LORETTA A. PRESKA, Chief Judge.
The Bronx Household of Faith, Robert Hall, and Jack Roberts ("Plaintiffs") are once again before this Court seeking a preliminary injunction against the Board of Education of the City of New York (the "Board")
The Bronx Household of Faith (the "Church") is a 37-year-old, "community-based" Christian church with approximately 85-100 congregants. (Hall Decl. ¶¶ 3, 6.) The Church has used the school auditorium in P.S. 15 in the Bronx, New York, on a weekly basis since 2002 for purposes of holding its Sunday worship services. (Id. ¶¶ 3, 5.) Defendants granted the Church permission to worship in P.S. 15 following this Court's July 3, 2002 order
Bronx II, 400 F.Supp.2d at 587.
This Court found that, in light of the Supreme Court's decision in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), Plaintiffs demonstrated a substantial likelihood of success in showing that this particular iteration of SOP § 5.11 violated their First Amendment free speech rights.
In March 2005, the Board announced it planned to modify SOP § 5.11 ("Revised SOP § 5.11") to read as follows:
In June 2011, the Court of Appeals issued a split decision reversing summary judgment and vacating the preliminary injunction. See 650 F.3d 30 (2d Cir.2011) ("Bronx Appeal III"). The majority first concluded that "the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid nondiscriminatory reasons only a type of activity-the conduct of worship services." Id. at 33. Further, "because Defendants reasonably seek by the rule to avoid violating the Establishment Clause," the majority held that "the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause." Id.
The majority drew a line between the individual religious activities expressly permitted in Good News Club (e.g., prayer, religious instruction, expression of devotion to God, and the singing of hymns), which amount to "worship," and "worship services" — the former permitted under Revised SOP § 5.11 and the latter excluded. Id. at 36-37. The majority then defined worship services as "a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion." Id. at 37. Regarding the Board's concern of violating the Establishment Clause, the majority made clear that it was not deciding "whether use of the school for worship services would in fact violate the Establishment Clause." Id. at 40; see also id. at 49 ("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."). Rather, it concluded that the Board's concern was
Finally, the majority considered Plaintiffs' Establishment Clause claim but was "not persuaded." Id. at 45. It did not believe a reasonable observer would perceive Revised SOP § 5.11's ban on religious worship services as being hostile to religion. Id. at 45-46. And it did not believe that enforcement of the policy causes excessive governmental entanglement with religion. Id. at 46-48.
In his dissent, Judge Walker disagreed with the majority on both of its conclusions relating to the free speech analysis. First, he concluded that Revised SOP § 5.11's ban on religious worship services constitutes impermissible viewpoint discrimination. Id. at 54-59. He did not find that the majority drew a workable distinction between "worship" and "worship services" and concluded that Good News Club foreclosed the Board from excluding worship services. Id. at 55-56. Moreover, Judge Walker found the majority's definition of religious worship services "leads to anomalous results: while a Catholic or Episcopal service would be shut out of the forum, a Quaker meeting service, Buddhist meditation service, or other religions worship convocation could be allowed because it would not follow a `prescribed order' or because the leader is not `ordained.'" Id. at 56.
Second, Judge Walker did not find the Board's professed Establishment Clause rationale to be reasonable. Id. at 59-64. Instead, he would hold that "the actions of Bronx Household, a private party, cannot transform the government's neutral action into an Establishment Clause violation." Id. at 59. In Judge Walker's opinion, an objective, fully informed observer would not perceive governmental endorsement of religion because the Board's schools are "open to a wide spectrum of participants," which "bespeaks the state's neutrality, not its favoring of religion or any other group." Id. at 61. Finally, Judge Walker indicated that Revised SOP 5.11 raises Free Exercise Clause concerns and would not withstand a free exercise challenge because the Board cannot demonstrate a compelling state interest that would justify the policy's burdening of religious practices. Because Judge Walker found that the Board's Establishment Clause rationale is not even reasonable, he concluded that it could not be compelling. Id. at 58 n. 4.
