But this church also treats seriously the God-given call to help the poor and disadvantaged among us. So this church opened its facilities to help those in need with food and a place to stay. On several occasions, this church opened its doors to people who lost their home, were currently homeless, or otherwise unable to find a place to live.

This church provided food for those who were hungry. It had a closet where it kept food to give away to those in need. In essence, this church decided that merely talking about doing God’s will was not going to cut it. It put its faith in action and actually used its facilities to carry out God’s command to care for the needy.

Unfortunately, not everyone agreed that doing God’s work served a religious purpose. Taxing officials from the City of Concord decided that if the church used its building to house the homeless, it would cease being a church as such use would not serve a religious purpose.

So the City officials inspected the church to see if it was being used for religious purpose. Their inspection and their conclusions defied all logic and common sense, as well as were an affront to basic constitutional rights. These officials conducted a room by room analysis of each room, even going through the drawers in the rooms! The city was looking for evidence to support their claim that the church was not being used as a church or that such use did not serve a religious purpose.

Despite the Church’s beliefs to the contrary, the City decided it knew theology better than the church and concluded that housing the homeless did not serve a religious purpose. The City stripped the church of its full tax exemption. When asked how the City could possibly come to this conclusion, Kathryn Temchack, the city’s director of real estate assessments, said it was because the rooms were not clean!

The following are actual quotations from Ms. Temchack’s deposition.

* She testified that, although the storage of a desk and a musical keyboard could serve a religious purpose, the Church’s storage of such items did not serve a religious purpose “because of all the other junk that’s sitting around it.”

* When asked if the cleanliness of how things are stored play a part in whether items were being used for a religious purpose, she said, “it could be. I think there would be some kind of order to it if it was being used for a religious purpose, that you would expect to see tables, chairs, religious posters, a cross, an altar, something of that magnitude here that would say that there’s something religious happening. Bibles. I see just a bunch of stuff sitting in a room.”

* When asked if the storage of a keyboard served a religious purpose, she said, “it’s just not so much the storage of the keyboard. It’s the appearance of the area that it’s in. It’s the condition of those rooms, that it just appeared to be not in use or organized for any type of use.”

* When asked if the storage of a box for the power point projector (used during the worship) could serve a religious purpose, she testified, “I think it’s the condition of this room. If it’s being used for storage, it’s like how would you know? I don’t know how anyone would know where anything was in this room or how you would find anything in this room. It’s the condition of what’s in the room of the property itself. It’s just a bunch of stuff.”

Apparently, Ms. Temchack took seriously her mother’s admonition that cleanliness was next to Godliness!

The city also made such illogical conclusions that while using a church room to talk about caring for the homeless would serve a religious purpose, actually caring for the homeless in that room would not serve a religious purpose.

We at ADF are representing this church in this case. We believe that a church does not cease being a church when it opens its doors to help out the less fortunate. Rather, by so doing, the church is being faithful to its biblical calling. A New Jersey court recently noted, “The concept of sanctuary has been a strong element of religious tradition from Moses to the New Testament. Sheltering the homeless and caring for the poor has consistently been a church function, carried out for centuries by religious persons.” See Saint John’s Evangelical Lutheran Church v. City of Hoboken, 479 A.2d 935, 937-38 (N.J. Super. 1983).

If you are a pastor of a church, or serve in leadership at your church, the moral of the story here is that you need to make sure you are currently using your church building for religious purposes. The city officials in Concord stated that it could tax a church closet if it was not being used for a religious purpose! So make sure each of your rooms are currently being used for a religious purpose. Draft a policy that spells out the religious use and purposes of the church building. If you have any questions about your legal rights, or feel that you are being discriminated against, please contact the Alliance Defense Fund.

But most importantly, remember that according to some city officials, your mother was right – cleanliness is next to godliness.

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God has chosen to use the Body of Christ to bring not only His message of salvation to the world (Matthew 28:19-20), but also a message of truth and love through providing for the needs of people (Matthew 25:34-40).  Our Founding Fathers recognized the importance of the Church’s mission.  George Washington said in his Farewell Address:  “And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure–reason & experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”

Unfortunately, many of our political leaders have forgotten this today.  Churches are often seen as just one more non-profit organization that focuses on their own constituents.  So local municipalities enact zoning codes that prohibit churches in residential areas because they cause too much traffic.  They exclude churches from agricultural zones because they detract from the bucolic ambiance, and forbid them in commercial zones because they don’t generate enough taxes.

But when cities and towns exclude churches, they do so to their detriment.  Studies have shown that churches are a tremendous benefit to the communities they serve.  For instance, a Baylor University study found that kids that attend church in low income neighborhoods have a better chance of staying in school and succeeding academically.  Another study concludes that “Churches and religious groups offer a vast array of services to their local communities …that sometimes are not being provided elsewhere, such as [a]fter-school programs, refugee resettlement, homeless shelters, [and] food banks….”

In recent months, ADF has been increasingly involved in cases defending the right of churches to even have a place to meet.  Woodbridge Church near Minneapolis was the victim of a town zoning ordinance that specifically targeted them for restrictions prohibiting future growth.  Port St. Lucie, Florida is prohibiting Palm Beach Gardens Baptist Church from locating in an area where other types of assemblies like private clubs are allowed.  And the City of Mission, Kansas now taxes church attendance with property assessments disguised as “fees.”

This is sad and alarming at the same time.  The many social services churches provide through food, clothing, and counseling will be sorely missed by these communities.  And, according to our first president, without the church and the morality it fosters, our government could very well collapse into anarchy.

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