The New York City Law Department, citing the trouble to which the city and the churches had gone to wind down the use of schools for worship, moved for a stay of Preska's ruling.
The circuit denied the stay, but sent the case back to Preska for a quick adjudication so it could resolve the inevitable appeal that would follow.
On June 29, Preska set up that appeal by ruling again for the Bronx Household of Faith, saying enforcement of the rule "would amount to a concrete loss of religious freedom."
For yesterday's arguments, the city's brief by Gordon said that the law of the case and res judicata blocks Bronx Household of Faith from mounting another challenge on free exercise grounds or relitigating the establishment clause claim.
Even if the circuit finds that the church can raise anew the free exercise claim, Gordon states, "the district court's analysis of this issue is wrong."
Gordon also states that Preska's analysis of the rule under the establishment clause "fails to accord the department the leeway this court has found permissible and necessary, and fails to recognize the department's compelling interest in avoiding establishment clause violations."
But in their brief, Alliance for Freedom states that the city policy violates the free exercise clause because it is not neutral on its face and "it singles out 'religious worship services' for exclusion" by favoring "non-theistic religions over theistic religions."
It also violates the establishment clause both by preferring some religious groups over others, the lawyers say, and it "excessively entangles the government with religion" and "inhibits religion."
Gordon told the panel yesterday that 99 congregations now have permits for after-hours use of public schools. In at least 80 of the cases, worship services are held repeatedly.
Gordon was asked by the judges how the Board of Education makes the call when a religious group applies to use the schools.