The Court of Appeals denied Plaintiffs' request for an en banc rehearing on July 27, 2011, and the Supreme Court denied Plaintiffs' petition for certiorari on December 5, 2011. ___ U.S. ___, 132 S.Ct. 816, 181 L.Ed.2d 541 (2011). That cleared the way for the Court of Appeals to issue its mandate on December 7, 2011. Despite vacatur of the injunction, Defendants agreed to adjourn enforcement of Revised SOP § 5.11 until February 13, 2012.
On December 14, 2011, Plaintiff Hall submitted a new application on behalf of the Church to continue using P.S. 15 on Sunday mornings for the period January 8, 2012 to February 12, 2012. (Hall Decl. ¶ 15, Ex. A.) In the space on the application entitled "Description of activities to be conducted" Hall wrote, "Hymn singing, prayer, communion, preaching, teaching, fellowship." (Id.) On the permit approving the application, however, the Board listed the activities as "WORHIP [sic] HYMN SINGING, PRAYER, COMMUNION, PREACHING." (Id. ¶ 16, Ex. B.)
On December 16, 2011, this Court ordered the parties to confer and propose how they wished to proceed in light of the
Oral argument was held on February 14, 2012. At the conclusion of oral argument the Court asked the parties to confer as to whether they could arrange a temporary resolution for the coming weekend. That evening Defendants wrote the Court that they would not agree to suspend immediate implementation of Ch. Reg. D-180. The Court issued a temporary restraining order on February 16, 2012, enjoining Defendants from enforcing that part of Ch. Reg. D-180 that provides: "No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship."
Plaintiffs seek a preliminary injunction to preserve the status quo of meeting in P.S. 15 on Sunday mornings, which they have done since this Court issued its initial preliminary injunction in 2002. A court generally may grant a preliminary injunction when the moving party can establish both (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficient questions on the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the moving party. E.g., Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir.2011). When a party seeks a "mandatory" preliminary injunction that "`alter[s] the status quo by commanding some positive act,' as opposed to a `prohibitory' injunction seeking only to maintain the status quo," the moving party must make a "`clear showing that [it] is entitled to the relief requested, or [that] extreme or very serious damage will result from a denial of preliminary relief.'" Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n. 4 (2d Cir.2010) (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34-35 (2d Cir.1995)) (first alteration in original); see also Fifth Ave. Presbyterian Church v. City of N.Y., 293 F.3d 570,
When this Court issued the initial preliminary injunction in 2002, it applied the higher burden of proof required for mandatory injunctive relief because at the time the Church was not meeting in the Board's schools; thus, Plaintiffs sought to alter the status quo. Bronx I, 226 F.Supp.2d at 411. This time around, Plaintiffs seek prohibitory injunctive relief because they wish to maintain the current status quo-viz., meeting in P.S. 15 on Sunday mornings as they have for nearly ten years. As such, although the Court finds that they have done so,
The Court finds that Plaintiffs have satisfied their burden of demonstrating irreparable harm and a likelihood of success on the merits of their Free Exercise Clause claim and Establishment Clause claim. Furthermore, the Court finds that these claims are not precluded by the doctrines of the law of the case, claim preclusion, and issue preclusion. Each of these findings is addressed below.
Plaintiffs claim that because Revised SOP § 5.11 prevents them from holding Sunday worship services in the Board's public schools — the only location in which they can afford to gather as a full congregation without having to curtail other of their religious practices — it prohibits their free exercise of religion in violation of their First Amendment rights. Plaintiffs assert the prohibitive cost of renting commercial space for the Church's worship services would force them "to reduce and/or eliminate ministries to [the Church's] members and ... local community." (Hall Decl. ¶ 9.) "[The] entire congregation could no longer worship together," which would "undermine the fellowship" that is a "vital aspect of [the Church's] religious ministry and calling." (Id. ¶ 11.) Being banned from using the Board's schools would also "undermine [the Church's] ability to engage in the duties of [the Church's] Christian faith-to corporately pray for one another, hear testimony, engage in collective praise, and serve the local community." (Id. ¶ 12.) "In addition, [the Church] will lose some [congregants] because they would not be able to participate in [the Church's] vital Sunday ministry. Many of these individuals are elderly, disabled, or lack transportation, and traveling to another location is not an option." (Id. ¶ 13.)
