LEVAL, Circuit Judge:
Defendants, the Board of Education of the New York City Public Schools and Community School District No. 10 (collectively, "the Department of Education" or "the Board"),
The relevant facts are familiar, and are not in dispute. See Bronx Household of Faith v. Bd. of Educ. of the City of New York (Bronx Household III), 492 F.3d 89 (2d Cir.2007). Under New York State law, a local public school district may permit its facilities to be used outside of school hours for purposes such as "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," as long as the uses are "nonexclusive and . . . open to the general public." N.Y. Educ. Code § 414(1)(c). Pursuant to this provision, New York City's Department of Education developed a written policy governing use of school facilities during after-school hours as part of its Standard Operating Procedures Manual. The policy, or SOP, permits outside groups to use school premises for the purposes described in the state law, when the premises are not being used for school programs and activities, but subject to limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property for "religious services or religious instruction."
In 1994, Bronx Household applied to use space in the Anne Cross Mersereau Middle School ("M.S.206B") in the Bronx, New York, for its Sunday morning "church service[s]." Bronx Household of Faith v. Bd. of Educ. of the City of New York, 226 F.Supp.2d 401, 410 (S.D.N.Y.2002) (quoting First Affidavit of Robert Hall). According to Bronx Household's application, its services would include "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies," followed by a "fellowship meal," during which attendees "talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other." Id. The Board denied Bronx Household's application under SOP § 5.9. Bronx Household I, 127 F.3d at 211.
Plaintiffs brought suit, contending that the Board's denial of Bronx Household's application constituted viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. The district court granted the Board's motion for summary judgment, and dismissed the suit. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996) (Preska, J.). We affirmed, concluding that the Department of Education had created a limited public forum by opening school facilities
In 2001, however, the Supreme Court ruled in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), that it was unconstitutional for a public school district in Milford, New York, 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. Id. at 103, 121 S.Ct. 2093. The Milford district's policy, in accordance with New York state law, permitted school facilities to be used for "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community." Id. at 102, 121 S.Ct. 2093 (quoting N.Y. Educ.Code § 414(1)(c)). However, it prohibited use "by any individual or organization for religious purposes," which school district officials interpreted as prohibiting "religious worship" or "religious instruction." Id. at 103-04, 121 S.Ct. 2093. The Supreme Court concluded that the Good News Club was seeking to "address a subject otherwise permitted [in the school], the teaching of morals and character, from a religious standpoint," and, therefore, the school district's denial of the club's application constituted impermissible viewpoint discrimination in the context of a limited public forum. Id. at 109, 121 S.Ct. 2093.
After the Supreme Court's decision in Good News Club, Bronx Household applied again, and its application was again denied. Bronx Household of Faith v. Bd. of Educ. of the City of New York (Bronx Household II), 331 F.3d 342, 346-48 (2d Cir.2003). Plaintiffs brought a new action, and this time the district court, citing Good News Club, preliminarily enjoined the Board from denying the permit. Bronx Household, 226 F.Supp.2d at 427. We affirmed the preliminary injunction, finding that the district court did not abuse its discretion, and acknowledging the "factual parallels between the activities described in Good News Club and the activities at issue in the present litigation." Bronx Household II, 331 F.3d at 354. After the issuance of the preliminary injunction, Bronx Household applied for, and was granted, permission to use P.S. 15 in the Bronx for its Sunday "Christian worship service[s]." Bronx Household III, 492 F.3d at 94, 101 (Calabresi, J., concurring).
Bronx Household thereafter moved for summary judgment to convert the preliminary injunction into a permanent injunction, and the Board cross-moved for summary judgment. During the pendency of the motions for summary judgment, the Board wrote to the district court asking the court to adjudicate the issue under a revised SOP, numbered SOP § 5.11,
On appeal, a majority consisting of Judge Calabresi and me, over dissent by Judge Walker, vacated the permanent injunction, although we were divided as to the rationale for doing so. Bronx Household III, 492 F.3d at 91 (per curiam). Judge Calabresi would have reached the merits and would have ruled that the proposed SOP § 5.11 was a reasonable, viewpoint-neutral, content-based restriction. Id. at 100-06 (Calabresi, J., concurring). I concluded that litigation over the constitutionality of the proposed SOP § 5.11 was unripe for adjudication. Id. at 122-23 (Leval, J., concurring). This was because the proposed rule, although "approved at the highest levels," had not been promulgated by the Board, and Bronx Household had neither applied, nor been refused, under the new standard. Id. at 115, 122 n. 8. Judge Walker wrote in dissent that he would have reached the merits and would have ruled that enforcement of the new SOP was barred by Good News Club, because in his view it constituted impermissible viewpoint discrimination. Id. at 123-24 (Walker, J., dissenting). We remanded the case to the district court for all purposes. Id. at 91 (per curiam).
In July 2007, shortly after our decision remanding the case, the Board adopted the proposed SOP and published it for the first time. Bronx Household applied to use P.S. 15 under the new rule, stating in its application that it planned to use the facilities for "Christian worship services," and the Board denied the application.
The case is now before us for the fourth time.
P.S. 15 is a limited public forum. See Bronx Household III, 492 F.3d at 97-98 (Calabresi, J., concurring); id. at 125 (Walker, J., dissenting); Bronx Household I, 127 F.3d at 211-14. As explained in Judge Calabresi's opinion in Bronx Household III, a category of speakers or expressive activities may be excluded from a limited public forum only on the basis of "reasonable, viewpoint-neutral rules." Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir.2005). Thus, the operator of a limited public forum may engage in "content discrimination, which may be permissible if it preserves the purposes of that limited forum," but may not engage in "viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Christian Legal Soc'y v. Martinez, ___ U.S. ___, 130 S.Ct. 2971, 2984, 177 L.Ed.2d 838 (2010); Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093.
SOP § 5.11, on its face, prohibits use of school facilities for two types of activities. The rule prohibits use of schools for "religious worship services," and prohibits also "otherwise using a school as a house of worship." Bronx Household stated in its application that it sought a permit to use P.S. 15 for "Christian worship services." While the Board did not explain its rejection of the application, it is clear that an application to use the school for "Christian worship services" falls under the words of SOP § 5.11 prohibiting use for "religious worship services." We therefore assume the Board relied, at least in part, on this clause of its rule in rejecting the application. (Accordingly, we need not, and this opinion does not, consider whether the Board could lawfully exclude Bronx Household under the second, less precise, branch of the rule proscribing use of a school "as a house of worship.")
The prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit. The conduct of services is the performance of an event or activity. While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule. Prayer, 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. Indeed SOP § 5.11
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. Under rules consistent with the purposes of the forum, schools may exclude from their facilities all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even though, by participating in and viewing such events, participants and spectators may express their love of them. The basis for the lawful exclusion of such activities is not viewpoint discrimination, but rather the objective of avoiding either harm to persons or property, or liability, or a mess, which those activities may produce. We think it beyond dispute that a school's decision to exclude martial arts matches would be lawful notwithstanding the honest claim of would-be participants that, through participating in the matches, they express their love of the sport and
Similarly, SOP § 5.11 prohibits use of school facilities to conduct worship services, but does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view. While it is true without question that religious worship services include such expressions of points of view, the fact that a reasonably excluded activity includes expressions of viewpoints does not render the exclusion of the activity unconstitutional if adherents are free to use the school facilities for expression of those viewpoints in all ways except through the reasonably excluded activity. Under at least this branch of SOP § 5.11, the schools are freely available for use by groups to express religious devotion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine. It is only the performance of a worship service that is excluded.
Nor is this rule of exclusion vulnerable on the ground that the activity excluded has some similarities to another activity that is allowed. To begin with, we reject the suggestion that because a religious worship service shares some features with activities such as a Boy Scout meeting, no meaningful distinction can be drawn between the two types of activities. See Dissenting Op. 56-57. Boy Scout meetings are not religious worship services. The fact that religion often encompasses concern for standards of conduct in human relations does not mean that all activity which expresses concern for standards of conduct in human relations must be deemed religion.
The argument might be made that, because the rule prohibits use of facilities for "religious worship services," it excludes religious worship services while permitting non-religious worship services. This argument is a canard. The presence of the word "religious" in the phrase is superfluous and does not change the meaning. There is no difference in usage between a "worship service" and a "religious worship service;" both refer to a service of religious worship. See Bronx Household I, 127 F.3d at 221 (Cabranes, J., concurring in part and dissenting in part) ("Unlike religious `instruction,' there is no real secular analogue to religious `services,' such that a ban on religious services might pose a substantial threat of viewpoint discrimination between religion and secularism."). We think, with confidence, that if 100 randomly selected people were polled as to whether they attend "worship services," all of them would understand the questioner to be inquiring whether they attended services of religious worship. While it is true that the word "worship" is occasionally used in nonreligious contexts, such as to describe a miser, who is said to "worship" money, or a fan who "worships" a movie star,
The application of SOP § 5.11 to deny Bronx Household's request to use school facilities for worship services is thus in no way incompatible with the Supreme Court's decisions in Good News Club, Lamb's Chapel, and Rosenberger. In Good News Club, a school district had invoked a policy prohibiting after-hours use of a school for "religious purposes" to deny a Christian organization permission to use space in a school building for "religious instruction" of children aged 6 to 12. 533 U.S. at 103-04, 121 S.Ct. 2093. The Supreme Court ruled that this exclusion violated the Free Speech Clause. Id. at 120, 121 S.Ct. 2093. The denial constituted viewpoint discrimination, rather than content-based restriction, because the school district refused to allow the teaching of moral lessons from a religious perspective, while permitting the teaching of moral lessons from a secular perspective. Id. at 107-08, 121 S.Ct. 2093.
Similarly, in Lamb's Chapel, the Court found unconstitutional a school district's rejection of a church's request to show a Christian film series about child rearing and family values, again on the basis of a policy prohibiting after-hours use of school property "for religious purposes." Lamb's Chapel, 508 U.S. at 387-89, 393, 113 S.Ct. 2141. Like the moral lessons taught in the Good News Club, the film series "dealt with a subject otherwise permissible . . . [but] its exhibition was denied solely because the series dealt with the subject from a religious standpoint." Id. at 394, 113 S.Ct. 2141. And in Rosenberger, the Court concluded that the University of Virginia discriminated on the basis of viewpoint, when, in accordance with its policy, it refused to reimburse the printing expenses of a student newspaper with a Christian editorial perspective because the publication "promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality." Rosenberger, 515 U.S. at 827, 831-32, 115 S.Ct. 2510. Because the University's refusal resulted from the newspaper's "prohibited perspective, not the general subject matter," it violated the Free Speech Clause. Id. at 831, 115 S.Ct. 2510.
In each of those cases, the policy being enforced categorically excluded expressions of religious content. Here, by contrast, there is no restraint on the free expression of any point of view. Expression of all points of view is permitted. The exclusion applies only to the conduct of a certain type of activity—the conduct of worship services—and not to the free expression of religious views associated with it. It is clear that the Board changed its rule in order to conform to the dictates of Good News Club, abandoning the prohibition of "religious instruction" (which involved viewpoint discrimination). Indeed, SOP § 5.11 expressly permits use of school facilities by "religious clubs for students that are sponsored by outside organizations" on the same basis as other clubs for students sponsored by outside organizations.
Accordingly, as SOP § 5.11's prohibition of "religious worship services" does not
We therefore go on to consider whether this exclusion is "reasonable in light of the purpose served by the forum." Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). Precedent, furthermore, calls for giving "appropriate regard" to the Board's judgment as to which activities are compatible with its reasons for opening schools to public use. Christian Legal Soc'y, 130 S.Ct. at 2989. By excluding religious worship services, the Board seeks to steer clear of violating the Establishment Clause. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) ("There is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech."); Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (noting that an interest in avoiding a violation of the Establishment Clause "may be characterized as compelling"). In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause. Marchi v. Bd. of Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d Cir.1999) ("[W]hen government endeavors to police itself and its employees in an effort to avoid transgressing Establishment Clause limits, it must be accorded some leeway, even though the conduct it forbids might not inevitably be determined to violate the Establishment Clause. . . ."); cf. Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (race-based employment action violates Title VII unless the employer has a strong basis to believe it otherwise will be subject to disparate impact liability). We conclude that the Board has a strong basis to believe that allowing the conduct of religious worship services in schools would give rise to a sufficient appearance of endorsement to constitute a violation of the Establishment Clause.
The Supreme Court's decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), provides the framework for evaluating challenges under the Establishment Clause.
The performance of worship services is a core event in organized religion. See Bronx Household, 226 F.Supp.2d at 410 (quoting Pastor Hall describing Bronx Household's Sunday worship service as "the indispensable integration point for our church"); Mark Chaves, Congregations in America 227 (2004) (reporting results of survey finding that 99.3% of religious congregations hold services at least once per week). Religious worship services are conducted according to the rules dictated by the particular religious establishment and are generally performed by an officiant of the church or religion. When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church.
Moreover, the Board's concern that it would be substantially subsidizing churches if it opened schools for religious worship services is reasonable. The Board neither charges rent for use of its space, nor exacts a fee to cover utilities such as electricity, gas, and air conditioning.
Finally, the religious services Bronx Household conducts in the school are not open on uniform terms to the general public. Bronx Household acknowledges that it excludes persons not baptized, as well as persons who have been excommunicated or who advocate the Islamic religion, from full participation in its services. See Bronx Household III, 492 F.3d at 120 (Leval, J., concurring); cf. Christian Legal Soc'y, 130 S.Ct. at 2995 (upholding university's denial of Registered Student Organization status to student group that refused to comply with non-discrimination policy for ideological reasons). The de facto favoritism of the Christian (Sunday service) religions over others, as well as the deliberate exclusion practiced by Bronx Household, aggravates the potential Establishment Clause problems the Board seeks to avoid.
