Bronx Household of Faith, et al. v. Board of Education, No. 07-5291 (2d Cir. 2011)

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Justia Opinion Summary

Defendants appealed from an order of the district court granting summary judgment to plaintiffs and entering a permanent injunction barring the Board of Education of the City of New York ("Board") from enforcing a rule that prohibited outside groups from using school facilities after hours for "religious worship services." At issue was whether the rule constituted viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. The court held that because the rule did not exclude expressions of religious points of view or of religious devotion, but excluded for valid non discriminatory reasons only a type of activity, the conduct worship services, the rule did not constitute viewpoint discrimination. The court also held that because defendants reasonably sought by this rule to avoid violating the Establishment Clause, the exclusion of religious worship services was a reasonable content-based restriction, which did not violate the Free Speech Clause. Accordingly, the judgment of the district court was reversed and the injunction barring enforcement of the rule against plaintiffs was vacated.

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07-5291-cv Bronx Household v. Board of Education 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Argued: October 6, 2009 5 Decided: June 2, 2011) Docket No. 07-5291-cv 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 7 8 THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL, and JACK ROBERTS, 9 Plaintiff-Appellees, 10 v. 11 12 BOARD OF EDUCATION OF THE CITY OF NEW YORK and COMMUNITY SCHOOL DISTRICT NO. 10, 13 14 15 16 17 18 Defendant-Appellants. -------------------------------X 19 Before: WALKER, LEVAL, and CALABRESI, Circuit Judges. 20 21 22 23 24 25 Defendants appeal from an order of the United States District Court for the Southern District of New York (Preska, C.J.) granting summary judgment to Plaintiffs and entering a permanent injunction barring the Board of Education of the City of New York from enforcing a rule that prohibits outside groups from using school facilities after hours for religious worship services. The Court of Appeals (Leval, J.) concludes that (1) because the rule does not exclude expressions of religious points of view or of religious devotion, but excludes for valid non1 1 2 3 4 5 6 discriminatory reasons only a type of activity the conduct of worship services, the rule does not constitute viewpoint discrimination; and (2) because Defendants reasonably seek by this 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. Accordingly, the judgment of the district court is reversed and the injunction barring enforcement of the rule against Plaintiffs is vacated. 7 Judge Calabresi concurs in the opinion and has filed an additional concurring opinion. 8 Judge Walker dissents by separate opinion. 9 10 11 12 13 JANE L. GORDAN, Senior Counsel (Edward F.X. Hart, Lisa Grumet, Janice Casey Silverberg, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Appellants. 14 15 16 17 JORDAN W. LORENCE, Alliance Defense Fund, Washington, D.C. (Joseph P. Infranco, Jeffrey A. Shafer, David A. Cortman, Benjamin W. Bull, on the brief), for Appellees. 18 19 20 21 22 23 24 25 26 Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York (David J. Kennedy, Assistant United States Attorney, Southern District of New York, Grace Chung Becker, Acting Assistant Attorney General, Dennis J. Dimsey, Eric W. Treene, Karl N. Gellert, Attorneys, Appellate Section, Civil Rights Division, U.S. Department of Justice, on the brief), for Amicus Curiae United States of America. 27 28 29 30 31 32 Mitchell A. Karlan, Gibson, Dunn & Crutcher LLP, New York, New York (Aric H. Wu, Farrah L. Pepper, Gibson, Dunn & Crutcher LLP, Carol Nelkin, Jeffrey P. Sinensky, Kara H. Stein, The American Jewish Committee, on the brief), for Amicus Curiae The American Jewish Committee. 33 34 35 36 Isaac Fong, Center for Law and Religious Freedom, Springfield, Virginia (Kimberlee Wood Colby, Gregory S. Baylor, on the brief), for Amicus Curiae The Christian Legal Society. 2 1 2 3 4 5 6 7 8 9 Eloise Pasachoff, Committee on Education and the Law, Association of the Bar of the City of New York, New York, New York (Jonathan R. Bell, Rosemary Halligan, Laura L. Himelstein, on the brief), for Amicus Curiae Association of the Bar of the City of New York. 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 10 Board ),1 appeal from an order of the United States District Court for the Southern District of 11 New York (Preska, C.J.), which granted summary judgment to Plaintiffs the Bronx Household of 12 Faith ( Bronx Household ), a Christian church, and its pastors Robert Hall and Jack Roberts, 13 and permanently enjoined the Board from enforcing against Bronx Household a Standard 14 Operating Procedure ( SOP ) that prohibits the use of school facilities by outside groups outside 15 of school hours for religious worship services. We conclude that the challenged rule does not 16 constitute viewpoint discrimination because it does not seek to exclude expressions of religious 17 points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons 18 only a type of activity the conduct of worship services. We also conclude that because 19 Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the 20 exclusion of religious worship services is a reasonable content-based restriction, which does not 21 violate the Free Speech Clause. Accordingly, we reverse the judgment of the district court and 22 vacate the injunction. 1 The Board of Education of the City of New York has been reorganized and renamed the New York City Department of Education. See, e.g., D.D. ex rel V.D. v. New York City Bd. of Educ., 465 F.3d 503, 506 n.1 (2d Cir. 2006). 3 1 BACKGROUND 2 The relevant facts are familiar, and are not in dispute. See Bronx Household of Faith v. 3 Bd. of Educ. of the City of New York (Bronx Household III), 492 F.3d 89 (2d Cir. 2007). Under 4 New York State law, a local public school district may permit its facilities to be used outside of 5 school hours for purposes such as social, civic and recreational meetings and entertainments, 6 and other uses pertaining to the welfare of the community, as long as the uses are nonexclusive 7 and . . . open to the general public. N.Y. Educ. Code § 414(1)(c). Pursuant to this provision, 8 New York City s Department of Education developed a written policy governing use of school 9 facilities during after-school hours as part of its Standard Operating Procedures Manual. The 10 policy, or SOP, permits outside groups to use school premises for the purposes described in the 11 state law, when the premises are not being used for school programs and activities, but subject to 12 limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property 13 for religious services or religious instruction. 2 Bronx Household of Faith v. Cmty. Sch. Dist. 14 No. 10 (Bronx Household I), 127 F.3d 207, 210 (2d Cir. 1997). 15 In 1994, Bronx Household applied to use space in the Anne Cross Mersereau Middle 16 School ( M.S. 206B ) in the Bronx, New York, for its Sunday morning church service[s]. 17 Bronx Household of Faith v. Bd. of Educ. of the City of New York, 226 F. Supp. 2d 401, 410 2 SOP § 5.9 provided: No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purposes of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible. Bronx Household I, 127 F.3d at 210. 4 1 (S.D.N.Y. 2002) (quoting First Affidavit of Robert Hall). According to Bronx Household s 2 application, its services would include singing of Christian hymns and songs, prayer, fellowship 3 with other church members and Biblical preaching and teaching, communion, [and] sharing of 4 testimonies, followed by a fellowship meal, during which attendees talk to one another, 5 [and] share one another s joys and sorrows so as to be a mutual help and comfort to each other. 6 Id. The Board denied Bronx Household s application under SOP § 5.9. Bronx Household I, 127 7 F.3d at 211. 8 Plaintiffs brought suit, contending that the Board s denial of Bronx Household s 9 application constituted viewpoint discrimination in violation of the Free Speech Clause of the 10 First Amendment. The district court granted the Board s motion for summary judgment, and 11 dismissed the suit. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501, 1996 12 WL 700915 (S.D.N.Y. Dec. 5, 1996) (Preska, J.). We affirmed, concluding that the Department 13 of Education had created a limited public forum by opening school facilities only to certain 14 activities, and that the exclusion of religious services and religious instruction was viewpoint- 15 neutral and reasonable in light of the forum s purposes. Bronx Household I, 127 F.3d at 211-15, 16 217. 17 In 2001, however, the Supreme Court ruled in Good News Club v. Milford Central 18 School, 533 U.S. 98 (2001), that it was unconstitutional for a public school district in Milford, 19 New York, to exclude from its facilities a private Christian organization for children, which 20 had requested permission to use space in a school building after school hours to sing songs, read 21 Bible lessons, memorize scripture, and pray. Id. at 103. The Milford district s policy, in 22 accordance with New York state law, permitted school facilities to be used for social, civic and 23 recreational meetings and entertainment events, and other uses pertaining to the welfare of the 5 1 community. Id. at 102 (quoting N.Y. Educ. Code § 414(1)(c)). However, it prohibited use by 2 any individual or organization for religious purposes, which school district officials interpreted 3 as prohibiting religious worship or religious instruction. Id. at 103-04. The Supreme Court 4 concluded that the Good News Club was seeking to address a subject otherwise permitted [in 5 the school], the teaching of morals and character, from a religious standpoint, and, therefore, 6 the school district s denial of the club s application constituted impermissible viewpoint 7 discrimination in the context of a limited public forum. Id. at 109. 8 9 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 10 New York (Bronx Household II), 331 F.3d 342, 346-48 (2d Cir. 2003). Plaintiffs brought a new 11 action, and this time the district court, citing Good News Club, preliminarily enjoined the Board 12 from denying the permit. Bronx Household, 226 F. Supp. 2d at 427. We affirmed the 13 preliminary injunction, finding that the district court did not abuse its discretion, and 14 acknowledging the factual parallels between the activities described in Good News Club and the 15 activities at issue in the present litigation. Bronx Household II, 331 F.3d at 354. After the 16 issuance of the preliminary injunction, Bronx Household applied for, and was granted, 17 permission to use P.S. 15 in the Bronx for its Sunday Christian worship service[s]. Bronx 18 Household III, 492 F.3d at 94, 101 (Calabresi, J., concurring). 19 Bronx Household thereafter moved for summary judgment to convert the preliminary 20 injunction into a permanent injunction, and the Board cross-moved for summary judgment. 21 During the pendency of the motions for summary judgment, the Board wrote to the district court 6 1 asking the court to adjudicate the issue under a revised SOP, numbered SOP § 5.11,3 which was 2 intended to replace the old standard. The Board advised that the new SOP § 5.11 had been 3 approved at the highest levels of the Department of Education and that if Bronx Household 4 were to reapply, its application would be rejected under the new SOP § 5.11. Id. at 95 n.2. The 5 text of the new SOP § 5.11 prohibited use of school property for religious worship services, or 6 otherwise using a school as a house of worship. 