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Here, the alleged deprivation of Plaintiffs' free exercise rights results directly from the Board's implementation of Revised SOP § 5.11 so as to ban Plaintiffs from holding worship services in P.S. 15 on Sundays.
Unsurprisingly, the Court of Appeals did not address Plaintiffs' Free Exercise Clause claim when it reversed summary judgment for Plaintiffs and vacated the injunction. That is so because this Court granted summary judgment and the permanent injunction on free speech grounds only. Simply put, there was no need for the Court of Appeals to rule on the Free Exercise Clause claim because it was not immediately before the appellate panel. This Court has now fully considered the claim and finds Plaintiffs have demonstrated a likelihood of success on the merits. In addition, new facts documenting how the Board's current policy fosters excessive governmental entanglement with religion and the Supreme Court's recent decision in Hosanna-Tabor persuade the Court that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim as well.
The Free Exercise Clause of the First Amendment, as applied to the states through the Fourteenth Amendment, provides that "Congress shall make no law... prohibiting the free exercise [of religion]." U.S. Const. amend. I. "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). While "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice[,] ... [a] law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Id. at 531-32, 113 S.Ct. 2217 (citing Emp't Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)); see also Fifth Ave. Presbyterian Church, 293 F.3d at 574 ("Government enforcement of laws or policies that substantially burden the exercise of sincerely held religious beliefs is subject to strict scrutiny.").
There can be no doubt that Revised SOP § 5.11 implicates the protections of the Free Exercise Clause given that it "regulates or prohibits conduct because [the conduct] is undertaken for religious reasons." Lukumi, 508 U.S. at 532, 113 S.Ct. 2217. The policy expressly bans "religious worship services" — conduct for which there is no secular analog. See Bronx Appeal III, 650 F.3d at 37 ("The `religious worship services' clause does not purport to prohibit use of the facility by a person or group of persons for `worship.' What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion,
A law is not neutral if its object is to infringe upon or restrict practices because of their religious motivation. Lukumi, 508 U.S. at 533, 113 S.Ct. 2217. Thus, on its face, Revised SOP § 5.11 is not neutral because it "refers to a religious practice without a secular meaning discernable from the language or context." Id.; see also Bronx Appeal III, 650 F.3d at 58 n. 4 (Walker, J., dissenting) ("Given the plain language of SOP § 5.11, the Board's persistent exclusion of outside organizations seeking to use school facilities for religious purposes, and the Board's repeated statements that SOP § 5.11 is aimed at the practice of religion, it is undisputable that SOP § 5.11 is not neutral.").
In addition, the policy also is not neutral because it discriminates between those religions that fit the "ordained" model of formal religious worship services, see Bronx Appeal III, 650 F.3d at 37 (defining worship services as "a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion"), and those religions whose worship practices are far less structured, see id. at 56 (Walker, J., dissenting) (noting that the majority's definition "leads to anomalous results: while a Catholic or Episcopal service would be shut out of the forum, a Quaker meeting service, Buddhist meditation service, or other religions worship convocation could be allowed because it would not follow a `prescribed order'" or because the leader is not `ordained').
Having concluded that Revised SOP § 5.11 raises Free Exercise Clause concerns
The Court does not doubt that a desire to avoid an actual violation of the Establishment Clause can be a compelling state interest. See Widmar v. Vincent, 454 U.S. 263, 270-71, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) ("The University ... argues that it cannot offer its facilities to religious groups and speakers on the terms available to other groups without violating the Establishment Clause of the Constitution of the United States. We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling." (footnote omitted)). For example, in the context of free speech analysis, the Supreme Court has said that "compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech." Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995); Good News Club, 533 U.S. at 112-13, 121 S.Ct. 2093.