In the end, we think the Board could have reasonably concluded that what the public would see, were the Board not to exclude religious worship services, is public schools, which serve on Sundays as state-sponsored Christian churches. For these reasons, the Board had a strong basis to be wary that permitting religious worship services in schools, and thus effectively allowing schools to be converted into churches on Sunday, would be found to violate the Establishment Clause. To reiterate, we do not say that a violation has occurred, or would occur but for the policy. We do find, however, that it was objectively reasonable for the Board to worry that use of the City's schools for religious worship services, conducted primarily on Sunday when the schools are most available to outside groups, exposes the City to a substantial risk of being found to have violated the Establishment Clause.
This conclusion is not, as the dissent maintains, foreclosed by the Supreme Court's precedents. We recognize that in Good News Club, Widmar, Lamb's Chapel, and Rosenberger, the Supreme Court rejected arguments that the rules in question, and their application to bar or disfavor particular activities, were justified by concern to avoid violating the Establishment Clause. But those rulings were based on their particular facts, which are significantly different from those here. In none of those cases did the Supreme Court suggest that a reasonable concern to avoid violation of the Establishment Clause can never justify a governmental exclusion of a religious practice. In arguing that the Supreme Court's precedents forbid our ruling, the dissent relies on broad statements of principle, often from opinions that did not command a majority of the Court, and contends that, taken together, they show the invalidity of the reasons the Board proffers for fearing an Establishment Clause violation. However, neither the Supreme Court nor this court has considered the constitutionality of a policy that allows the regular use of public schools for religious worship services. Indeed,
In any event, the reasonableness of the Board's concern to avoid creating a perception of endorsement resulting from regular Sunday conversion of schools into Christian churches, together with the absence of viewpoint-based discrimination, distinguishes this case from the Supreme Court's precedents striking down prohibitions of the use of educational facilities or funds by religious groups. All of those cases involved rules or policies which broadly suppressed religious viewpoints and which, in their particular applications, disfavored activities which had far less potential to convey the appearance of official endorsement of religion. In Widmar, the challenged policy prohibited the use of university facilities for religious worship or even discussion. In Rosenberger, the challenged policy prohibited the reimbursement of expenses incurred by university student groups for activities that "primarily promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality." 515 U.S. at 825, 115 S.Ct. 2510. And in Lamb's Chapel and Good News Club, the challenged policies prohibited the use of school district property for any and all "religious purposes." See Good News Club, 533 U.S. at 103, 121 S.Ct. 2093; Lamb's Chapel, 508 U.S. at 387, 113 S.Ct. 2141. In each case, the policy being enforced, unlike SOP § 5.11, was broadly categorical in its exclusion of religious content. In addition, the activities disallowed or disfavored under those policies—meetings of Christian clubs for students (in Widmar and Good News Club), the publication of a newspaper with a Christian editorial viewpoint (in Rosenberger), and the showing of a Christian film series (in Lamb's Chapel)—were much less likely than the conduct of Sunday worship services to evoke an appearance of endorsement of religion by public school authorities. In determining that there was no danger of an Establishment Clause violation in these cases, the Supreme Court relied on the fact that facilities and funds were available to and used by numerous and diverse private groups. See Lamb's Chapel, 508 U.S. at 395, 113 S.Ct. 2141 (observing that school district's property "had repeatedly been used by a wide variety of private organizations"); Rosenberger, 515 U.S. at 842, 115 S.Ct. 2510 (student activity funds were distributed to "a wide spectrum of student groups"); Widmar, 454 U.S. at 277, 102 S.Ct. 269 (university provided benefits to "over 100 student groups of all types"); Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 (district "made its forum available to other organizations"). In finding insufficient risk of the perception of endorsement, the Court observed in Widmar that university students are "young adults," who are "less impressionable than younger students" and can therefore appreciate that a policy permitting religious student groups to use meeting space on the same basis as other types of student groups was neutral toward religion. 454 U.S. at 275-75 & n. 14, 102 S.Ct. 269. And in Lamb's Chapel and Good News Club, the Court found it significant that the proposed film exhibition and club meetings would be open to the public, not just to the members of the Christian groups sponsoring the events. See Good News Club, 533 U.S. at 113, 121 S.Ct. 2093; Lamb's Chapel, 508 U.S. at 395, 113 S.Ct. 2141.
The use of P.S. 15 and other schools for Sunday worship services is more likely to promote a perception of endorsement than
Furthermore, the Board's prohibition on the use of school facilities for "religious worship services" is far less broad than the exclusions of use for "religious purposes" or "religious discussion" in the earlier cases, which included in their sweep activities that are similar to secular activities. The broad scope of the exclusions considered in the other cases resulted in viewpoint discrimination, rather than mere content restriction. The exclusions also disfavored more religious activity than necessary to avoid an actual Establishment Clause violation. In contrast, the "religious worship services" clause of SOP § 5.11 is narrowly drawn to exclude a core activity in the establishment of religion— worship services—and thereby avoid the perceived transformation of school buildings into churches.
It is not our contention that the Supreme Court's precedents compel our conclusion. On the other hand, we cannot accept Judge Walker's contention that the Court has effectively decided this case. This case is terra incognita. The Supreme Court's precedents provide no secure guidelines as to how it should be decided. The main lesson that can be derived from them is that they do not supply an answer to the case before us. Precedent provides no way of guessing how the Supreme Court will rule when it comes to consider facts comparable to these. By hunting and pecking through the dicta of various opinions, one can find snippets that arguably support a prediction either way. Judge Calabresi and I believe that the Board's exclusion of Bronx Household's conduct of worship services is viewpoint-neutral and justified by the Board's reasonable concern that permitting use of school facilities for worship services would violate the Establishment Clause.
Bronx Household contends that SOP § 5.11 is not a measure reasonably designed to avoid an Establishment Clause violation but is instead itself a violation of that clause. Bronx Household argues that SOP § 5.11 fails the Lemon test because it sends a message of official hostility to religion and because its enforcement fosters excessive government entanglement with religion. We are not persuaded.
As emphasized above, SOP § 5.11 prohibits worship services in schools, but permits the expression of religious points of view through activities such as prayer, singing of hymns, preaching, and teaching or discussion of doctrine or scripture. Given the broad range of expressive religious activity that the policy does allow, we do not think a reasonable observer would
Bronx Household also argues that SOP § 5.11 not only conveys the appearance of official hostility, but is in fact motivated by such hostility. We find no basis for this contention. Of course, "government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. However, we do not understand why Bronx Household attributes the Board's position to hostility rather than a good faith desire to navigate successfully through the poorly marked, and rapidly changing, channel between the Scylla of viewpoint discrimination and the Charybdis of violation of the Establishment Clause.