4 The district court, after initially expressing 7 doubt about its jurisdiction to rule on the constitutionality of a rule whose status was unclear and 8 which had not been applied against Plaintiffs, nevertheless concluded that the question was 9 justiciable and granted summary judgment in favor of Bronx Household, permanently enjoining 10 the Board from enforcing the proposed SOP § 5.11. Bronx Household of Faith v. Bd. of Educ. of 11 City of New York, 400 F. Supp. 2d 581, 588, 601 (S.D.N.Y. 2005). The district court concluded 12 that its decision was compelled by the Supreme Court s decision in Good News Club. 13 On appeal, a majority consisting of Judge Calabresi and me, over dissent by Judge 14 Walker, vacated the permanent injunction, although we were divided as to the rationale for doing 15 so. Bronx Household III, 492 F.3d at 91 (per curiam). Judge Calabresi would have reached the 3 Before the revision of the standard was proposed, the old SOP § 5.9 was renumbered (without change in text) to § 5.11. To avoid confusion, in this opinion we use SOP § 5.9 to refer to the standard utilized by the Board before revision of the text, and we use SOP § 5.11 to refer to the new text quoted in footnote 4. 4 SOP § 5.11 states: No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship. Permits may be granted to religious clubs for students that are sponsored by outside organizations and otherwise satisfy the requirements of this chapter on the same basis that they are granted to other clubs for students that are sponsored by outside organizations. 7 1 merits and would have ruled that the proposed SOP § 5.11 was a reasonable, viewpoint-neutral, 2 content-based restriction. Id. at 100-06 (Calabresi, J., concurring). I concluded that litigation 3 over the constitutionality of the proposed SOP § 5.11 was unripe for adjudication. Id. at 122-23 4 (Leval, J., concurring). This was because the proposed rule, although approved at the highest 5 levels, had not been promulgated by the Board, and Bronx Household had neither applied, nor 6 been refused, under the new standard. Id. at 115, 122 n.8. Judge Walker wrote in dissent that he 7 would have reached the merits and would have ruled that enforcement of the new SOP was 8 barred by Good News Club, because in his view it constituted impermissible viewpoint 9 discrimination. Id. at 123-24 (Walker, J., dissenting). We remanded the case to the district court 10 for all purposes. Id. at 91 (per curiam). 11 In July 2007, shortly after our decision remanding the case, the Board adopted the 12 proposed SOP and published it for the first time. Bronx Household applied to use P.S. 15 under 13 the new rule, stating in its application that it planned to use the facilities for Christian worship 14 services, and the Board denied the application.5 Both parties then moved for summary 15 judgment. The district court again granted summary judgment in favor of Bronx Household and 16 permanently enjoined the Board from enforcing SOP § 5.11 against Bronx Household, adopting 5 Previously, the Board s rules, which it published on its website, included no reference to the new SOP § 5.11; a person telephoning the Board to inquire whether there was a rule that governed use of school facilities after hours by religious groups was told no rule was in effect. In short, at the time we last heard this case, the new rule had not been promulgated, applied, or even disclosed to the public, and was not applied to Bronx Household. This led me to conclude, for reasons I explained in my concurring opinion, see 492 F.3d at 110-23, that there was no ripe controversy before the court as to the constitutionality of SOP § 5.11. 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. 8 1 the reasoning of its previous opinion. Bronx Household of Faith v. Bd. of Educ. City of New 2 York, No. 01 Civ. 8598 (S.D.N.Y. Nov. 1, 2007) (Preska, J.). 3 The case is now before us for the fourth time. 4 5 DISCUSSION P.S. 15 is a limited public forum. See Bronx Household III, 492 F.3d at 97-98 (Calabresi, 6 J., concurring); id. at 125 (Walker, J., dissenting); Bronx Household I, 127 F.3d at 211-14. As 7 explained in Judge Calabresi s opinion in Bronx Household III, a category of speakers or 8 expressive activities may be excluded from a limited public forum only on the basis of 9 reasonable, viewpoint-neutral rules. Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 10 F.3d 617, 626 (2d Cir. 2005). Thus, the operator of a limited public forum may engage in 11 content discrimination, which may be permissible if it preserves the purposes of that limited 12 forum, but may not engage in viewpoint discrimination, which is presumed impermissible 13 when directed against speech otherwise within the forum s limitations. Rosenberger v. Rector 14 & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995); see also Christian Legal Soc y v. 15 Martinez, 130 S. Ct. 2971, 2984 (2010); Good News Club, 533 U.S. at 106-07. 16 SOP § 5.11, on its face, prohibits use of school facilities for two types of activities. The 17 rule prohibits use of schools for religious worship services, and prohibits also otherwise using 18 a school as a house of worship. Bronx Household stated in its application that it sought a 19 permit to use P.S. 15 for Christian worship services. While the Board did not explain its 20 rejection of the application, it is clear that an application to use the school for Christian worship 21 services falls under the words of SOP § 5.11 prohibiting use for religious worship services. 22 We therefore assume the Board relied, at least in part, on this clause of its rule in rejecting the 23 application. (Accordingly, we need not, and this opinion does not, consider whether the Board 9 1 could lawfully exclude Bronx Household under the second, less precise, branch of the rule 2 proscribing use of a school as a house of worship. )6 3 A. 4 The prohibition against using school facilities for the conduct of religious worship 5 services bars a type of activity. It does not discriminate against any point of view. The conduct 6 of religious worship services, which the rule excludes, is something quite different from free 7 expression of a religious point of view, which the Board does not prohibit. The conduct of 8 services is the performance of an event or activity. While the conduct of religious services 9 undoubtedly includes expressions of a religious point of view, it is not the expression of that 10 point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion 11 to God, and the singing of hymns, whether done by a person or a group, do not constitute the 12 conduct of worship services. Those activities are not excluded. Indeed SOP § 5.11 expressly 13 specifies that permits will be granted to student religious clubs on the same basis that they are 14 granted to other clubs for students. The branch of the rule excluding religious worship services, 15 as we understand it, is designed by the Board to permit use of the school facilities for all of the 16 types of activities considered by the Supreme Court in Good News Club, Lamb s Chapel v. 17 Center Moriches Union Free School District, 508 U.S. 384 (1993), and Rosenberger v. Rector & 18 Visitors of the University of Virginia, 515 U.S. 819, 830 (1995). The religious worship 6 Nor does this opinion express any views as to whether worship may be lawfully excluded. Judge Walker criticizes this opinion for declining even to consider the constitutionality of the second branch of SOP § 5.11, which prohibits using a school as a house of a worship. Dissenting Op. 3. Because this opinion concludes that the Board s rejection of Bronx Household s application was lawful under the religious worship services branch of the rule, further inquiry into the whether the Board could also lawfully exclude Bronx Household under the house of worship branch of the rule is unnecessary to this ruling. 10 1 services clause does not purport to prohibit use of the facility by a person or group of persons 2 for worship. What is prohibited by this clause is solely the conduct of a particular type of 3 event: a collective activity characteristically done according to an order prescribed by and under 4 the auspices of an organized religion, typically but not necessarily conducted by an ordained 5 official of the religion. The conduct of a religious worship service has the effect of placing 6 centrally, and perhaps even of establishing, the religion in the school.7 7 There is an important difference between excluding the conduct of an event or activity 8 that includes expression of a point of view, and excluding the expression of that point of view. 9 Under rules consistent with the purposes of the forum, schools may exclude from their facilities 10 all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even 7 Judge Walker complains that our understanding of the meaning of the term religious worship services is self-styled. Dissenting Op. 8. We have not found in any dictionary a definition of the compound term religious worship services. Dictionaries define the verb to worship as to honor or reverence as a divine being or supernatural power: VENERATE. Webster s Third New International Dictionary 2637 (1976); see also Oxford English Dictionary (Nov. 2010 online ed.), (same). Worship, the noun, is defined as an act, process, or instance of expressing such veneration by performing or taking part in religious exercises or ritual, and a form or type of worship or religious practice with its creed or ritual. Webster s Third New International Dictionary 2637. The word service is defined as [w]orship; esp. public worship according to form and order, [a] ritual or series of words and ceremonies prescribed for public worship, Oxford English Dictionary (Nov. 2010 online ed.), and the performance of religious worship esp. according to settled public forms or conventions, Webster s Third New International Dictionary 2075. 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. 11 1 though, by participating in and viewing such events, participants and spectators may express 2 their love of them. The basis for the lawful exclusion of such activities is not viewpoint 3 discrimination, but rather the objective of avoiding either harm to persons or property, or 4 liability, or a mess, which those activities may produce. We think it beyond dispute that a 5 school s decision to exclude martial arts matches would be lawful notwithstanding the honest 6 claim of would-be participants that, through participating in the matches, they express their love 7 of the sport and their character. The exclusion would nonetheless not represent viewpoint 8 discrimination. While a school may prohibit the use of its facilities for such activities for valid 9 reasons, it may not selectively exclude meetings that would celebrate martial arts, cow breeding, 10 or horseback riding, because that would be viewpoint discrimination. When there exists a 11 reasonable basis for excluding a type of activity or event in order to preserve the purposes of the 12 forum, such content-based exclusion survives First Amendment challenge notwithstanding that 13 participants might use the event to express their celebration of the activity. See Rosenberger, 14 515 U.S. at 829-30. 