However, the Supreme Court has not decided whether a state's Establishment Clause rationale might be sufficiently compelling to justify viewpoint discrimination. See Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 ("[I]t is not clear whether a State's interest in avoiding an Establishment Clause violation would justify viewpoint discrimination."). The Court in Good News Club avoided deciding that question because it concluded that the defendant-school had no valid Establishment Clause concern. Id. at 113-19, 121 S.Ct. 2093. Because the majority in Bronx Appeal III found that Revised SOP § 5.11's ban on religious worship services qualifies as a content-based restriction in light of the defined purposes of the limited public forum and that it was reasonable for the Board to believe that permitting worship services in its schools would, in fact, violate the Establishment Clause, the Court of Appeals rejected Plaintiffs' free speech challenge. See Bronx Appeal III, 650 F.3d at 33 ("We also conclude that because Defendants reasonably seek by rule to avoid violating the Establishment Clause, the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause." (emphasis added)).
Importantly, neither the Court of Appeals nor the Supreme Court has ruled whether permitting religious worship services in schools during non-school hours violates the Establishment Clause. See, e.g., Bronx Appeal III, 650 F.3d at 49 ("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."); id. at 43 ("To reiterate, we do not say that a violation has occurred, or would occur but for the policy."). The Court of Appeals determined that resolving that question was unnecessary in Bronx Appeal III because the Board only had to show its Establishment Clause rationale for banning religious worship services was reasonable. Because this Court concludes that strict scrutiny now applies to the consideration of Plaintiffs'
The Court credits the Board's word that in adopting Revised SOP § 5.11 the Board was motivated by a concern that allowing schools to be used during non-school hours for "religious worship services" could be perceived as violating the Establishment Clause. But from the perspective of the objective, fully informed observer, see Bronx Appeal III, 650 F.3d at 60 (Walker, J., dissenting) ("[T]he 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.'" (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000)) (second and third alterations in original)), no such violation would result. This Court considered the Board's Establishment Clause rationale in Bronx I and concluded the following:
226 F.Supp.2d at 426 (internal citations and footnote omitted); see also Bronx Appeal III, 650 F.3d at 61-62 (Walker, J., dissenting) ("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"). The Court readopts all these reasons.
The Court also notes that the objective observer would know from the text of the regulation that the schools are open to all comers whose activities are consistent with the broad uses of the limited public forum prescribed therein. That observer would also know from the legislative history and implementation of the policy (including the lengthy judicial history) that the Board's actions betoken great effort to avoid establishing any religion. For all these reasons, the "objective observer, acquainted
Furthermore, the Board's stated concern that allowing Plaintiffs' Sunday worship services to be held in P.S. 15 would effectively subsidize the Church given New York's otherwise expensive real estate market is contradicted both by precedent and the facts of this case. As the Supreme Court explained in Rosenberger v. Rector & Visitors of the University of Virginia:
515 U.S. 819, 842-43, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (citations omitted). To accept the Board's argument would mean the Supreme Court has impermissibly sanctioned, again and again, state subsidization of religion when public schools open their doors as limited public forums. See, e.g., Good News Club, 533 U.S. 98, 121 S.Ct. 2093 (holding that public school could not exclude outside religious organization from meeting for Bible study, prayer, and devotion to God); Widmar, 454 U.S. 263, 102 S.Ct. 269 (holding that public university could not exclude student religious group from meeting for purposes of religious worship and religious discussion).
Here, whether religious student clubs meet in the Board's schools for Bible study (a permissive use under Revised SOP § 5.11) or Plaintiffs meet for Sunday worship services (an impermissible use under the policy), the result is the same: "the use of public funds to finance religious activities." DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 419 (2d Cir.2001) (internal quotation marks omitted). But the Supreme Court precedent cited above makes clear that no valid Establishment Clause concern exists in this regard when a school grants access to its facilities "on a religion-neutral basis to a wide spectrum" of outside groups as Defendants do here. Rosenberger, 515 U.S. at 821, 115 S.Ct. 2510. Thus, this misplaced concern does not make the Board's interest a compelling one, and the Court ultimately agrees with Judge Walker that "the actions of Bronx Household, a private party, cannot transform the government's neutral action into an Establishment Clause violation." Bronx Appeal III, 650 F.3d at 59 (Walker, J., dissenting).
