Yesterday marked the 30th anniversary of the U.S. Supreme Court’s landmark decision in Widmar v. Vincent.  Perhaps you’ve never heard of this case, or perhaps you don’t really care.  But you should.  For Widmar is the cornerstone of modern religious liberty jurisprudence.

In the 1970s a small, but thriving group of Christian students from various denominational backgrounds met regularly on the campus of the University of Missouri at Kansas City.  They called their group, Cornerstone.  The students met in the University’s student center and other facilities to pray, sing hymns, read scripture, share personal testimonies, and discuss the Bible.

But in 1977, the University decided that Cornerstone could no longer meet in its facilities.  The University said that it had a regulation that prohibited the use of its buildings or grounds for religious worship or religious teaching.  I suspect that universities across the country had been doing this sort of thing for years.  There was, and still is, a mistaken understanding of the First Amendment as it applies to student speech on campus, particularly the application of the Establishment Clause, and university administrators, whether in good faith or not, regularly oust Christian student groups for fear of violating it.  But rather than capitulate and move their meetings off campus, the students in Cornerstone drew a line in the sand and said, “No more.”  We owe them a debt of gratitude.

Eleven students filed a lawsuit against the University, alleging that its policy of excluding religious worship and teaching from University buildings violated the First Amendment.  I can imagine they asked their lawyers many of the same questions ADF clients ask me:  Will this have an effect on my degree?  Will the university punish me for suing it?  What will I tell my friends?  These are valid questions, but it seems they already answered the most important question, “why should I do this?”  The eleven students must have known that the ability of their group to survive and share God’s Word depended on it reaching students on campus.  And the only way to reach students on campus was to be on campus.

The students road to justice, however, was not paved smoothly.  The federal trial court ruled against them and held that the Establishment Clause of the First Amendment not only justified, but required the University’s exclusionary policy.  Our nation’s misapprehension of the Establishment Clause runs deep.

A federal court of appeals reversed that ruling and held that the University’s policy of banning worship was a content-based regulation of speech for which there was no compelling justification.  It also ruled that the Establishment Clause does not bar religious speakers from accessing a publicly open facility on equal terms with all other speakers.

The University, not satisfied with this result, asked the Supreme Court to take the case.  And against all the odds, it did.  The case was argued the day before my second birthday in October 1981, and the Court handed down its decision two months and two days later, December 8, 1981, the day after the fortieth anniversary of Pearl Harbor.

In Widmar, the Court held that the University’s policy of excluding religious worship and religious teaching from generally open university facilities discriminated against speech based on its religious content.  In other words, if the University opened its facilities for basically any type of speech, it could not exclude religious speakers.   The Court also held that the government does not violate the Establishment Clause by opening its facilities neutrally to private expression.

When the decision came down, Linda Greenhouse wrote in the New York Times that the “decision is significant . . . in that it provides what may be the Court’s clearest explanation so far of how religious observance fits within the free speech guarantees of the First Amendment.”  Religion, it seemed at the time, would not be relegated to second-class status.

Widmar paved the way for many of the Court’s subsequent religious speech cases involving access to public school facilities, student activity fee funding, and church use of public facilities.  It even set the legal table for Congress to later enact the Equal Access Act, which protects the ability of religious student clubs to meet on public school property.  If you were ever in a Christian club at your public school or college or if you have ever attended a church or Bible study that met in a school or public facility, you have Widmar to thank.

Despite Widmar‘s remarkable impact on religious liberty, some have forgotten it.  Just this week, we told you about the disappointing result in Bronx Household of Faith v. The Board of Education of the City of New York.  The Bronx case, like Widmar, involved a group of Christians who sought to use publicly available school facilities for their Sunday morning gatherings, but who were prohibited from doing so because the city banned worship in its facilities.  For a decade the church litigated whether the city’s policy violated the First Amendment, and in June, the federal court of appeals ruled that the city’s policy was constitutional.  The result:  an estimated 60 churches will be evicted in February because of this ruling.  Yes, that’s right, in direct conflict with the Supreme Court’s decision in Widmar, a subordinate federal court excluded Christians from publicly available facilities because of the way in which they communicate their speech – worship.  It seems some people want to forget Widmar, or at least relegate it to a dusty storage room shelf.

But some have not forgotten.  Yesterday, on Widmar‘s 30th anniversary, many people gathered on the steps of City Hall in New York, including city council members, congregants, and pastors of churches that will be evicted in February.  They rallied to repeal the city’s discriminatory policy and to keep churches meeting in city boroughs that desperately need them.

So why shouldn’t you forget Widmar?  Professor Michael Stokes Paulsen says it best:

Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject . . . .

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

So lest we lose the precious freedoms we have, don’t forget Widmar.  “Tell your children about it in the years to come, and let your children tell their children. Pass the story down from generation to generation.”  (Joel 1:3)

Fox News is running a report on the Bronx Household of Faith case that ADF appealed to the Supreme Court at the end of September. Bronx Household of Faith is a small evangelical Christian church that is challenging in court the rule by the New York City public schools to allow community groups to meet in the school buildings on weeknights and weekends, but prohibits them from engaging in worship services. A federal appeals court in June overturned an injunction that had been in place for nine years allowing religious groups to meet on the same terms and conditions as all other community groups. We expect the Supreme Court to decide whether to hear the case or not at its November 22 conference.