15 Similarly, SOP § 5.11 prohibits use of school facilities to conduct worship services, but 16 does not exclude religious groups from using schools for prayer, singing hymns, religious 17 instruction, expression of religious devotion, or the discussion of issues from a religious point of 18 view. While it is true without question that religious worship services include such expressions 19 of points of view, the fact that a reasonably excluded activity includes expressions of viewpoints 20 does not render the exclusion of the activity unconstitutional if adherents are free to use the 21 school facilities for expression of those viewpoints in all ways except through the reasonably 22 excluded activity. Under at least this branch of SOP § 5.11, the schools are freely available for 23 use by groups to express religious devotion through prayer, singing of hymns, preaching, and 12 1 teaching of scripture or doctrine. It is only the performance of a worship service that is 2 excluded. 3 Nor is this rule of exclusion vulnerable on the ground that the activity excluded has some 4 similarities to another activity that is allowed. To begin with, we reject the suggestion that 5 because a religious worship service shares some features with activities such as a Boy Scout 6 meeting, no meaningful distinction can be drawn between the two types of activities. See 7 Dissenting Op. 11-12. Boy Scout meetings are not religious worship services. The fact that 8 religion often encompasses concern for standards of conduct in human relations does not mean 9 that all activity which expresses concern for standards of conduct in human relations must be 10 11 deemed religion. The argument might be made that, because the rule prohibits use of facilities for 12 religious worship services, it excludes religious worship services while permitting non- 13 religious worship services. This argument is a canard. The presence of the word religious in 14 the phrase is superfluous and does not change the meaning. There is no difference in usage 15 between a worship service and a religious worship service; both refer to a service of 16 religious worship. See Bronx Household I, 127 F.3d at 221 (Cabranes, J., concurring in part and 17 dissenting in part) ( Unlike religious instruction, there is no real secular analogue to religious 18 services, such that a ban on religious services might pose a substantial threat of viewpoint 19 discrimination between religion and secularism. ). We think, with confidence, that if 100 20 randomly selected people were polled as to whether they attend worship services, all of them 21 would understand the questioner to be inquiring whether they attended services of religious 22 worship. While it is true that the word worship is occasionally used in nonreligious contexts, 23 such as to describe a miser, who is said to worship money, or a fan who worships a movie 13 1 star,8 the term worship services has no similar use; meetings of a celebrity s fan club are not 2 described as worship services. Worship services are religious; the rule describes the entire 3 category of activity excluded. The meaning of the rule s exclusion of religious worship 4 services would be no different if it identified the excluded activity as worship services. 5 The application of SOP § 5.11 to deny Bronx Household s request to use school facilities 6 for worship services is thus in no way incompatible with the Supreme Court s decisions in Good 7 News Club, Lamb s Chapel, and Rosenberger. In Good News Club, a school district had invoked 8 a policy prohibiting after-hours use of a school for religious purposes to deny a Christian 9 organization permission to use space in a school building for religious instruction of children 10 aged 6 to 12. 533 U.S. at 103-04. The Supreme Court ruled that this exclusion violated the Free 11 Speech Clause. Id. at 120. The denial constituted viewpoint discrimination, rather than content- 12 based restriction, because the school district refused to allow the teaching of moral lessons from 13 a religious perspective, while permitting the teaching of moral lessons from a secular 14 perspective. Id. at 107-08. 15 Similarly, in Lamb s Chapel, the Court found unconstitutional a school district s 16 rejection of a church s request to show a Christian film series about child rearing and family 17 values, again on the basis of a policy prohibiting after-hours use of school property for religious 18 purposes. Lamb s Chapel, 508 U.S. at 387-89, 393. Like the moral lessons taught in the Good 19 News Club, the film series dealt with a subject otherwise permissible . . . [but] its exhibition 8 In the view of the author, such uses of the word are metaphorical. A statement that someone worships money or worships a movie star is intended to be understood as an assertion that the subject treats money or the movie star with the same devotion or reverence that a religious believer accords to God. (Judge Calabresi leaves open the question whether such statements are purely metaphorical or whether they too describe a form of worship. See Concurring Op. 1.) 14 1 was denied solely because the series dealt with the subject from a religious standpoint. Id. at 2 394. And in Rosenberger, the Court concluded that the University of Virginia discriminated on 3 the basis of viewpoint, when, in accordance with its policy, it refused to reimburse the printing 4 expenses of a student newspaper with a Christian editorial perspective because the publication 5 promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality. 6 Rosenberger, 515 U.S. at 827, 831-32. Because the University s refusal resulted from the 7 newspaper s prohibited perspective, not the general subject matter, it violated the Free Speech 8 Clause. Id. at 831. 9 In each of those cases, the policy being enforced categorically excluded expressions of 10 religious content. Here, by contrast, there is no restraint on the free expression of any point of 11 view. Expression of all points of view is permitted. The exclusion applies only to the conduct of 12 a certain type of activity the conduct of worship services and not to the free expression of 13 religious views associated with it. It is clear that the Board changed its rule in order to conform 14 to the dictates of Good News Club, abandoning the prohibition of religious instruction (which 15 involved viewpoint discrimination). Indeed, SOP § 5.11 expressly permits use of school 16 facilities by religious clubs for students that are sponsored by outside organizations on the 17 same basis as other clubs for students sponsored by outside organizations. 18 Accordingly, as SOP § 5.11's prohibition of religious worship services does not 19 constitute viewpoint discrimination, it is a content-based exclusion, which passes constitutional 20 muster so long as the exclusion is reasonable in light of the purposes of the forum. 15 1 B. 2 We therefore go on to consider whether this exclusion is reasonable in light of the 3 purpose served by the forum. Rosenberger, 515 U.S. at 829 (quoting Cornelius v. NAACP 4 Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)). Precedent, furthermore, calls for 5 giving appropriate regard to the Board s judgment as to which activities are compatible with 6 its reasons for opening schools to public use. Christian Legal Soc y, 130 S. Ct. at 2989. By 7 excluding religious worship services, the Board seeks to steer clear of violating the 8 Establishment Clause. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761- 9 62 (1995) ( There is no doubt that compliance with the Establishment Clause is a state interest 10 sufficiently compelling to justify content-based restrictions on speech. ); Widmar v. Vincent, 454 11 U.S. 263, 271 (1981) (noting that an interest in avoiding a violation of the Establishment Clause 12 may be characterized as compelling ). In order to determine whether the content restriction for 13 this purpose is reasonable and thus permissible, we need not decide whether use of the school for 14 worship services would in fact violate the Establishment Clause, a question as to which 15 reasonable arguments could be made either way, and on which no determinative ruling exists. It 16 is sufficient if the Board has a strong basis for concern that permitting use of a public school for 17 the conduct of religious worship services would violate the Establishment Clause. Marchi v. Bd. 18 of Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d Cir. 1999) ( [W]hen government 19 endeavors to police itself and its employees in an effort to avoid transgressing Establishment 20 Clause limits, it must be accorded some leeway, even though the conduct it forbids might not 21 inevitably be determined to violate the Establishment Clause . . . . ); cf. Ricci v. DeStefano, 129 22 S. Ct. 2658, 2677 (2009) (race-based employment action violates Title VII unless the employer 23 has a strong basis to believe it otherwise will be subject to disparate impact liability). We 16 1 conclude that the Board has a strong basis to believe that allowing the conduct of religious 2 worship services in schools would give rise to a sufficient appearance of endorsement to 3 constitute a violation of the Establishment Clause. 4 The Supreme Court s decision in Lemon v. Kurtzmann, 403 U.S. 602 (1971), provides the 5 framework for evaluating challenges under the Establishment Clause.9 The Court instructed in 6 Lemon that government action which interacts with religion (1) must have a secular . . . 7 purpose, (2) must have a principal or primary effect . . . that neither advances nor inhibits 8 religion, and (3) must not foster an excessive government entanglement with religion. Id. at 9 612-13 (internal quotation marks omitted). In discussing the second prong of the Lemon test, the 10 Supreme Court has warned that violation of the Establishment Clause can result from perception 11 of endorsement. The Establishment Clause, at the very least, prohibits government from 12 appearing to take a position on questions of religious belief or from making adherence to a 13 religion relevant in any way to a person s standing in the political community. Cnty. of 14 Allegheny, 492 U.S 573, 593-94 (1989) (emphasis added) (quoting Lynch v. Donnelly, 465 U.S. 15 668, 687 (O Connor, J., concurring)); see also Lynch, 465 U.S. at 690 (O Connor, J., concurring) 16 (observing that the second prong of the Lemon test asks whether, irrespective of government s 17 actual purpose, the practice under review in fact conveys a message of endorsement or 18 disapproval ); Skoros, 437 F.3d at 17-18. It was certainly not unreasonable for the Board to 19 conclude that permitting the conduct of religious worship services in the schools might fail the 9 Although the Lemon test has been much criticized, the Supreme Court has declined to disavow it and it continues to govern the analysis of Establishment Clause claims in this Circuit. Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 634 (2d Cir. 2005); see Skoros v. City of New York, 437 F.3d 1, 17 n.13 (2d Cir. 2006) (noting that this Court is required to respect precedent applying the Lemon test until it is reconsidered by this court sitting en banc or is rejected by a later Supreme Court decision ). 17 1 second and third prongs of the Lemon test, and that the adoption of the worship services 2 branch of SOP § 5.11 was a reasonable means of avoiding a violation of the Establishment 3 Clause. 4 The performance of worship services is a core event in organized religion. See Bronx 5 Household, 226 F. Supp. 2d at 410 (quoting Pastor Hall describing Bronx Household s Sunday 6 worship service as the indispensable integration point for our church ); Mark Chaves, 7 Congregations in America 227 (2004) (reporting results of survey finding that 99.3% of religious 8 congregations hold services at least once per week). Religious worship services are conducted 9 according to the rules dictated by the particular religious establishment and are generally 10 performed by an officiant of the church or religion. When worship services are performed in a 11 place, the nature of the site changes. The site is no longer simply a room in a school being used 12 temporarily for some activity. The church has made the school the place for the performance of 13 its rites, and might well appear to have established itself there. The place has, at least for a time, 14 become the church. 