Even assuming, arguendo, that the Board's Establishment Clause rationale may be characterized as compelling, the Board must show that Revised SOP § 5.11 is narrowly tailored to advance its interest of not appearing to endorse religion as proscribed by the Establishment Clause. Although the second prong of the strict scrutiny analysis generally focuses on the scope of the policy-i.e., whether the policy is narrowly tailored-it also requires that the policy, in fact, advance the state's interest. Because the Court finds that Revised SOP § 5.11's ban on religious worship services is ineffective in achieving the Board's stated concern of avoiding a violation of the Establishment Clause, the challenged policy does not advance the Board's interest. The Board also has not demonstrated that the policy is narrowly tailored. Revised SOP § 5.11 thus fails the second prong of Lukumi's strict scrutiny analysis.
Despite Defendants' claim that Revised SOP § 5.11's ban on religious worship services is necessary to avoid the perception of endorsement of religion, the policy does not serve that purpose. Because it singles out only those religions that conduct "ordained" worship services, the ban works against the informed observer's perception of neutrality that would otherwise result if all religions were treated on the same terms. 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."); Bd. of Educ. v. Mergens, 496 U.S. 226, 248, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) ("[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.").
Indeed, "the fact that the [Board's schools are] open to a wide spectrum of participants bespeaks the state's neutrality, not its favoring of religion or any other group." Bronx Appeal III, 650 F.3d at 61 (Walker, J., dissenting). While Christian churches use the schools to worship on Sundays, Jewish and Muslim groups use the schools on Fridays and Saturdays. Bronx Appeal III, 650 F.3d at 62-63 (Walker, J., dissenting). The objective, fully informed observer who passes by the Board's schools and witnesses a wide variety of community groups meeting on weeknights, followed by a Jewish Friday night service, a Ramadan Saturday evening service, and finally a Sunday morning Christian worship service, could not reasonably infer that the Board was endorsing religion in its public schools. Rather, the informed observer would conclude that the Board opens its schools during non-school hours to a diverse group of organizations pursuant to a neutral policy generally aimed at improving "the welfare of the community." Revised SOP § 5.22's ban on religious worship services — which would exclude certain religions from worshiping in the schools but permit others — only weakens the perception of neutrality as between religion and non-religion.
Beyond this, Revised SOP § 5.11 expressly provides that "[p]ermits may be
Because the Board has not shown that other, less restrictive measures would fail to advance the Board's stated interest, the Court finds that the regulation is not narrowly tailored. In Bronx Appeal III, Judge Walker explained why this
650 F.3d at 64 n. 11 (Walker, J., dissenting). Additionally, in order to dispel any implication of endorsement, the Board could, for example, require groups to install signs outside the schools disclaiming endorsement. That Defendants have not even addressed the potential effectiveness of options such as these signals that Revised SOP § 5.11's ban on religious worship services is not narrowly tailored to advance the Board's interest in avoiding a violation of the Establishment Clause. Thus, the lack of narrow tailoring is another reason why Revised SOP § 5.11 does not withstand Plaintiffs' free exercise challenge.