The Board has by no means been alone in the belief that the Establishment Clause requires governmental educational institutions to be cautious of harboring or sponsoring religious activities. The Supreme Court's rulings in Rosenberger, Lamb's Chapel, and Good News Club deviated from a previously widespread governmental and judicial perception of the scope of the Establishment Clause's prohibitions. In each of those three cases, the school administrators and the lower court judges believed that the challenged policies, which were intended to keep religion at a distance from public institutions, were mandated by the Establishment Clause, or at least consistent with the Constitution. And in two of the cases, a number of Supreme Court justices did as well.
There is no better reason to believe, as Bronx Household suggests, that the Board was motivated by hostility toward religion than there is to believe that such hostility has motivated other school authorities throughout the country, the lower court judges and dissenting Supreme Court justices in Lamb's Chapel, Rosenberger, and Good News Club, or Judge Calabresi and me. We see no sound basis for concluding that the Board's actions have been motivated by anything other than a desire to find the proper balance between two clauses of the First Amendment, the interpretation of which by the Supreme Court has been in flux and uncertain.
Bronx Household also argues that SOP § 5.11 cannot be applied without unconstitutionally entangling the Board in matters of religious doctrine. See Agostini v. Felton, 521 U.S. 203, 232-33, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). According to Bronx Household, any attempt by the Board to distinguish between religious activity that falls under the exclusion of "worship services," and religious activity that does not, necessarily places the Board in violation of the duty imposed by Lemon to avoid "excessive government entanglement with religion." 403 U.S. at 613, 91 S.Ct. 2105.
This argument, furthermore, overlooks the nature of the duties placed on government officials by the Establishment Clause (as well as the Free Exercise of Religion Clause). As we outlined above, while other clauses of the First Amendment prohibit government officials from discriminating on the basis of religious viewpoint, the Establishment Clause prohibits them from taking action that would constitute establishment of religion. In various circumstances, especially when dealing with initiatives for the conduct of undoubtedly religious exercises on public property, government officials cannot discharge their constitutional obligations without close examination of the particular conduct to determine if it is properly deemed to be religious and if so whether allowing it would constitute a prohibited establishment of religion. Bronx Household's argument, if valid, would effectively nullify the Establishment Clause.
Without doubt there are circumstances where a government official's involvement in matters of religious doctrine constitutes excessive government entanglement. See, e.g., Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 427 (2d Cir. 2002). But it does not follow, as Bronx Household seems to argue, that the mere act of inspection of religious conduct is an excessive entanglement. The Constitution, far from forbidding government examination of assertedly religious conduct, at times compels government officials to undertake such inquiry in order to draw necessary distinctions.
Judge Walker's dissenting opinion criticizes our ruling on a number of grounds. We believe his criticisms are not well founded.
1) Judge Walker's primary argument is that, because SOP § 5.11's exclusion of religious worship services depends on their religious nature, which we do not dispute, it necessarily discriminates illegally on the basis of viewpoint. See Dissenting Op. 56-57 ("The Board cannot lawfully exclude the conduct of an event based solely on the religious viewpoints expressed during the event."). He concludes that there is "no doubt that it is `religious services' and `worship' that the Board is targeting for exclusion" because "[t]he Board is otherwise unconcerned with comparable ceremonial speech occurring on school premises." Dissenting Op. 56. According to his analysis, the governing test should be "whether Bronx Household is engaging in speech that fulfills the purposes of the forum and is consistent with non-religious speech occurring on school premises." Dissenting Op. 56. If Bronx Household is engaging in such speech and is excluded because of the religious nature of its activity, the exclusion is necessarily illegal viewpoint discrimination.
The problem we find with Judge Walker's analysis is that it either ignores the crucial role of the Establishment Clause in motivating the Board's decision or it simply reads that clause out of the Constitution. The general effect of the Establishment Clause is to prohibit government from taking actions which have the effect of establishing religion. Assuming that the Establishment Clause has some meaning—that is to say, assuming there are some forms of activity which government may not conduct (or may not permit) by reason of the Establishment Clause—any such prohibitions necessarily depend on the religious nature of the particular activity. If the activity is not of religious nature, it does not fall within the purview of the Establishment Clause.
This feature is evident throughout the Supreme Court's Establishment Clause jurisprudence. In Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), for example, the Supreme Court held that the Establishment Clause prohibited a public high school from including the recitation of a prayer in its graduation ceremony. The prayer was unquestionably an expressive act, and the prohibition by the Court under the Establishment Clause unquestionably depended on the religious nature of prayer. Had the school administration sought to include instead of a prayer a non-religious affirmation of patriotism, or of love of learning, that would not have been prohibited by the Establishment Clause.
In County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), the Court held that the Establishment Clause prohibited the display of a crèche in the Grand Staircase of the Allegheny County Courthouse, but upheld against Establishment Clause challenge another display which included an 18-foot menorah, a 45-foot Christmas tree, and a sign declaring devotion to liberty. Both displays conveyed an expressive message. What distinguished them was the fact that the crèche "sent an unmistakable message that [the county] supports and promotes the Christian praise to God," id. at 600, 109 S.Ct. 3086, while the menorah, tree, and sign celebrated the holiday season on a non-sectarian basis, id. at 617-18, 109 S.Ct. 3086.
In light of such decisions, Judge Walker's view of the question seems to us not compatible with the Establishment Clause. Inevitably, whatever expressive conduct is prohibited by the Establishment Clause is prohibited by reason of its religious nature and would not be prohibited if what it expressed were not related to religion.
We do not suggest for a moment that any and all expressive activity with religious content must be excluded from government property or from government-controlled enterprise, such as the administration of a school system. The Supreme Court has unquestionably ruled otherwise in Rosenberger, Good News Club, and other cases. Our point is only that the test cannot be as Judge Walker views it. The mere fact that government does not permit an expressive activity, which it would permit if the activity were not religious, does not compel the conclusion that it is engaging in unconstitutional viewpoint discrimination. Whatever forms of governmental action are prohibited by the Establishment Clause are prohibited in part because of their religious nature and would not be prohibited if they were not religious.
Where government excludes a category of activity involving religious expression out of concern for the limitations imposed on government by the Establishment Clause, the lawfulness of the exclusion (notwithstanding that the religious content motivates the exclusion) will turn on whether allowing the activity would either violate the Establishment Clause or place the government entity at a reasonably perceived risk of violating the Establishment Clause. The Supreme Court has never ruled on whether permitting the regular conduct of religious worship services in public schools constitutes a violation of the Establishment Clause, and we reach no conclusion on that question. As discussed above, considering all the circumstances, we think the risk that permitting the regular conduct of worship services in public schools would violate the Establishment Clause is sufficiently high to justify the Board's adoption of a content restriction that prohibits the performance of such services but does not otherwise limit the expression of religious viewpoints.
