Once again, the U.S. Court of Appeals for the Second Circuit grappled yesterday with the constitutionality of a New York City Board of Education rule barring religious worship in public schools.
Reviewing the latest in a series of injunctions against the rule issued by a district court, Judges Guido Calabresi (See Profile), Pierre Leval (See Profile) and John Walker Jr. (See Profile) may have a sense of déjà vu as they heard spirited oral arguments in advance of issuing their fifth opinion in a controversy that has been litigated for more than 15 years.
The circuit has issued opinions in Bronx Household of Faith v. Board of Education, 12-2730, in 1997, 2003, 2007 and 2011.
Yesterday, the Board of Education was asking the circuit to reverse Southern District Judge Loretta Preska (See Profile) and defending itself against the claim that it is violating the religious rights of church groups that for years have used the schools for services and instruction after school hours.
The reason the board adopted the rule against after-hours worship, argued Assistant Corporation Counsel Jane Gordon, was that it was sincerely trying to avoid a claim it was establishing or endorsing religion.
"I did not expect to be here again" this soon, Gordon told the panel with a measure of exasperation. "The district court has put this department right back between a rock and a hard place" on the issue and "there's nothing the department can do to avoid actual or perceived violations of the establishment clause."
But speaking for the plaintiff Bronx Household of Faith, Jordan Lorence of the Washington, D.C.–based Alliance Defending Freedom told the panel that in adopting the rule, the city "targets a distinct religious practice that has no secular analogue."
The conflict in Bronx Household of Faith is whether the First Amendment is violated by Chancellor's Regulation D-180, which bars the use of a public school building after hours for "religious worship services" or as a "house of worship."
In June 2011, Judges Calabresi and Leval upheld the regulation as a content-neutral measure logically adopted to avoid being sued for violating the establishment clause. Walker dissented, and the U.S. Supreme Court declined to hear the case.
But in February, Preska issued another injunction against the rule, finding this time that it violated the First Amendment's free exercise clause.
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