The interplay of Plaintiffs' free exercise rights and the Board's stated Establishment Clause concern warrants one final comment. The Court of Appeals acknowledged the difficult line the Board must toe in protecting Plaintiffs' First Amendment free speech rights so as not to cause a separate First Amendment violation by endorsing
Although the majority decided Bronx Appeal III on free speech grounds, it also addressed Plaintiffs' Establishment Clause claim. The majority indicated that Revised SOP § 5.11 likely satisfies the Lemon test for determining compliance with the Establishment Clause. See Bronx Appeal III, 650 F.3d at 45-48. Regarding the third prong of the Lemon test, which requires that the challenged regulation not foster an excessive entanglement with religion, see 403 U.S. at 613, 91 S.Ct. 2105, Plaintiffs claimed that the Board cannot apply Revised SOP § 5.11 without excessively entangling itself in matters of religious doctrine because the policy requires the Board to determine which religious practices amount to "worship services." The majority found this argument to be a non-starter due to Plaintiffs' own admission to the Board:
Bronx Appeal III, 650 F.3d at 47; see also id. at 52 n. 1 (Calabresi, J., concurring) ("Once an applicant says that what it wishes to do is `worship,' no inquiry into whether the underlying or accompanying activities actually constitute worship is required."). At oral argument on February 14, 2012, counsel for Defendants reiterated that Revised SOP § 5.11 does not raise excessive entanglement concerns because it asks the applicants themselves to certify whether their proposed permit use complies with the policy's ban on religious worship services and represented that the Board will not second-guess an applicant's own characterization of its proposed activities. Specifically, defense counsel maintained:
(Prelim. Inj. Hr'g Tr. at 22, 25-26, Feb. 14, 2012.) Factual and legal developments since the Court of Appeals decided Bronx Appeal III contradict these assertions and
First, the Board's handling of Plaintiffs' latest permit application belies the notion that the Board will take applicants' descriptions of their proposed activities at face value. Upon vetting Plaintiff Hall's December 2011 application to use P.S. 15 during the "adjournment" period before the Board began enforcing Revised SOP § 5.11, the Board sua sponte wrote in "WORHIP [sic]" as one of the Church's activities when Hall had only listed "Hymn singing, prayer, communion, preaching, teaching, fellowship" on the application. (Hall Decl. ¶¶ 15-16, Exs. A-B.) Though the permit was granted for the adjournment period, the Board's conduct suggests that an identical application would be rejected should the Board begin enforcing Revised SOP § 5.11. The Board essentially tallied the individual activities listed by Plaintiffs and concluded that "X, Y and Z equals worship." Thus, despite Defendants' suggestion that any concern about excessive entanglement may only properly be considered in the "next case," Plaintiffs now raise a colorable inference of excessive entanglement in this case.
Second, the Declaration of Brad Hertzog, Pastor of Reformation Presbyterian Church, in Support of Plaintiffs' Motion for Preliminary Injunction ("Hertzog Decl.") [Dkt. No. 126], illustrates how Revised SOP § 5.11 compels the Board unconstitutionally to inject itself into matters of religious province. Reformation Presbyterian Church ("Reformation") had been holding weekly meetings in P.S. 173 in Queens since 2009. (Hertzog Decl. ¶ 4.) Hertzog describes those meetings as follows:
(Id. ¶ 6.) In December 2011, after the Board informed Hertzog that Reformation's permit would expire on January 1, 2012, Hertzog applied for a new permit through June 2012. (Id. ¶ 7.)
On December 20, 2011, the Board's Yelena Kramer asked Hertzog to describe Reformation's proposed use of the new permit and asked, "Are you conducting religious worship services?" (Id. ¶ 8.) Hertzog answered that Reformation's meetings involve reading and studying the Bible, prayer, singing, and fellowship. (Id. ¶ 9.) Ms. Kramer responded that Hertzog did not answer her question directly and that she needed a "Yes or No" whether Reformation would be conducting religious worship services. (Id. ¶ 10.) Hertzog replied that he could not answer that question since he did not know how the Board defined "religious worship services." (Id. ¶ 11.) Soon thereafter, the Board's Lorenzo Arnoldo asked Hertzog for a detailed description of Reformation's meetings, and Hertzog responded in sum and substance with the description quoted above. (Id. ¶¶ 12-13.) Mr. Arnoldo wrote Hertzog on January 6, 2012, that Reformation's permit had been denied and provided the following explanation: "Chancellor's Regulation D-180, which governs the extended use of school buildings, prohibits a permit from being granted for the purpose of holding religious worship services or otherwise using a school as a house of worship." (Id. ¶ 14.)