2) Judge Walker maintains that our ruling approves the exclusion of the very sort of conduct that the Supreme Court ruled in Good News Club could not be excluded. Dissenting Op. 56. We respectfully disagree. The application of the Good News Club, which the school district denied, was for a Christian group to hold after-school meetings for children between the ages of six and twelve, where they would have "a fun time of singing songs, hearing a Bible
Id.
Without doubt there is some overlap between Bronx Household's conduct of Christian worship services and the children's club meetings that were the subject of Good News Club, in that worship services generally include song, prayer, and scripture. Nonetheless, we doubt that objective observers employing ordinary understandings of the English language would describe Ms. Fournier's club meetings as worship services. Judge Walker seeks to discern the meaning of the Supreme Court's majority opinion from the emphatic objections to it expressed in Justice Souter's dissenting opinion. He bases his assertion that the activities of the Good News Club were "religious worship services" on Justice Souter's dissenting statement that what the majority allowed into a public school was in effect "an evangelical service of worship." 533 U.S. at 138, 121 S.Ct. 2093. It is axiomatic that a dissenting opinion is generally the least reliable place to look to discern the meaning of a majority opinion. Dissenters commonly exaggerate what they see as inevitable, appalling consequences of the majority's ruling, a phenomenon which led Judge Friendly to observe that dissenting opinions are "rarely a safe guide to the holding of the majority." United States v. Gorman, 355 F.2d 151, 155 (2d Cir.1965). Regardless of whether the dissenting justices believed the activities of the Good News Club were equivalent to "an evangelical service of worship," there is no indication that the majority shared that view. Indeed, rejecting the argument advanced by the school district in Good News Club "that the Club's activities constitute `religious worship,'" the majority expressly noted that the court below had "made no such determination," emphasizing that it was not addressing what ruling it would make if the excluded activity were religious worship. Id. at 112 n. 4, 121 S.Ct. 2093.
We do not mean to imply that we think the Supreme Court somehow indicated in Good News Club that it would rule as we do on the exclusion of worship services. Our point is only that the Supreme Court has neither ruled on the question, nor even given any reliable indication of how it would rule.
3) Judge Walker argues that we err to the extent that we rely on the heavy predominance of the use of schools for Christian worship services (as opposed to services of other religions) because of the greater availability of the schools on the Christian day of worship. He argues that the greater availability of schools for use by Christian organizations is of no constitutional concern, because "[a]n Establishment Clause violation does not result from either private choice or happenstance." Dissenting Op. 62.
The greater availability of schools for use on the Christian day of worship is certainly not "happenstance." From the first, schools throughout the United States were closed on Sundays precisely because Sunday is the Christian day of worship— the day when schoolchildren were expected
In rejecting a multitude of Judge Walker's arguments, we do not imply that his conclusion (as to the constitutional invalidity of the religious worship services branch of SOP § 5.11) is frivolous or even necessarily wrong. The Supreme Court's rulings have laid down no principles that compel a decision one way or the other on these facts. Nor has the Supreme Court given any reliable indication of how it will rule if and when it confronts these facts. As Judge Calabresi and I view the facts, the use of New York City public schools for religious worship services—with a heavy predominance of Christian worship services because school buildings are most available for non-school use on Sundays— would create a very substantial appearance of governmental endorsement of religion and give the Board a strong basis to fear that permitting such use would violate the Establishment Clause. Because the "religious worship services" clause of SOP §5.11 is a content restriction that excludes only a type of activity, does so for a reason that is either constitutionally mandated or at least constitutionally reasonable, and does not otherwise curtail free expression of religious viewpoints, we conclude that the restriction does not violate the Constitution.
For the foregoing reasons, the judgment of the district court is REVERSED, and the injunction barring enforcement of SOP § 5.11 against Bronx Household is VACATED.
CALABRESI, Circuit Judge, concurring:
I join Judge Leval's opinion in full because it states a correct alternative ground upon which to decide this case. But I write separately to emphasize that I continue to adhere to the position I took in my earlier opinion in this case, that worship is sui generis. See Bronx Household III, 492 F.3d at 100 (Calabresi, J., concurring). And I especially wish to reaffirm my view there stated:
Id. at 103. Worship is something entirely different. See id.; see also Bronx Household I, 127 F.3d at 221 (Cabranes, J., concurring in part and dissenting in part) ("Unlike religious `instruction,' there is no real secular analogue to religious `services,' such that a ban on religious services might pose a substantial threat of viewpoint discrimination between religion and secularism."). State rules excluding all "worship" from a limited public forum, therefore, are based on content, not viewpoint.
In the context of the rule before us, there is one particular problem: the rule seems to prohibit religious worship. See SOP § 5.11 ("No permit shall be granted for the purpose of holding religious worship services...."). And if it be the case that non-religious worship also exists,
We also do not need to be concerned with whether in some other case it might be hard to say whether what the Appellees wish to do is to use the school as "a house of worship." Nor need we worry that, in attempting to answer that question, we (or the Appellants) might become unconstitutionally "entangle[d] with religion," Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). For Appellees admitted in their permit request, see J.A. at 3586, and in their briefs before this court, see Appellees' Br. at 1, that they seek to use school facilities for "worship." When a group tells the government that what it wishes to do is "worship," the government is entitled to take the group at its word. See Bronx Household I, 127 F.3d at 221-22 (Cabranes, J., concurring in part and dissenting in part) ("There may be cases in which the parties dispute whether or not a proposed activity for which permission to use school premises is denied actually constitutes religious instruction or worship.... However, this issue does not arise in the instant case, as the parties have stipulated that plaintiff seeks to use a school gymnasium for `religious worship services.'"). That is all the Appellants did when they enforced SOP § 5.11,
JOHN M. WALKER, JR., Circuit Judge, dissenting:
The Board's Standard Operating Procedure ("SOP") § 5.11 withholds otherwise broadly available school-use permits from religious groups seeking to use school facilities during non-school hours "for the purpose of holding religious worship services, or otherwise using a school as a house of worship." Without addressing the "house of worship" ban, the majority concludes that the ban on "religious worship services" does not offend the First Amendment's Free Speech Clause because
When this panel split in 2007, Judge Calabresi indicated that he would uphold SOP § 5.11 as a reasonable content-based restriction on the unique subject of "worship," Judge Leval expressed no opinion on the merits of the case due to ripeness concerns, and I indicated that I would strike down the application of SOP § 5.11 as unconstitutional viewpoint discrimination. See generally Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 100-106 (Calabresi, J.), 110-123 (Leval, J.), and 123-32 (Walker, J.) (2d Cir.2007). At that time, I compared the purpose of Bronx Household's proposed use of school property with the purposes for which the Board opened its limited forum to the public under SOP § 5.6.2, and, after inquiring searchingly of the government's motives, concluded that the Board had engaged in impermissible viewpoint discrimination by rejecting permit applicants under SOP § 5.11. Id. at 123-25. In response to Judge Calabresi's willingness to uphold the Board's prohibition on religious worship, I countered that Judge Calabresi had not engaged in any real analysis of the purpose of Bronx Household's proposed expressive activity in light of the purposes of the forum and in comparison to the purposes of the activities the Board had allowed, pointing out that he had erred by simply comparing the speech already permitted on school premises with "worship," which he declared to be sui generis and thus readily excludable from the forum. See id. at 127-130; cf. Op. of J. Calabresi at 51.