15 Moreover, the Board s concern that it would be substantially subsidizing churches if it 16 opened schools for religious worship services is reasonable. The Board neither charges rent for 17 use of its space, nor exacts a fee to cover utilities such as electricity, gas, and air conditioning.10 18 The City thus foots a major portion of the costs of the operation of a church. It is reasonable for 19 the Board to fear that allowing schools to be converted into churches, at public expense and in 20 public buildings, might foster an excessive government entanglement with religion that 21 advances religion. See DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 419 (2d Cir. 10 The only fee charged is for the partial cost of custodial work, and for security services when provided by the Board. 18 1 2001) (concluding that a publicly funded private hospital whose employees coerced patients to 2 participate in a religious support group would violate the Establishment Clause, noting that the 3 Supreme Court s decisions provide no precedent for the use of public funds to finance 4 religious activities, and that neutral administration of the state aid program . . . is an 5 insufficient constitutional counterweight to the direct public funding of religious activities 6 (quoting Mitchell v. Helms, 530 U.S. 793, 840 (2000) (O Connor, J., concurring in the 7 judgment))). 8 The Board could also reasonably worry that the regular, long-term conversion of schools 9 into state-subsidized churches on Sundays would violate the Establishment Clause by reason of 10 public perception of endorsement. Cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132 11 (2009) (ruling that monument in public park was properly viewed as government speech 12 because, among other reasons, the monument was permanent). Such a concern has been 13 vindicated by the experience in the schools in the seven years since the district court granted the 14 preliminary injunction. For example, Bronx Household has held its worship services at P.S. 15, 15 and nowhere else, every Sunday since 2002. Under the injunction, at least twenty-one other 16 congregations have used a school building on Sundays as their regular place for worship 17 services.11 During these Sunday services, the schools are dominated by church use. See Capitol 18 Square, 515 U.S. at 777 (O Connor, J., concurring in part and concurring in the judgment) ( At 19 some point . . . a private religious group may so dominate a public forum that a formal policy of 20 equal access is transformed into a demonstration of approval. ). Because of their large 11 The record in this regard has not been updated since 2005. At oral argument, counsel for the Board told us that the number of churches using schools for worship services has increased substantially since that time. 19 1 congregations, churches generally use the largest room in the building, or multiple rooms, 2 sometimes for the entire day. See Cnty. of Allegheny, 492 U.S. at 579, 599-600 (finding 3 unconstitutional endorsement of religion where crèche was placed on the Grand Staircase of 4 courthouse, the main and most public part of the building, which was not available to other 5 displays simultaneously). Church members post signs, distribute flyers, and proselytize outside 6 the school buildings. In some schools, no other outside organizations use the space. 7 Accordingly, on Sundays, some schools effectively become churches. As a result of this church 8 domination of the space, both church congregants and members of the public identify the 9 churches with the schools. The possibility of perceived endorsement is made particularly acute 10 by the fact that P.S. 15 and other schools used by churches are attended by young and 11 impressionable students, who might easily mistake the consequences of a neutral policy for 12 endorsement. Cf. Van Orden v. Perry, 545 U.S. 677, 703 (2005) (Breyer, J., concurring) 13 (distinguishing lawful display of Ten Commandments from cases in which display was on the 14 grounds of a public school, where, given the impressionability of the young, government must 15 exercise particular care in separating church and state ); Skoros, 437 F.3d at 24-25 ( A mature 16 reasonable objective observer . . . would take into consideration that schoolchildren are the 17 intended audience for the displays, that these children are being reared in a variety of faiths (as 18 well as none), and that, by virtue of their ages, they may be especially susceptible to any 19 religious messages conveyed by such displays. ).12 12 The dissent maintains that Good News Club precludes the Board from relying on this concern, because the facts of this case present less reason to fear the appearance of endorsement than those of Good News Club. Dissenting Op. 22-23. We disagree with this assessment of the facts. In our view, Bronx Household s long-term weekly use of P.S. 15 for Christian worship services at the Board s expense, and the effective exclusion of competing religious groups who would wish to hold services in schools on days other than Sunday but are effectively precluded 20 1 Furthermore, the fact that school facilities are principally available for public use on 2 Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as 3 the principal day for worship services. Jews and Muslims generally cannot use school facilities 4 for their services because the facilities are often unavailable on the days that their religions 5 principally prescribe for services. At least one request to hold Jewish services (in a school 6 building used for Christian services on Sundays) was denied because the building was 7 unavailable on Saturdays. This contributes to a perception of public schools as Christian 8 churches, but not synagogues or mosques. 9 Finally, the religious services Bronx Household conducts in the school are not open on 10 uniform terms to the general public. Bronx Household acknowledges that it excludes persons 11 not baptized, as well as persons who have been excommunicated or who advocate the Islamic 12 religion, from full participation in its services. See Bronx Household III, 492 F.3d at 120 (Leval, 13 J., concurring); cf. Christian Legal Soc y, 130 S. Ct. at 2995 (upholding university s denial of 14 Registered Student Organization status to student group that refused to comply with non- 15 discrimination policy for ideological reasons). The de facto favoritism of the Christian (Sunday 16 service) religions over others, as well as the deliberate exclusion practiced by Bronx Household, 17 aggravates the potential Establishment Clause problems the Board seeks to avoid. 18 In the end, we think the Board could have reasonably concluded that what the public 19 would see, were the Board not to exclude religious worship services, is public schools, which 20 serve on Sundays as state-sponsored Christian churches. For these reasons, the Board had a by school-related activities from doing so, provides a substantially stronger basis for fearing an Establishment Clause violation than the after-school use of a single classroom by a religious group at issue in Good News Club. 21 1 strong basis to be wary that permitting religious worship services in schools, and thus effectively 2 allowing schools to be converted into churches on Sunday, would be found to violate the 3 Establishment Clause. To reiterate, we do not say that a violation has occurred, or would occur 4 but for the policy. We do find, however, that it was objectively reasonable for the Board to 5 worry that use of the City s schools for religious worship services, conducted primarily on 6 Sunday when the schools are most available to outside groups, exposes the City to a substantial 7 risk of being found to have violated the Establishment Clause. 8 This conclusion is not, as the dissent maintains, foreclosed by the Supreme Court s 9 precedents. We recognize that in Good News Club, Widmar, Lamb s Chapel, and Rosenberger, 10 the Supreme Court rejected arguments that the rules in question, and their application to bar or 11 disfavor particular activities, were justified by concern to avoid violating the Establishment 12 Clause. But those rulings were based on their particular facts, which are significantly different 13 from those here. In none of those cases did the Supreme Court suggest that a reasonable concern 14 to avoid violation of the Establishment Clause can never justify a governmental exclusion of a 15 religious practice. In arguing that the Supreme Court s precedents forbid our ruling, the dissent 16 relies on broad statements of principle, often from opinions that did not command a majority of 17 the Court, and contends that, taken together, they show the invalidity of the reasons the Board 18 proffers for fearing an Establishment Clause violation. However, neither the Supreme Court nor 19 this court has considered the constitutionality of a policy that allows the regular use of public 20 schools for religious worship services. Indeed, the Court in Good News Club expressly declined 21 to address the lawfulness of a policy that excludes mere religious worship, a category of 22 activity which is substantially broader than the religious worship services covered by the first 23 branch of SOP § 5.11. Good News Club, 533 U.S. at 112 n.4. 22 1 In any event, the reasonableness of the Board s concern to avoid creating a perception of 2 endorsement resulting from regular Sunday conversion of schools into Christian churches, 3 together with the absence of viewpoint-based discrimination, distinguishes this case from the 4 Supreme Court s precedents striking down prohibitions of the use of educational facilities or 5 funds by religious groups. All of those cases involved rules or policies which broadly 6 suppressed religious viewpoints and which, in their particular applications, disfavored activities 7 which had far less potential to convey the appearance of official endorsement of religion. In 8 Widmar, the challenged policy prohibited the use of university facilities for religious worship or 9 even discussion. In Rosenberger, the challenged policy prohibited the reimbursement of 10 expenses incurred by university student groups for activities that primarily promote[d] or 11 manifest[ed] a particular belie[f] in or about a deity or an ultimate reality. 515 U.S. at 825. 12 And in Lamb s Chapel and Good News Club, the challenged policies prohibited the use of school 13 district property for any and all religious purposes. See Good News Club, 533 U.S. at 103; 14 Lamb s Chapel, 508 U.S. 387. In each case, the policy being enforced, unlike SOP § 5.11, was 15 broadly categorical in its exclusion of religious content. In addition, the activities disallowed or 16 disfavored under those policies meetings of Christian clubs for students (in Widmar and Good 17 News Club), the publication of a newspaper with a Christian editorial viewpoint (in 18 Rosenberger), and the showing of a Christian film series (in Lamb s Chapel) were much less 19 likely than the conduct of Sunday worship services to evoke an appearance of endorsement of 20 religion by public school authorities. In determining that there was no danger of an 21 Establishment Clause violation in these cases, the Supreme Court relied on the fact that facilities 22 and funds were available to and used by numerous and diverse private groups. See Lamb s 23 Chapel, 508 U.S. at 395 (observing that school district s property had repeatedly been used by a 23 1 wide variety of private organizations ); Rosenberger, 515 U.S. at 842 (student activity funds 2 were distributed to a wide spectrum of student groups ); Widmar, 454 U.S. at 277 (university 3 provided benefits to over 100 student groups of all types ); Good News Club, 533 U.S. at 113 4 (district made its forum available to other organizations ). In finding insufficient risk of the 5 perception of endorsement, the Court observed in Widmar that university students are young 6 adults, who are less impressionable than younger students and can therefore appreciate that a 7 policy permitting religious student groups to use meeting space on the same basis as other types 8 of student groups was neutral toward religion. 