The email string attached to Hertzog's declaration reveals the improper manner
While Defendants submitted no declaration on behalf of a litigant with personal knowledge of the facts of this case, counsel for defendants submitted a counter declaration to that of Mr. Hertzog. (See Declaration of Jonathan Pines, dated February 16, 2012 [Dkt. No. 127].) Counsel asserts in his declaration, inter alia:
(Id. ¶ 9 (internal citation omitted).) As evidenced in the email string between Mr. Hertzog and the Board, this characterization of the certification process differs from counsel's hearsay description at oral argument. The Court understood the Board's new policy to require every applicant to certify that it would comply with the Board's entire policy governing the use of school buildings during non-school hours. For example, the certification requirement would be no different for the Boy Scouts than for a synagogue seeking to hold Torah study classes: each organization would have to certify that its activities comply with the Board's policy. But apparently the Board only asks those organizations that plan to use the schools for religious purposes to certify compliance with the ban against religious worship services. The Board may then conduct an independent evaluation of the religious applicant's activities to ensure compliance. These revelations certainly suggest that religious organizations are targeted throughout the application process.
Defendants argue that any perceived targeting of religious organizations' permit applications is expressly allowed under the majority's opinion in Bronx Appeal III:
650 F.3d at 47 (footnote and citations omitted) (first emphasis added). The Court does not dispute this proposition or the general characterization that "government
The declarations recently filed in this case, however, demonstrate that the Board does not engage in a "mere act of inspection of religious conduct" when enforcing Revised SOP § 5.11. Rather, the Board has evidenced a willingness to decide for itself which religious practices rise to the level of worship services and which do not, thereby causing the government's entanglement with religion to become excessive. The Supreme Court in Widmar explained that such conduct is impermissible:
454 U.S. at 269 n. 6, 102 S.Ct. 269 (citations omitted). If such line-drawing is not within the judicial competence, so also it is not within the Board's.
Furthermore, the excessive entanglement is not diminished by what Defendants' counsel represented to be the Board's plan regarding certification, viz., to require all applicants to certify that their activities conform to the Board's policy. As set out above, Pastor Hertzog listed the activities Reformation planned to engage in and was then asked whether those activities constituted religious worship services. Even assuming the Board asked him whether Reformation's proposed activities conformed to the policy, he could not respond because he did not know how the Board defined "religious worship services." These unchallenged facts demonstrate that implementation of Revised SOP § 5.11 as represented by counsel would require the Board to define worship-a task beyond its (and the Court's) competence.
Finally, that the entanglement required by the current policy, however implemented, is excessive is confirmed by the Supreme Court's recent decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, ___ U.S. ___, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012). There, in deciding that the Free Exercise Clause and Establishment Clause provide for a "ministerial exception" that bars a minister from bringing an employment discrimination suit against her church, the Court emphasized the wide berth religious institutions are to be given with respect to their core activities, including worship. See id. at 706 ("By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.").
Indeed, that the Court of Appeals itself undertook to attempt to define worship in Bronx Appeal III merely illustrates the problem of excessive governmental entanglement with religion that led the Supreme Court to recognize the ministerial exception
In response to Plaintiffs' motion, Defendants do not argue the merits of Plaintiffs' claims but instead raise three procedural arguments. First, Defendants argue that the doctrine of the law of the case bars consideration of Plaintiffs' Free Exercise Clause claim and Establishment Clause claim. In support of this argument, Defendants point to the Court of Appeals' decision in Bronx Appeal III and the briefs Plaintiffs submitted on appeal in which they asserted both Free Exercise Clause and Establishment Clause claims. Defendants' second and third arguments rely upon the closely related doctrines of claim preclusion and issue preclusion; Defendants contend these doctrines bar relitigation of Plaintiffs' Free Exercise Clause claim because the Court of Appeals reached the merits of that claim in Bronx Appeal I. The Court disagrees.
The law of the case doctrine incorporates two subsidiary rules, United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.2001), only one of which pertains to this Court's obligations. The "mandate rule" describes the duty of the district court on remand. "When an appellate court has once decided an issue, the trial court, at a later stage of the litigation, is under a duty to follow the appellate court's ruling on that issue." United States v. Tenzer, 213 F.3d 34, 40 (2d Cir.2000) (internal quotation marks omitted) (emphasis added). "The mandate rule prevents relitigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court's mandate." Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.2010). However, in certain circumstances such as "a dramatic change in controlling legal authority" or "significant new evidence that was not earlier obtainable through due diligence but has since come to light," a district court may depart from the dictates of the mandate. United States v. Webb, 98 F.3d 585, 587 (10th Cir.1996); see also Ben Zvi, 242 F.3d at 95 (citing Webb with approval for its discussion of "circumstances when departure from [the] mandate rule may be warranted").