Now, in this latest iteration of what is effectively the same facial challenge to the Board's exclusions under SOP § 5.11, the majority opinion breaks with Judge Calabresi's earlier analysis that "worship" is a separate category of speech that is readily excludable from the Board's expansive community use policy, declining even to consider either the second part of SOP § 5.11 (which prohibits "using a school as a house of worship") or whether "worship" may be lawfully excluded from the forum. Compare Maj. Op. at 36 & 36 n. 6 (expressly avoiding a decision on "worship"), with Op. of J. Calabresi at 37 (readily excluding "worship").
As the majority recognizes, the Board has created a limited public forum by opening its schools for "uses pertaining to the welfare of the community." SOP § 5.6.2. When the state creates such a forum, it "is not required to and does not allow persons to engage in every type of speech." Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The government may, for example, reserve the limited public forum "for the discussion of certain topics." Id. (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)). Any restrictions on speech in a limited public forum must, however, be both viewpoint neutral and "reasonable in light of the purpose served by the forum." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). SOP § 5.11 is neither.
Here, the Board opened its schools to the public for purposes of "maximiz[ing] educational, cultural, artistic and recreational opportunities for children and parents," Cahill. Decl. ¶ 13, "assist[ing] in ... development generally," id., "expand[ing] enrichment opportunities for children," Farina Decl. ¶ 9, and "enhanc[ing] community support for the schools," id. The parties agree, and the majority does not contest, that Bronx Household's intended use of P.S. 15 for "Christian worship services"—which include prayer, the reading and singing of psalms, Bible lessons, personal testimony, communion, preaching, fellowship, and conversation—falls within the purposes of the forum. See, e.g., Transcript of Oral Argument, 10/6/2009 ("Tr."), at 10:7-8, 21:20-21, & 22:20-22 (each statement conceding that Bronx Household's intended use advances the forum's purposes). The majority nevertheless finds that the restriction on religious services is content discrimination that is reasonable in light of the purposes of the limited public forum. I disagree and conclude that the Board's discrimination against Bronx Household is based on its religious viewpoint.
The Supreme Court has consistently held that the exclusion of private speakers from open fora or limited public fora on the basis of their religious message constitutes viewpoint discrimination. In Widmar v. Vincent, for example, the Supreme Court reaffirmed that "religious worship and discussion" are "forms of speech and association protected by the First Amendment." 454 U.S. 263, 269, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). On this basis, the Court rejected a university's attempt to prevent a student organization from using an open forum to hold meetings, similar to those at issue here, that included "prayer, hymns, Bible commentary, and discussion of religious views and experiences." Id. at 265 n. 2, 102 S.Ct. 269. Significantly, the Court rejected a distinction between protected religious speech and "a new class of religious speech act[s] constituting worship." Id. at 269 n. 6, 102 S.Ct. 269 (alteration in original) (citation and internal quotation marks omitted). The Court explained that this proposed distinction lacked "intelligible content" and would not "lie within the judicial competence to administer." Id.
The Supreme Court first addressed private religious speech in a limited public forum in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384,
More recently, in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), the Supreme Court applied its holdings in Lamb's Chapel and Rosenberger to activities that could be labeled "worship." Milford had created a limited public forum that, like SOP § 5.6.2 here, opened its school for purposes "pertaining to the welfare of the community." Good News Club, 533 U.S. at 102, 121 S.Ct. 2093. The Good News Club, a private Christian organization, sought to use this forum for weekly meetings, at which participants would "sing[ ] songs, hear[ ] a Bible lesson and memoriz[e] scripture." 533 U.S. at 103, 121 S.Ct. 2093. In finding Milford's exclusion of these meetings unconstitutional, the Court explained that "something that is `quintessentially religious' or `decidedly religious in nature' can[ ] also be characterized properly as the teaching of morals and character development from a particular viewpoint." Id. at 111, 121 S.Ct. 2093. While declining to challenge Justice Souter's characterization of the Club's activities as "an evangelical service of worship," the Court wrote that "what matters is the substance of the Club's activities," which the Court found to be "materially indistinguishable from the activities in Lamb's Chapel and Rosenberger." Id. at 112 n. 4, 121 S.Ct. 2093. Because non-religious groups were permitted to teach morals and character development from a secular viewpoint, excluding the Good News Club's efforts to do the same from a religion viewpoint was impermissible.
The majority argues in this case that the Board has not discriminated on the basis of viewpoint and tries to distinguish these prior Supreme Court decisions by focusing narrowly on the Board's exclusion of "religious worship services." The Board, however, has not differentiated these services from religious worship or the practice of religion. Indeed, how could it do so? Nor has the Board offered a definition of religious worship services. Rather, the majority offers its own self-styled definition of "religious worship services," without reference to the record or briefs, as "the conduct of a particular type of event: a collective activity characteristically
The core of the majority's argument is that by prohibiting "religious worship services," the Board has only prohibited "the conduct of an event or activity that includes expression of a point of view," rather than "excluding the expression of that point of view." Maj. Op. at 37. The majority's attempt to differentiate between the conduct of an event, here labeled "services," and the protected viewpoints expressed during the event is futile because the conduct of "services" is the protected expressive activity of the sort recognized in Good News Club and, earlier, in Widmar. The majority turns its back on the Supreme Court's holding in Good News Club that it is viewpoint discrimination for a school to exclude what is effectively "an evangelical service of worship" from a limited public forum that in every material respect is identical to the forum that the Board established in this case. Compare Good News Club, 533 U.S. at 112 n. 4, 121 S.Ct. 2093, with id. at 137-38, 121 S.Ct. 2093 (Souter, J., dissenting). The Board cannot lawfully exclude the conduct of an event based solely on the religious viewpoints expressed during the event.