454 U.S. at 275-75 & n.14. And in Lamb s 9 Chapel and Good News Club, the Court found it significant that the proposed film exhibition and 10 club meetings would be open to the public, not just to the members of the Christian groups 11 sponsoring the events. See Good News Club, 533 U.S. at 113; Lamb s Chapel, 508 U.S. at 395. 12 The use of P.S. 15 and other schools for Sunday worship services is more likely to 13 promote a perception of endorsement than the uses in those cases. A worship service is an act of 14 organized religion that consecrates the place in which it is performed, making it a church. 15 Unlike the groups seeking access in those cases, Bronx Household and the other churches that 16 have been allowed access under the injunction tend to dominate the schools on the day they use 17 them. They do not use a single, small classroom, and are not merely one of various types of 18 groups using the schools; they use the largest rooms and are typically the only outside group 19 using a school on Sunday. They identify the schools as their churches, as do many residents of 20 the community. The students of P.S. 15 are not the young adults of Rosenberger and Widmar, 21 but young children who are less likely to understand that the church in their school is not 22 endorsed by their school. The fact that New York City s school facilities are more available on 23 Sundays than any other day of the week means that there is a de facto bias in favor of Christian 24 1 groups who want to use the schools for worship services, compounded by the exclusionary 2 practices of churches like Bronx Household. 3 Furthermore, the Board s prohibition on the use of school facilities for religious worship 4 services is far less broad than the exclusions of use for religious purposes or religious 5 discussion in the earlier cases, which included in their sweep activities that are similar to 6 secular activities. The broad scope of the exclusions considered in the other cases resulted in 7 viewpoint discrimination, rather than mere content restriction. The exclusions also disfavored 8 more religious activity than necessary to avoid an actual Establishment Clause violation. In 9 contrast, the religious worship services clause of SOP § 5.11 is narrowly drawn to exclude a 10 core activity in the establishment of religion worship services and thereby avoid the 11 perceived transformation of school buildings into churches. 12 It is not our contention that the Supreme Court s precedents compel our conclusion. On 13 the other hand, we cannot accept Judge Walker s contention that the Court has effectively 14 decided this case. This case is terra incognita. The Supreme Court s precedents provide no 15 secure guidelines as to how it should be decided. The main lesson that can be derived from them 16 is that they do not supply an answer to the case before us. Precedent provides no way of 17 guessing how the Supreme Court will rule when it comes to consider facts comparable to these. 18 By hunting and pecking through the dicta of various opinions, one can find snippets that 19 arguably support a prediction either way. Judge Calabresi and I believe that the Board s 20 exclusion of Bronx Household s conduct of worship services is viewpoint-neutral and justified 21 by the Board s reasonable concern that permitting use of school facilities for worship services 22 would violate the Establishment Clause. 23 * * 25 * 1 Bronx Household contends that SOP § 5.11 is not a measure reasonably designed to 2 avoid an Establishment Clause violation but is instead itself a violation of that clause. Bronx 3 Household argues that SOP § 5.11 fails the Lemon test because it sends a message of official 4 hostility to religion and because its enforcement fosters excessive government entanglement with 5 religion. We are not persuaded. 6 As emphasized above, SOP § 5.11 prohibits worship services in schools, but permits the 7 expression of religious points of view through activities such as prayer, singing of hymns, 8 preaching, and teaching or discussion of doctrine or scripture. Given the broad range of 9 expressive religious activity that the policy does allow, we do not think a reasonable observer 10 11 would perceive hostility to religion in the enforcement of SOP § 5.11. Bronx Household also argues that SOP § 5.11 not only conveys the appearance of official 12 hostility, but is in fact motivated by such hostility. We find no basis for this contention. Of 13 course, government must abstain from regulating speech when the specific motivating ideology 14 or the opinion or perspective of the speaker is the rationale for the restriction. Rosenberger, 15 515 U.S. at 829. However, we do not understand why Bronx Household attributes the Board s 16 position to hostility rather than a good faith desire to navigate successfully through the poorly 17 marked, and rapidly changing, channel between the Scylla of viewpoint discrimination and the 18 Charybdis of violation of the Establishment Clause. 19 The Board has by no means been alone in the belief that the Establishment Clause 20 requires governmental educational institutions to be cautious of harboring or sponsoring 21 religious activities. The Supreme Court s rulings in Rosenberger, Lamb s Chapel, and Good 22 News Club deviated from a previously widespread governmental and judicial perception of the 23 scope of the Establishment Clause s prohibitions. In each of those three cases, the school 26 1 administrators and the lower court judges believed that the challenged policies, which were 2 intended to keep religion at a distance from public institutions, were mandated by the 3 Establishment Clause, or at least consistent with the Constitution. And in two of the cases, a 4 number of Supreme Court justices did as well. 5 There is no better reason to believe, as Bronx Household suggests, that the Board was 6 motivated by hostility toward religion than there is to believe that such hostility has motivated 7 other school authorities throughout the country, the lower court judges and dissenting Supreme 8 Court justices in Lamb s Chapel, Rosenberger, and Good News Club, or Judge Calabresi and me. 9 We see no sound basis for concluding that the Board s actions have been motivated by anything 10 other than a desire to find the proper balance between two clauses of the First Amendment, the 11 interpretation of which by the Supreme Court has been in flux and uncertain.13 12 Bronx Household also argues that SOP § 5.11 cannot be applied without 13 unconstitutionally entangling the Board in matters of religious doctrine. See Agostini v. Felton, 14 521 U.S. 203, 232-33 (1997). According to Bronx Household, any attempt by the Board to 15 distinguish between religious activity that falls under the exclusion of worship services, and 16 religious activity that does not, necessarily places the Board in violation of the duty imposed by 17 Lemon to avoid excessive government entanglement with religion. 403 U.S. at 613.14 13 Judge Walker similarly asserted in his dissent in Bronx Household III that the Board s adoption of SOP § 5.11 was motivated by long-standing hostility to religious groups. See Bronx Household III, 492 F.3d at 127 ( The Board s avowed purposed in enforcing the regulation in this case . . . and its long-standing hostility to religious groups, leads ineluctably to the conclusion that the Board, in fact, has undertaken to exclude a particular viewpoint from its property. ). Judge Walker has not repeated that assertion in his present opinion, but neither has he retracted it. 14 Judge Walker has also made this argument. See Bronx Household III, 492 F.3d at 131 (Walker, J., dissenting) (arguing that the Board would flout[] the Establishment Clause by trying to distinguish worship because it would no doubt have to interpret religious doctrine or 27 1 To begin with, whatever merit this argument may have in other types of cases, we do not 2 see what application it has here. Bronx Household does not contest that it conducts religious 3 worship services. To the contrary, it applied for a permit to conduct Christian worship 4 services, and the evidence suggests no reason to question its own characterization of its 5 activities. Cf. Christian Legal Soc y, 130 S. Ct. at 2982-84; Faith Ctr. Church Evangelistic 6 Ministries v. Glover, 480 F.3d 891, 918 & n.18 (9th Cir. 2007), abrogated on other grounds by 7 Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008). 8 This argument, furthermore, overlooks the nature of the duties placed on government 9 officials by the Establishment Clause (as well as the Free Exercise of Religion Clause). As we 10 outlined above, while other clauses of the First Amendment prohibit government officials from 11 discriminating on the basis of religious viewpoint, the Establishment Clause prohibits them from 12 taking action that would constitute establishment of religion. In various circumstances, 13 especially when dealing with initiatives for the conduct of undoubtedly religious exercises on 14 public property, government officials cannot discharge their constitutional obligations without 15 close examination of the particular conduct to determine if it is properly deemed to be religious 16 and if so whether allowing it would constitute a prohibited establishment of religion. Bronx 17 Household s argument, if valid, would effectively nullify the Establishment Clause.15 18 Without doubt there are circumstances where a government official s involvement in defer to the interpretations of religious officials in order to keep worship, and worship alone, out of its schools (internal quotation marks omitted)). 15 The Free Exercise of Religion Clause also at times compels government officials to examine conduct of an undoubtedly religious nature to determine whether it constitutes exercise of religion, and is thus entitled to the clause s protection, or does not, and is thus subject to regulation. 28 1 matters of religious doctrine constitutes excessive government entanglement. See, e.g., 2 Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 427 (2d Cir. 2002). But it 3 does not follow, as Bronx Household seems to argue, that the mere act of inspection of religious 4 conduct is an excessive entanglement. The Constitution, far from forbidding government 5 examination of assertedly religious conduct, at times compels government officials to undertake 6 such inquiry in order to draw necessary distinctions.16 See Lee v. Weisman, 505 U.S. 577, 598 7 (1992) ( Our jurisprudence in this area is of necessity one of line-drawing, of determining at 8 what point a dissenter s rights of religious freedom are infringed by the State. ); Cnty. of 9 Allegheny, 492 U.S. at 630 (O Connor, J., concurring in part and concurring in the judgment) 10 ( We cannot avoid the obligation to draw lines, often close and difficult lines, in deciding 11 Establishment Clause cases . . . . ). It was just such inspection which permitted the Supreme 12 Court to allow the display of arguably religious symbols in certain public contexts while 13 prohibiting it in others. Compare Van Orden, 545 U.S. at 703 (Breyer, J., concurring), and Cnty. 14 of Allegheny, 492 U.S. at 620, with McCreary, 545 U.S. at 881, and Cnty. of Allegheny, 492 U.S. 15 at 601-02. 