Congregation Fights for Use of Bronx School Space: MyFoxNY.com

Tuesday, ADF asked the U.S. Supreme Court to reverse the decision of the federal appeals court in New York City allowing the Board of Education there to single out religious worship services run by private groups, and exclude them from meeting in the public schools during non-school hours, when other community groups are free to meet. We have discussed this case previously here and here.

The petition for a writ of certiorari ADF filed argues that the NYC school policy violates the First Amendment.  Here is a sample of the arguments we make:

The Second Circuit’s decision sets forth an unprecedented dichotomy of First Amendment law – the only difference between an allowable expressive use and a forbidden expressive use in this case is a theological one: does the expression constitute a “worship service”? This is not a constitutional criterion for excluding speech. Private speakers may gather for a meeting that contains singing, prayer, preaching and ceremony, but if the private group labels its meeting a “religious worship service,” it is suddenly forbidden.

At this point, we expect the Supreme Court to decide whether to hear the case on November 22.  Stay tuned.

     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.

   The U.S. Court of Appeals for the Second Circuit on Thursday issued a stunningly wrong decision denying the First Amendment rights of churches and other religious groups to meet in government buildings on the same terms and conditions as other community groups.  In the Bronx Household of Faith decision, the judges by a 2-1 vote, upheld a New York City school board policy that bans religious worship services from meeting in the City’s almost 1200 public schools at times when school is not in session.  The school board allows private community groups to meet for any purpose “pertaining to the welfare of the community,” yet explicitly singles out religious worship services for exclusion.   Thousands of community groups meet in the schools each year.   About 60 or so churches meet weekly in NYC public schools, according to school officials.  Many other religious groups, including Hindu, Buddhist, Jewish and Muslim groups, meet in the schools on a less regular basis.  These religious groups have been meeting under an injunction won by ADF attorneys nine years ago in 2002.  The Second Circuit overturned that injunction Thursday and reinstated the policy that bans worship services, but allows all other forms of private expression (speeches, debates, recitals, meetings, ceremonies, etc.).

     The majority opinion finds constitutional significance in the fact that the school board is  banning 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 majority opinion explains that although the school board could not ban religious expression, it could ban activities, or events, such as “marital art matches, livestock shows and horseback riding,” A church service is like a rodeo, the majority reasons, so it can be banned!

       The big flaw here is that the majority views a “worship service” as a singular event and refuses to see it as a collection of  specific expressive acts.  But that is essentially a theological determination, and not a matter of constitutinal law. A federal court, or a public school district can only use the Constitution when examining whether to permit a “worship service” in its forum.  That means it should view a ”worship service” as a summation of component expressive elements, such as singing, preaching, prayer, Bible reading, etc.   The issue should be whether the government’s policy setting up the forum allows that speech.  However, the Second Circuit does not agree, making the incredible statement that  ”[p]rayer, religious instruction, expression of devotion to God, and the singing of hymns, whether done by a person or a group, do not constitute the conduct of worship services.  Those activities are not excluded.”  This is not a misprint.  The Second Circuit freely admits that all of those expressive activities are permitted under the NYC policy.  But those expressive activities combined together is exactly what Bronx Household of Faith does at the schools on Sunday mornings.  So just because Bronx Household of Faith calls it a “worship service,” the label allows the school district to ban the meetings from the forum, the majority ruled.  The label a private groups chooses for its meetings should not make a constitutional difference and allow the school district to ban the church’s expression.   A worship service is not some sort of mutant form of expression that garners less protection under the First Amendment.      

     The elegant and powerful dissent by Judge Walker exposes the defects and wrong reasoning the majority opinion.  His compelling analysis rightly explains how the Supreme Court has repeatedly rejected the arguments the school board has raised to defend its policy.    He points out the major flaw in the majority’s opinion:  This is private religious speech, not government sponsored religious speech.  The government does not sponsor private expression that it permits in an empty public building. This violates the free speech rights of the church, and the Establishment Clause does not require such a harsh religious exclusion.   This will be the basis that the Supreme Court or the Second Circuit sitting en banc  will use to reverse this decision.

        We are planning to appeal the case.  Getting the correct interpretation of the Constitution is important.  But there is another important factor here - the many churches now meeting in New York City public schools and the people and families they impact throughout the city.   The school district estimates that around 60 congregations meet regularly in the 1200 school buildings on weekends.  I do not know how many people attend these churches, but there are probably many who are finding help for themselves, their marriages, their families, etc.  There are many who are finding hope in Christ and the truths fo the Scripture.  These churches are helping people to clean up their lives, get off of drugs, save their marriages, stop stealing, learn how to raise their children responsibly, motivate them to help their neighbors as Christ commanded, etc.  All of  that “pertains to the welfare of the community,” as the New York City policy requires for any community group meeting in the public schools on the weekends.  My prayer is that this unconstitutoinal policy will never again go into effect, and that the churches will continue to meet freely in the New York City schools as they have for the past nine years.