Indeed, in rejecting the claim that religious worship is not protected speech in Widmar, Justice Powell explained that a carve-out of worship from protected religious speech does not have intelligible content and likely would not "lie within the judicial competence to administer." 454 U.S. at 269 n. 6, 102 S.Ct. 269. The carve-out, Justice Powell wrote, also lacks "relevance" because there is "no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious
Fixing upon the label "services" for the program of worship at issue here as a carve-out from protected speech—as opposed to other characterizations such as "meeting," "gathering," "prayer group," or "time of worship"—does nothing to resolve the underlying carve-out problems identified by Justice Powell in Widmar. The same concerns—lack of intelligible content, judicial manageability, and relevance—persist. While the majority tries to address these concerns through its own definition of services, the concerns raised in Widmar adhere in the application of the majority's definition. It is as difficult for a court to ascertain when it is dealing with "services" as with "worship" generally and to manage any such distinction. And ultimately, any distinction between "services" and protected religious speech is irrelevant because, regardless of labels, "what matters is the substance of the [group's] activities." Good News Club, 533 U.S. at 112 n. 4, 121 S.Ct. 2093.
Moreover, that SOP § 5.11 exclusively targets religious viewpoints is evident from the fact that, as in Good News Club, only "religious" services are shut out of the forum. No similar restriction is placed on secular gatherings that are materially indistinguishable from Bronx Household's use of P.S. 15. While the Board denies Bronx Household a space to celebrate its ideals, it permits other outside organizations, such as the Legionnaire Greys Program and the Boy Scouts, to meet on school premises to further their secular ideals of "military leadership," or "character building, citizenship, and personal and physical fitness." The Board permits these secular uses despite the fact that these groups also meet according to a prescribed order of conduct that they consider integral to the accomplishment of their goals. See, e.g., 1st Aff. of David Laguer, at ¶¶ 3, 4, & 6 (describing Legionnaire Greys Program meetings as "structured and ordered," each consisting of, inter alia, a ceremonial flag presentation, trumpets playing the national anthem, flag salutes, unit lessons, leadership training, and character building); Aff. of Jeffrey G. Fanara, at ¶¶ 5, 6, & 8 (describing Boy Scout troop meetings as consisting of a "pre-opening, a half-hour gathering period, ... a formal opening ceremony ... with a flag ceremony and [ ] a recitation of the Pledge of Allegiance and the Scout Oath or Law," and a "closing ceremony" that "includes a motivational message ... based on Scouting's values"). There can be little doubt that the Board would similarly allow the use of its facilities by fraternal organizations, such as the Elks or the Freemasons, with comparable missions and ceremonies.
Just as each of these groups meets to address and discuss universal concerns while advancing its organizational mission, so too does Bronx Household's "Sunday morning meeting [act as] the indispensable integration point for [the group]. It provides the theological framework to engage in activities that benefit the welfare of the community." First Aff. of Robert Hall ("1st Hall Aff."), at ¶ 7. Further, it is during Bronx Household's gatherings that participants are taught "to love their neighbors as themselves, to defend the weak and disenfranchised, and to help the poor regardless of their particular beliefs. It is a venue where people ... come to talk about their particular problems and needs."
The majority also relies on a number of hypothetical activities to argue that the Board could deny a permit application in order to avoid "either harm to persons or property, or liability, or a mess, which those activities may produce." Maj. Op. at 37. Irrespective of the Board's power to deny permits for such hypothetical uses out of a concern for safety, sanitation, and non-interference with other uses of the schools, see Capitol Square Review & Adv. Bd. v. Pinette, 515 U.S. 753, 758, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995), none of these concerns has ever been present in this case. Strikingly, while quick to proffer these hypothetical uses, the majority never comes to grips with the significant fact that the Board allows most outside organizations to access its facilities for uses that "pertain[ ] to the welfare of the community" and "promot[e] [children's] development generally," so long, of course, as those organizations' activities do not amount to religious worship services or transform the school into a "house of worship." Despite the majority's arguments to the contrary, it is readily apparent that the Board singles out religious worship for disfavored treatment. The majority's argument that SOP § 5.11 is nothing more than a content-based restriction on a specific type of activity, albeit a religious one, plainly fails.
Thus, whether the Board's actions under SOP § 5.11 are properly characterized as the exclusion of worship, the exclusion of "religious worship services," or the exclusion of "the conduct of an event or activity that includes expression of a [religious] point of view," Maj. Op. at 37, the Board has discriminated against Bronx Household on the basis of religious viewpoint. The group's proposed use of P.S. 15 fits plainly within the purpose of the limited public forum created under SOP § 5.6.2; is not incompatible with any time, place, and manner restrictions imposed by the Board; and has been denied solely because Bronx Household wishes to address otherwise permissible subjects from a religious viewpoint through its conduct of religious "worship services."
After concluding that SOP § 5.11 is content discrimination, the majority next considers the reasonableness of SOP § 5.11. However, it does so not in light of the forum's stated purposes, but rather in light of the Board's stated concern that allowing the conduct of "religious worship services" in schools would give rise to a sufficient appearance of endorsement to constitute a violation of the Establishment Clause. See Maj. Op. at 39-40. Unlike my colleagues in the majority and the Board, I am not prepared to shut out constitutionally-protected speech from a neutral forum on the sole basis that it is "quintessentially religious." Good News Club, 533 U.S. at 111, 121 S.Ct. 2093. I would hold that the actions of Bronx Household, a private party, cannot transform the government's neutral action into an Establishment Clause violation. The Board's fear of being perceived as establishing a religion is therefore not reasonable, if the exclusion is viewed (erroneously) as content discrimination, much less sufficiently compelling to justify the viewpoint discrimination that I believe is occurring.
Just like the defendants in Widmar, the Board and the majority "misconceive[ ] the nature of the case." 454 U.S. at 273, 102 S.Ct. 269. The Board has not created a forum open only to religious speech. Rather, "it has opened its facilities for use by [the community], and the question is whether it can now exclude groups because of the content of their speech." Id. In fact, the Supreme Court has "[m]ore than once ... rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design." Rosenberger, 515 U.S. at 839, 115 S.Ct. 2510 (citing Lamb's Chapel, 508 U.S. at 393-94, 113 S.Ct. 2141; Bd. of Educ. of Westside Cmty. Sch. (Dist.66) v. Mergens, 496 U.S. 226, 248, 252, 110 S.Ct. 2356, 110 L.Ed.2d 191
The Board and the majority invoke Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to demonstrate that SOP § 5.11 is reasonable, but they misapply the Lemon test, thereby reaching several conclusions that directly contradict controlling Supreme Court precedent. In particular, the majority offers five bases for concluding that SOP § 5.11 is reasonably based on the Board's supposed concern that granting Bronx Household a permit for "Christian worship services" might have the "principal or primary effect" of endorsing religion, see id. at 612, 91 S.Ct. 2105, thereby violating the Establishment Clause.