16 17 18 19 20 C. 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 16 Applying such a rule would, for example, mean that every claim of entitlement under the Religious Land Use and Institutionalized Persons Act (RLIUPA), 42 U.S.C. § 2000cc et seq., would be immune from court inquiry into whether the use is in fact a religious use. 29 1 discriminates illegally on the basis of viewpoint. See Dissenting Op. 10 ( The Board cannot 2 lawfully exclude the conduct of an event based solely on the religious viewpoints expressed 3 during the event. ). He concludes that there is no doubt that it is religious services and 4 worship that the Board is targeting for exclusion because [t]he Board is otherwise 5 unconcerned with comparable ceremonial speech occurring on school premises. Dissenting Op. 6 9. According to his analysis, the governing test should be whether Bronx Household is 7 engaging in speech that fulfills the purposes of the forum and is consistent with non-religious 8 speech occurring on school premises. Dissenting Op. 9. If Bronx Household is engaging in 9 such speech and is excluded because of the religious nature of its activity, the exclusion is 10 11 necessarily illegal viewpoint discrimination. The problem we find with Judge Walker s analysis is that it either ignores the crucial role 12 of the Establishment Clause in motivating the Board s decision or it simply reads that clause out 13 of the Constitution. The general effect of the Establishment Clause is to prohibit government 14 from taking actions which have the effect of establishing religion. Assuming that the 15 Establishment Clause has some meaning that is to say, assuming there are some forms of 16 activity which government may not conduct (or may not permit) by reason of the Establishment 17 Clause any such prohibitions necessarily depend on the religious nature of the particular 18 activity. If the activity is not of religious nature, it does not fall within the purview of the 19 Establishment Clause. 20 This feature is evident throughout the Supreme Court s Establishment Clause 21 jurisprudence. In Lee v. Weisman, 505 U.S. 577 (1992), for example, the Supreme Court held 22 that the Establishment Clause prohibited a public high school from including the recitation of a 23 prayer in its graduation ceremony. The prayer was unquestionably an expressive act, and the 30 1 prohibition by the Court under the Establishment Clause unquestionably depended on the 2 religious nature of prayer. Had the school administration sought to include instead of a prayer a 3 non-religious affirmation of patriotism, or of love of learning, that would not have been 4 prohibited by the Establishment Clause. 5 In County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Court held that the 6 Establishment Clause prohibited the display of a crèche in the Grand Staircase of the Allegheny 7 County Courthouse, but upheld against Establishment Clause challenge another display which 8 included an 18-foot menorah, a 45-foot Christmas tree, and a sign declaring devotion to liberty. 9 Both displays conveyed an expressive message. What distinguished them was the fact that the 10 crèche sent an unmistakable message that [the county] supports and promotes the Christian 11 praise to God, id. at 600, while the menorah, tree, and sign celebrated the holiday season on a 12 non-sectarian basis, id. at 617-18. 13 In the companion cases of McCreary County v. ACLU, 545 U.S. 844 (2005), and Van 14 Orden v. Perry, 545 U.S. 677 (2005), the Court distinguished between two public displays of the 15 Ten Commandments based on whether they conveyed a message of governmental support or 16 endorsement of religion. In McCreary, the Court upheld an injunction prohibiting a display of 17 the Ten Commandments in two courthouses, because the displays had a predominantly religious 18 purpose. McCreary, 545 U.S. at 881. By contrast, Justice Breyer s controlling opinion in Van 19 Orden found that the display of the Ten Commandments in the Texas State Capitol did not 20 violate the Establishment Clause because, when viewed in context, it conveyed a predominantly 21 secular message of the importance of law. Van Orden, 545 U.S. at 701-02 (Breyer, J., 22 concurring). The religious (or non-religious) nature of the two displays again determined 23 whether their presence on public property was lawful. 31 1 In light of such decisions, Judge Walker s view of the question seems to us not 2 compatible with the Establishment Clause. Inevitably, whatever expressive conduct is 3 prohibited by the Establishment Clause is prohibited by reason of its religious nature and would 4 not be prohibited if what it expressed were not related to religion. 5 We do not suggest for a moment that any and all expressive activity with religious 6 content must be excluded from government property or from government-controlled enterprise, 7 such as the administration of a school system. The Supreme Court has unquestionably ruled 8 otherwise in Rosenberger, Good News Club, and other cases. Our point is only that the test 9 cannot be as Judge Walker views it. The mere fact that government does not permit an 10 expressive activity, which it would permit if the activity were not religious, does not compel the 11 conclusion that it is engaging in unconstitutional viewpoint discrimination. Whatever forms of 12 governmental action are prohibited by the Establishment Clause are prohibited in part because of 13 their religious nature and would not be prohibited if they were not religious. 14 Where government excludes a category of activity involving religious expression out of 15 concern for the limitations imposed on government by the Establishment Clause, the lawfulness 16 of the exclusion (notwithstanding that the religious content motivates the exclusion) will turn on 17 whether allowing the activity would either violate the Establishment Clause or place the 18 government entity at a reasonably perceived risk of violating the Establishment Clause. The 19 Supreme Court has never ruled on whether permitting the regular conduct of religious worship 20 services in public schools constitutes a violation of the Establishment Clause, and we reach no 21 conclusion on that question. As discussed above, considering all the circumstances, we think the 22 risk that permitting the regular conduct of worship services in public schools would violate the 23 Establishment Clause is sufficiently high to justify the Board s adoption of a content restriction 32 1 that prohibits the performance of such services but does not otherwise limit the expression of 2 religious viewpoints. 3 2) Judge Walker maintains that our ruling approves the exclusion of the very sort of 4 conduct that the Supreme Court ruled in Good News Club could not be excluded. Dissenting Op. 5 10. We respectfully disagree. The application of the Good News Club, which the school district 6 denied, was for a Christian group to hold after-school meetings for children between the ages of 7 six and twelve, where they would have a fun time of singing songs, hearing a Bible lesson and 8 memorizing scripture. Good News Club, 533 U.S. at 103. The club later gave an expanded 9 description by letter to the effect that 10 11 12 13 14 15 16 Ms. Fournier tak[es] attendance. As she calls a child s name, if the child recites a Bible verse the child receives a treat. After attendance, the Club sings songs. Next Club members engage in games that involve, inter alia, learning Bible verses. Ms. Fournier then relates a Bible story and explains how it applies to Club members lives. The Club closes with prayer. Finally, Ms. Fournier distributes treats and the Bible verses for memorization. Id. 17 Without doubt there is some overlap between Bronx Household s conduct of Christian 18 worship services and the children s club meetings that were the subject of Good News Club, in 19 that worship services generally include song, prayer, and scripture. Nonetheless, we doubt that 20 objective observers employing ordinary understandings of the English language would describe 21 Ms. Fournier s club meetings as worship services. Judge Walker seeks to discern the meaning of 22 the Supreme Court s majority opinion from the emphatic objections to it expressed in Justice 23 Souter s dissenting opinion. He bases his assertion that the activities of the Good News Club 24 were religious worship services on Justice Souter s dissenting statement that what the majority 25 allowed into a public school was in effect an evangelical service of worship. 533 U.S. at 138. 33 1 It is axiomatic that a dissenting opinion is generally the least reliable place to look to discern the 2 meaning of a majority opinion. Dissenters commonly exaggerate what they see as inevitable, 3 appalling consequences of the majority s ruling, a phenomenon which led Judge Friendly to 4 observe that dissenting opinions are rarely a safe guide to the holding of the majority. United 5 States v. Gorman, 355 F.2d 151, 155 (2d Cir. 1965). Regardless of whether the dissenting 6 justices believed the activities of the Good News Club were equivalent to an evangelical service 7 of worship, there is no indication that the majority shared that view. Indeed, rejecting the 8 argument advanced by the school district in Good News Club that the Club s activities 9 constitute religious worship, the majority expressly noted that the court below had made no 10 such determination, emphasizing that it was not addressing what ruling it would make if the 11 excluded activity were religious worship. Id. at 112 n.4. 12 We do not mean to imply that we think the Supreme Court somehow indicated in Good 13 News Club that it would rule as we do on the exclusion of worship services. Our point is only 14 that the Supreme Court has neither ruled on the question, nor even given any reliable indication 15 of how it would rule. 16 3) Judge Walker argues that we err to the extent that we rely on the heavy predominance 17 of the use of schools for Christian worship services (as opposed to services of other religions) 18 because of the greater availability of the schools on the Christian day of worship. He argues that 19 the greater availability of schools for use by Christian organizations is of no constitutional 20 concern, because [a]n Establishment Clause violation does not result from either private choice 21 or happenstance. Dissenting Op. 24. 22 23 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 34 1 precisely because Sunday is the Christian day of worship the day when schoolchildren were 2 expected to attend church services with their parents. The tradition of closing schools, post 3 offices, courts, and other government buildings on Sunday is no more happenstance than the fact 4 that, until recently, many state laws required businesses to close on Sundays. See Alan Raucher, 5 Sunday Business and the Decline of Sunday Closing Laws: A Historical Overview, 36 J. Church 6 and State 13 (1994). That choice has origins in the government s solicitude for Christianity, in 7 what was once widely viewed as a Christian nation. Holy Trinity Church v. United States, 143 8 U.S. 457, 471 (1892). 