The mandate rule does not bar this Court from considering Plaintiffs' Free Exercise Clause and Establishment Clause claims. As an initial matter, the mandate reversed summary judgment and vacated the permanent injunction, both of which had been granted on free speech grounds only. With respect to the Free Exercise Clause claim, there can be no doubt that the Court of Appeals failed to rule on it. See, e.g., Bronx Appeal III, 650 F.3d at 58 n. 4 (Walker, J., dissenting)
As for Plaintiffs' Establishment Clause claim, the recent declarations submitted by Pastors Hall and Hertzog reflect "significant new evidence that was not earlier obtainable through due diligence but has since come to light." Webb, 98 F.3d at 587. This evidence was not obtainable when the Court of Appeals decided Bronx Appeal III because the facts alleged in the declarations occurred after the Court of Appeals issued its mandate. Because the Court finds that the facts alleged therein significantly alter the majority's excessive entanglement analysis, reconsideration of Plaintiffs' Establishment Clause claim is proper. This is especially so in light of the Court's preference for deciding cases on their merits.
The doctrine of claim preclusion, or res judicata, precludes parties to a litigation or their privies from relitigating issues that were or could have been raised prior to a final judgment on the merits. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Monahan v. N.Y. City Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir.2000). The factors a court may consider when deciding whether a final judgment on one claim has preclusive effect on a subsequent claim include whether the same series of transactions is at issue, whether the claims rely on common evidence, and whether facts essential to the subsequent claim were in play when the first claim was considered. See Monahan, 214 F.3d at 285. A party raising the affirmative defense of claim preclusion must show "(1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Id.
Defendants argue that both these doctrines bar relitigation of Plaintiffs' Free Exercise Clause claim in this case because the Court of Appeals rejected Plaintiffs' Free Exercise Clause claim in the first litigation. In Bronx Appeal I, the Court of Appeals considered a free exercise challenge to Revised SOP § 5.11's predecessor — which prohibited outside organizations from using the Board's schools for "religious services or religious instruction" — and found it lacking in merit:
127 F.3d at 216 (citations omitted). Defendants argue that even though a different policy was at issue in Bronx Appeal I, since that policy prohibited more religious activity than the current policy, the Court of Appeals' free exercise analysis remains undisturbed and therefore precludes Plaintiffs from raising a free exercise challenge in this case.
Defendants' claim preclusion and issue preclusion arguments suffer from the same fatal flaw. Despite accurately stating the respective tests for each doctrine Defendants fail to show how each element is satisfied on the facts of this case, and they cannot do so. As to claim preclusion, Defendants cannot demonstrate that Plaintiffs raised or could have raised their current Free Exercise Clause claim, based on Revised SOP § 5.11, in the first litigation. With respect to issue preclusion, Defendants cannot demonstrate that the issues in both proceedings are identical. This is so because Defendants overlook a key aspect of Plaintiffs' free exercise challenge to the Board's current policy. Even though
For the foregoing reasons, Plaintiffs' Motion for Preliminary Injunction [Dkt. No. 114] is GRANTED. Defendants are enjoined from enforcing Ch. Reg. D-180 § I.Q so as to deny Plaintiffs' application or the application of any similarly — situated individual or entity to rent space in the Board's public schools for morning meetings that include religious worship.
SO ORDERED.
However, the majority did not expressly state that it found the Board's Establishment Clause rationale to be a compelling state interest. Even assuming the Court of Appeals found that the Board's strong basis for concern of violating the Establishment Clause amounts to a compelling interest, Revised SOP § 5.11 survives Plaintiffs' free exercise challenge only if it is narrowly tailored to achieve that interest. For the reasons stated infra Part III.B.1(c), the Court finds that Revised SOP § 5.11 fails this second prong of Lukumi's strict scrutiny analysis.