The relevant question to be asked is not whether any person might mistakenly perceive the Board as conveying a message of endorsement or disapproval; rather, the endorsement test asks whether "an objective observer, acquainted with the text, legislative history, and implementation of the [challenged law or policy], would perceive it as a state endorsement of [organized religion] in public schools." Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (emphasis added) (quoting Wallace v. Jaffree, 472 U.S. 38, 73, 76, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring)). Thus, the majority confuses its analysis when it emphasizes the private speaker's conduct, rather than the government's role, in establishing religion. The fact that a community member might witness an outside organization using a school during non-school hours to further its religious cause does not in itself raise a legitimate concern that the government has acted in contravention of the Establishment Clause. See Capitol Square, 515 U.S. at 767, 115 S.Ct. 2440 (Scalia, J., for the plurality) ("By its terms th[e] [Establishment] Clause applies only to the words and acts of government. It was never meant, and has never been read by this Court, to
For these reasons, the majority's focus on the "religious nature" of the speech, without regard to the nature of the speaker, is misplaced. The majority cites McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), as foundational to its Establishment Clause analysis, and of course they would be highly relevant to this case were we dealing with religious speech by the government. In McCreary and County of Allegheny, the government's placement of the Ten Commandments and a nativity creche, respectively, in county courthouses violated the Establishment Clause, as did the government in Lee v. Weisman when a school official invited a rabbi to give an invocation and benediction at a middle-school commencement exercise. In the case before us, however, the most the government has done is to open up a neutral public forum limited by its laudable educational and community-building purposes. Unlike in these three cited cases, it has neither promoted nor endorsed a religious message.
Also, "a significant factor in upholding government programs in the face of Establishment Clause attack is their neutrality towards religion." Good News Club, 533 U.S. at 114, 121 S.Ct. 2093 (quoting Rosenberger, 515 U.S. at 839, 115 S.Ct. 2510). Indeed, the Free Speech Clause's requirement of viewpoint neutrality by the government in opening a forum tends to undermine, if not preclude, a finding of school sponsorship in the Establishment Clause context. See Good News Club, 533 U.S. at 114, 121 S.Ct. 2093 ("Because allowing the Club to speak on school grounds would ensure neutrality, not threaten it, [the school district] faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Good News Club.").
In any event, even if a private actor's conduct could somehow transform a neutral forum into a state endorsement of religion, Bronx Household's services would not do so here. Just as in Lamb's Chapel and Good News Club, Bronx Household's use of P.S. 15 takes place during non-school hours (actually on a day when there is no school), lacks school sponsorship, occurs in a forum otherwise available for a wide variety of uses, and is open to the public. See 1st Hall Dep. at 30 ("Worship services are always open to the public."); 1st Hall Aff., ¶ 5 ("Our Sunday morning meetings are open to all members of the public. The meetings are not closed to a
The majority argues at some length that permitting weekly worship services at P.S. 15 transforms the school into a church. See, e.g., Maj. Op. at 41 ("When worship services are performed in a place, ... [t]he place has, at least for a time, become the church."). The majority then equates permitting worship services to "subsidizing churches" and "allowing schools to be converted into churches." Maj. Op. at 41. The "church" reference appears no less than twelve times in the majority opinion. Such an argument—that somehow a neutral forum is physically (or perhaps metaphysically) transformed into a non-neutral forum by the private activity undertaken there—has the feel of rhetoric. The same claim could have been made in Widmar and Good News Club, in which decidedly church-related activities were permitted to occur on a regular basis. Bronx Household's services do not convert P.S. 15 into a church any more than the Boy Scout meetings convert it into a Boy Scout lodge.
The majority also errs in relying on the fact that some outside religious organizations may more easily obtain school-use permits because they worship on Sundays, not Fridays and Saturdays. See Maj. Op. at 42-43. An Establishment Clause violation does not result from either private choice or happenstance. See Zelman v. Simmons-Harris, 536 U.S. 639, 652, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); Good News Club, 533 U.S. at 119 n. 9, 121 S.Ct. 2093; Harris v. McRae, 448 U.S. 297, 319, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) ("[I]t does not follow that a statute violates the Establishment Clause because it happens to coincide or harmonize with the tenets of some or all religions." (internal quotation marks omitted)). Moreover, that an increasing number of Christian groups have sought Sunday-use permits under SOP § 5.6.2 does not equate to permit unavailability for other religious groups. Indeed, while the majority states that "Jews and Muslims generally cannot use school facilities for their services because the facilities are often unavailable on the days that their religions principally prescribe for services," Maj. Op. at 43, the record is clear
Supreme Court caselaw also refutes the Board's argument that granting Bronx Household Sunday access to P.S. 15 constitutes direct aid to religion because it allows Bronx Household to bypass the expensive New York City real estate market that might otherwise preclude it from establishing a congregation. Cf. Maj. Op. at 41. The Board's argument runs afoul of Rosenberger:
515 U.S. at 842-43, 115 S.Ct. 2510 (emphasis added). Even Justice Souter, who dissented in Rosenberger, agreed that the government does not provide impermissible direct aid to religion each time a nongovernment speaker utilizes a limited public forum for private religious speech. See id. at 888, 115 S.Ct. 2510 (Souter, J., dissenting). Thus, established Supreme Court precedent effectively forecloses the argument that permitting Bronx Household
In sum, while the majority argues that allowing Bronx Household weekly use of P.S. 15 for "religious worship services" would force the Board to render direct aid to religion, convey a message that the Board endorses religion over non-religion, and exhibit a preference for certain religious denominations over others, these arguments are without merit. Rather, the neutrality of the forum is preserved when religious speech, like non-religious speech, is allowed. Accordingly, if Lemon v. Kurtzman is to apply,
I have no doubt that this case stirs deep feelings and carries implications far broader than the Board's exclusion of Bronx Household's "Christian worship services" under SOP § 5.11. This case also presents important doctrinal considerations worthy of the Supreme Court's attention. In the meantime, however, as a result of the majority's decision that "religious worship services" can be barred from the neutral limited public forum the Board created under SOP § 5.6.2, numerous religious groups that provide recognized benefits to the people and their communities, consistent with the forum's purposes, will be denied access to otherwise available school space simply because their private speech is intertwined with their standard devotional practices and deeply-held religious beliefs. Others will be chilled. Because SOP § 5.11's ban on religious worship services
Bronx Household I, 127 F.3d at 210.
Judges Walker and Calabresi have authorized me to say that upon reconsideration of the circumstances that obtained when the case was last before us, they are now far less confident that the case was in fact ripe for adjudication at that time. Now that the new SOP has been adopted, published, and applied against Bronx Household, the controversy is unquestionably ripe for adjudication.
We believe the understanding we have put forth comports with common understanding and find nothing in dictionary definitions of the term's three component words that is inconsistent with our understanding. Nor does Judge Walker offer a better definition, whether derived from a dictionary or another source.
Furthermore, we do not understand why Judge Walker should concern himself with what we take SOP § 5.11 to mean by "religious worship services." According to his argument, no matter what SOP § 5.11 means by "religious worship services," it necessarily constitutes unlawful viewpoint discrimination because it excludes activity on the basis of the activity's religious nature. If Judge Walker is right as to the applicable test, SOP § 5.11 is void no matter what it means by "religious worship services."