9 * * * 10 In rejecting a multitude of Judge Walker s arguments, we do not imply that his 11 conclusion (as to the constitutional invalidity of the religious worship services branch of SOP 12 § 5.11) is frivolous or even necessarily wrong. The Supreme Court s rulings have laid down no 13 principles that compel a decision one way or the other on these facts. Nor has the Supreme 14 Court given any reliable indication of how it will rule if and when it confronts these facts. As 15 Judge Calabresi and I view the facts, the use of New York City public schools for religious 16 worship services with a heavy predominance of Christian worship services because school 17 buildings are most available for non-school use on Sundays would create a very substantial 18 appearance of governmental endorsement of religion and give the Board a strong basis to fear 19 that permitting such use would violate the Establishment Clause. Because the religious worship 20 services clause of SOP § 5.11 is a content restriction that excludes only a type of activity, does 21 so for a reason that is either constitutionally mandated or at least constitutionally reasonable, and 22 does not otherwise curtail free expression of religious viewpoints, we conclude that the 23 restriction does not violate the Constitution. 35 1 2 3 CONCLUSION 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. 36 1 2 CALABRESI, Circuit Judge, concurring: I join Judge Leval s opinion in full because it states a correct alternative ground 3 upon which to decide this case. But I write separately to emphasize that I continue to 4 adhere to the position I took in my earlier opinion in this case, that worship is sui generis. 5 See Bronx Household III, 492 F.3d at 100 (Calabresi, J., concurring). And I especially 6 wish to reaffirm my view there stated: 7 8 9 10 11 Id. at 103. Worship is something entirely different. See id.; see also Bronx Household I, 12 127 F.3d at 221 (Cabranes, J., concurring in part and dissenting in part) ( Unlike 13 religious instruction, there is no real secular analogue to religious services, such that a 14 ban on religious services might pose a substantial threat of viewpoint discrimination 15 between religion and secularism. ). State rules excluding all worship from a limited 16 public forum, therefore, are based on content, not viewpoint. 17 A holding that worship is only an agglomeration of rites would be a judicial finding on the nature of worship that would not only be grievously wrong, but also deeply insulting to persons of faith. In the context of the rule before us, there is one particular problem: the rule seems 18 to prohibit religious worship. See SOP § 5.11 ( No permit shall be granted for the 19 purpose of holding religious worship services . . . . ). And if it be the case that non- 20 religious worship also exists, then the prohibition of religious worship would be 21 viewpoint discrimination, and most likely unconstitutional. The question of whether 22 there is a category of nonreligious worship, or whether worship is inherently religious 23 and thus religious worship is redundant, is interesting and difficult, but we do not need 24 to decide it in this case. The majority opinion does not need to decide the issue because it 25 concludes that there is no such thing as a non-religious worship service. Maj. Op. at [15- 1 1 16]. I also need not decide the issue because the rule before us prohibits using a school 2 as a house of worship, as well as the holding of religious worship services. SOP § 3 5.11. No one questions that what Appellees seek to do in the instant case is to use the 4 school as a house of worship. And since both religious worship and nonreligious worship 5 (if there be any) are subject to the clause barring use of a school as a house of worship, 6 the prohibition here is content- and not viewpoint-based. 7 We also do not need to be concerned with whether in some other case it might be 8 hard to say whether what the Appellees wish to do is to use the school as a house of 9 worship. Nor need we worry that, in attempting to answer that question, we (or the 10 Appellants) might become unconstitutionally entangle[d] with religion, Lemon v. 11 Kurtzman, 403 U.S. 602, 613 (1971). For Appellees admitted in their permit request, see 12 J.A. at 3586, and in their briefs before this court, see Appellees Br. at 1, that they seek to 13 use school facilities for worship. When a group tells the government that what it 14 wishes to do is worship, the government is entitled to take the group at its word. See 15 Bronx Household I, 127 F.3d at 221-22 (Cabranes, J., concurring in part and dissenting in 16 part) ( There may be cases in which the parties dispute whether or not a proposed activity 17 for which permission to use school premises is denied actually constitutes religious 18 instruction or worship . . . . However, this issue does not arise in the instant case, as the 19 parties have stipulated that plaintiff seeks to use a school gymnasium for religious 20 worship services. ). That is all the Appellants did when they enforced SOP § 5.11,1 and 1 Whatever the Appellants may have done in deciding whether to grant previous permit applications not governed by the revised SOP § 5.11 is not before us. Under SOP § 5.11, the Appellants denied the Appellees permit application four days after it was submitted, because it described the activities to be conducted on school premises as Christian worship services. See J.A. at 3586, 3588. It also does not matter that the permit 2 1 it is all a court needs to do here. This case does not, therefore, present an appropriate 2 occasion for deciding how to resolve a dispute over whether something actually is 3 worship. application included the words as we have done in the past, J.A. at 3586, or that it might have been worded explicitly to include, in addition to worship, other activities that, if conducted separately from worship, could not constitutionally be excluded from the limited public forum. 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. 3 1 2 JOHN M. WALKER, JR., Circuit Judge, dissenting: The Board s Standard Operating Procedure ( SOP ) § 5.11 3 withholds otherwise broadly available school-use permits from 4 religious groups seeking to use school facilities during non- 5 school hours for the purpose of holding religious worship 6 services, or otherwise using a school as a house of worship. 7 Without addressing the house of worship ban, the majority 8 concludes that the ban on religious worship services does not 9 offend the First Amendment s Free Speech Clause because it is a 10 neutral, content-based restriction that is reasonably implemented 11 to avoid an Establishment Clause violation. 12 § 5.11 is impermissible viewpoint discrimination against 13 protected speech and is unsupported by a compelling state 14 interest. 15 easily within the purposes of the Board s broadly available forum 16 and may not be the object of discrimination based upon the 17 religious viewpoint expressed by the services participants. 18 Board s purported Establishment Clause concerns are 19 insubstantial: they are not reasonable, much less a compelling 20 reason for the Board to shut the door on Bronx Household s 21 protected speech. I disagree: SOP In this case, Bronx Household s worship services fit 22 * * * * * * 23 When this panel split in 2007, Judge Calabresi indicated 24 that he would uphold SOP § 5.11 as a reasonable content-based -1- The 1 restriction on the unique subject of worship, Judge Leval 2 expressed no opinion on the merits of the case due to ripeness 3 concerns, and I indicated that I would strike down the 4 application of SOP § 5.11 as unconstitutional viewpoint 5 discrimination. 6 Educ., 492 F.3d 89, 100-106 (Calabresi, J.), 110-123 (Leval, J.), 7 and 123-32 (Walker, J.) (2d Cir. 2007). 8 the purpose of Bronx Household s proposed use of school property 9 with the purposes for which the Board opened its limited forum to 10 the public under SOP § 5.6.2, and, after inquiring searchingly of 11 the government s motives, concluded that the Board had engaged in 12 impermissible viewpoint discrimination by rejecting permit 13 applicants under SOP § 5.11. 14 Judge Calabresi s willingness to uphold the Board s prohibition 15 on religious worship, I countered that Judge Calabresi had not 16 engaged in any real analysis of the purpose of Bronx Household s 17 proposed expressive activity in light of the purposes of the 18 forum and in comparison to the purposes of the activities the 19 Board had allowed, pointing out that he had erred by simply 20 comparing the speech already permitted on school premises with 21 worship, which he declared to be sui generis and thus readily 22 excludable from the forum. 23 Calabresi at 1. 24 See generally Bronx Household of Faith v. Bd. of At that time, I compared Id. at 123-25. In response to See id. at 127-130; cf. Op. of J. Now, in this latest iteration of what is effectively the -2- 1 same facial challenge to the Board s exclusions under SOP § 5.11, 2 the majority opinion breaks with Judge Calabresi s earlier 3 analysis that worship is a separate category of speech that is 4 readily excludable from the Board s expansive community use 5 policy, declining even to consider either the second part of SOP 6 § 5.11 (which prohibits using a school as a house of worship ) 7 or whether worship may be lawfully excluded from the forum. 8 Compare Maj. Op. at 11 & 11 n.6 (expressly avoiding a decision on 9 worship ), with Op. of J. Calabresi at 1-3 (readily excluding 10 worship ).1 11 below or advanced by the Board by focusing solely on the Board s 12 restriction against religious worship services, characterizing 13 SOP § 5.11 as merely the exclusion of the conduct of an event or 14 activity that includes expression of a point of view, Maj. Op. 15 at 13. 16 services fall squarely within the purposes of the limited public 17 forum; it holds, however, that SOP § 5.11's exclusion of services 18 is both viewpoint-neutral and justified by Establishment Clause 19 concerns. 20 I would affirm the district court s injunction. Rather, the majority adopts a position not argued The majority does not disagree that Bronx Household s Because I believe that neither conclusion is correct, 21 1 2 3 4 5 1 While I disagree with Judge Calabresi s analysis and conclusions, he at least recognizes that the two parts of SOP § 5.11 operate in tandem to effectively preclude worship and the practice of religion from school premises during non-school hours. -3- 1 2 3 4 I. SOP § 5.11's Ban on Religious Worship Services Constitutes Viewpoint Discrimination 5 public forum by opening its schools for uses pertaining to the 6 welfare of the community. 7 such a forum, it is not required to and does not allow persons 8 to engage in every type of speech. Good News Club v. Milford 9 Cent. Sch., 533 U.S. 98, 106 (2001). The government may, for As the majority recognizes, the Board has created a limited SOP § 5.6.2. When the state creates 10 example, reserve the limited public forum for the discussion of 11 certain topics. 12 of the Univ. of Va., 515 U.S. 819, 829 (1995)). 13 on speech in a limited public forum must, however, be both 14 viewpoint neutral and reasonable in light of the purpose served 15 by the forum. 16 Inc., 473 U.S. 788, 806 (1985). Id. (quoting Rosenberger v. Rector & Visitors Any restrictions Cornelius v. NAACP Legal Defense & Educ. Fund, SOP § 5.11 is neither. 17 Here, the Board opened its schools to the public for 18 purposes of maximiz[ing] educational, cultural, artistic and 19 recreational opportunities for children and parents, Cahill. 20 Decl. ¶ 13, assist[ing] in . . . development generally, id., 21 expand[ing] enrichment opportunities for children, Farina Decl. 22 ¶ 9, and enhanc[ing] community support for the schools, id. 23 The parties agree, and the majority does not contest, that Bronx 24 Household s intended use of P.S. 15 for Christian worship 25 services which include prayer, the reading and singing of 26 psalms, Bible lessons, personal testimony, communion, preaching, -4- 1 fellowship, and conversation falls within the purposes of the 2 forum. 3 ( Tr. ), at 10:7-8, 21:20-21, & 22:20-22 (each statement 4 conceding that Bronx Household s intended use advances the 5 forum s purposes). 6 restriction on religious services is content discrimination that 7 is reasonable in light of the purposes of the limited public 8 forum. 9 against Bronx Household is based on its religious viewpoint. 10 See, e.g., Transcript of Oral Argument, 10/6/2009 The majority nevertheless finds that the I disagree and conclude that the Board s discrimination The Supreme Court has consistently held that the exclusion 11 of private speakers from open fora or limited public fora on the 12 basis of their religious message constitutes viewpoint 13 discrimination. 14 Court reaffirmed that religious worship and discussion are 15 forms of speech and association protected by the First 16 Amendment. 17 rejected a university s attempt to prevent a student organization 18 from using an open forum to hold meetings, similar to those at 19 issue here, that included prayer, hymns, Bible commentary, and 20 discussion of religious views and experiences. 21 Significantly, the Court rejected a distinction between protected 22 religious speech and a new class of religious speech act[s] 23 constituting worship. Id. at 269 n.6 (alteration in original) 24 (citation and internal quotation marks omitted). In Widmar v. Vincent, for example, the Supreme 454 U.S. 263, 269 (1981). -5- On this basis, the Court Id. at 265 n.2. The Court 1 explained that this proposed distinction lacked intelligible 2 content and would not lie within the judicial competence to 3 administer. 4 Id. The Supreme Court first addressed private religious speech 5 in a limited public forum in Lamb s Chapel v. Center Moriches 6 Union Free School District, 508 U.S. 384 (1993). 7 sought to use a school s limited public forum, after hours, to 8 show a six-part film series that dealt with family and child- 9 rearing issues from a Christian perspective. There, a church Id. at 387-89. 10 The Court found that the school district had engaged in viewpoint 11 discrimination by permit[ting] school property to be used for 12 the presentation of all views about family issues and child 13 rearing except those dealing with the subject matter from a 14 religious standpoint. 15 Rector & Visitors of the University of Virginia, the Court 16 rejected the University of Virginia s refusal to fund a student 17 newspaper on the basis that the newspaper primarily promote[d] 18 or manifest[ed] a particular belie[f] in or about a deity or an 19 ultimate reality. 20 explained that viewpoint discrimination is a subset of content 21 discrimination and that while it is something of an 22 understatement to speak of religious thought and discussion as 23 just a viewpoint, as distinct from a comprehensive body of 24 thought, religion nevertheless provides . . . a specific Id. at 393. Similarly, in Rosenberger v. 515 U.S. 819, 823 (1995). -6- The Court 1 premise, a perspective, a standpoint from which a variety of 2 subjects may be discussed and considered. 3 that reason, the University s refusal to fund a student 4 publication because of its Christian perspective, while 5 continuing to fund publications with other (secular) 6 perspectives, was impermissible viewpoint discrimination. 7 831-32. 8 9 Id. at 830-31. For Id. at More recently, in Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court applied its holdings in 10 Lamb s Chapel and Rosenberger to activities that could be labeled 11 worship. 12 SOP § 5.6.2 here, opened its school for purposes pertaining to 13 the welfare of the community. 14 The Good News Club, a private Christian organization, sought to 15 use this forum for weekly meetings, at which participants would 16 sing[] songs, hear[] a Bible lesson and memoriz[e] scripture. 17 533 U.S. at 103. 18 meetings unconstitutional, the Court explained that something 19 that is quintessentially religious or decidedly religious in 20 nature can[] also be characterized properly as the teaching of 21 morals and character development from a particular viewpoint. 22 Id. at 111. 23 characterization of the Club s activities as an evangelical 24 service of worship, the Court wrote that what matters is the Milford had created a limited public forum that, like Good News Club, 533 U.S. at 102. In finding Milford s exclusion of these While declining to challenge Justice Souter s -7- 1 substance of the Club s activities, which the Court found to be 2 materially indistinguishable from the activities in Lamb s 3 Chapel and Rosenberger. 4 groups were permitted to teach morals and character development 5 from a secular viewpoint, excluding the Good News Club s efforts 6 to do the same from a religion viewpoint was impermissible. Id. at 112 n.4. Because non-religious 7 The majority argues in this case that the Board has not 8 discriminated on the basis of viewpoint and tries to distinguish 9 these prior Supreme Court decisions by focusing narrowly on the 10 Board s exclusion of religious worship services. The Board, 11 however, has not differentiated these services from religious 12 worship or the practice of religion. 13 Nor has the Board offered a definition of religious worship 14 services. 15 definition of religious worship services, without reference to 16 the record or briefs, as the conduct of a particular type of 17 event: 18 to an order prescribed by and under the auspices of an organized 19 religion, typically but not necessarily conducted by an ordained 20 official of the religion, the conduct of which has the effect 21 of placing centrally, and perhaps even of establishing, the 22 religion in the school. 23 formulation of religious worship services, including its shoe- 24 horning of a supposed Establishment Clause problem, is Indeed, how could it do so? Rather, the majority offers its own self-styled a collective activity characteristically done according Maj. Op. at 12. -8- The majority s 1 conveniently tailored to support its arguments, but leaves no 2 doubt that it is religious services and worship that the 3 Board is targeting for exclusion. 4 unconcerned with comparable ceremonial speech occurring on school 5 premises.2 6 anomalous results: while a Catholic or Episcopal service would be 7 shut out of the forum, a Quaker meeting service, Buddhist 8 meditation service, or other religions worship convocation could 9 be allowed because it would not follow a prescribed order or The Board is otherwise The majority s definition, it bears noting, leads to 10 because the leader is not ordained. 11 definition also obscures the central issue, barely discussed in 12 the majority opinion, of whether Bronx Household is engaging in 13 speech that fulfills the purposes of the forum and is consistent 14 with non-religious speech occurring on school premises. 15 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Ultimately, the majority s The core of the majority s argument is that by prohibiting religious worship services, the Board has only prohibited the 2 Indeed, the majority s attempt to differentiate between the conduct of services, which it defines as the performance of an event or activity, Maj. Op. at 11, and the conduct of religious worship services as two distinct categories of activity relies explicitly on the religious nature of the latter activity. Whereas a Boy Scouts merit badge service constitutes a collective activity characteristically done according to an order prescribed by and under the auspices of an organized [civic group] and is typically . . . conducted by an . . . official of the [group], Maj. Op. at 12, Bronx Household s weekly event or activity is barred solely because it is performed under the auspices of an organized religion and conducted by an ordained official of the religion. Thus, these purportedly distinguishing criteria squarely depend on the fact that religion is the underlying motivation for the expressive activity. -9- 1 conduct of an event or activity that includes expression of a 2 point of view, rather than excluding the expression of that 3 point of view. 4 differentiate between the conduct of an event, here labeled 5 services, and the protected viewpoints expressed during the 6 event is futile because the conduct of services is the 7 protected expressive activity of the sort recognized in Good News 8 Club and, earlier, in Widmar. 9 Supreme Court s holding in Good News Club that it is viewpoint 10 discrimination for a school to exclude what is effectively an 11 evangelical service of worship from a limited public forum that 12 in every material respect is identical to the forum that the 13 Board established in this case. 14 at 112 n.4, with id. at 137-38 (Souter, J., dissenting). 15 Board cannot lawfully exclude the conduct of an event based 16 solely on the religious viewpoints expressed during the event. 17 Maj Op. at 12. The majority s attempt to The majority turns its back on the Compare Good News Club, 533 U.S. The Indeed, in rejecting the claim that religious worship is not 18 protected speech in Widmar, Justice Powell explained that a 19 carve-out of worship from protected religious speech does not 20 have intelligible content and likely would not lie within the 21 judicial competence to administer. 22 carve-out, Justice Powell wrote, also lacks relevance because 23 there is no reason why the Establishment Clause, or any other 24 provision of the Constitution, would require different treatment -10- 454 U.S. at 269 n.6. The 1 for religious speech designed to win religious converts than for 2 religious worship by persons already converted. 3 omitted). Id. (citation 4 Fixing upon the label services for the program of worship 5 at issue here as a carve-out from protected speech as opposed to 6 other characterizations such as meeting, gathering, prayer 7 group, or time of worship does nothing to resolve the 8 underlying carve-out problems identified by Justice Powell in 9 Widmar. The same concerns lack of intelligible content, judicial 10 manageability, and relevance persist. 11 to address these concerns through its own definition of services, 12 the concerns raised in Widmar adhere in the application of the 13 majority s definition. 14 ascertain when it is dealing with services as with worship 15 generally and to manage any such distinction. 16 any distinction between services and protected religious speech 17 is irrelevant because, regardless of labels, what matters is the 18 substance of the [group s] activities. 19 at 112 n.4. 20 While the majority tries It is as difficult for a court to And ultimately, Good News Club, 533 U.S. Moreover, that SOP § 5.11 exclusively targets religious 21 viewpoints is evident from the fact that, as in Good News Club, 22 only religious services are shut out of the forum. 23 restriction is placed on secular gatherings that are materially 24 indistinguishable from Bronx Household s use of P.S. 15. -11- No similar While 1 the Board denies Bronx Household a space to celebrate its ideals, 2 it permits other outside organizations, such as the Legionnaire 3 Greys Program and the Boy Scouts, to meet on school premises to 4 further their secular ideals of military leadership, or 5 character building, citizenship, and personal and physical 6 fitness. 7 that these groups also meet according to a prescribed order of 8 conduct that they consider integral to the accomplishment of 9 their goals. The Board permits these secular uses despite the fact See, e.g., 1st Aff. of David Laguer, at ¶¶ 3, 4, & 10 6 (describing Legionnaire Greys Program meetings as structured 11 and ordered, each consisting of, inter alia, a ceremonial flag 12 presentation, trumpets playing the national anthem, flag salutes, 13 unit lessons, leadership training, and character building); Aff. 14 of Jeffrey G. Fanara, at ¶¶ 5, 6, & 8 (describing Boy Scout troop 15 meetings as consisting of a pre-opening, a half-hour gathering 16 period, . . . a formal opening ceremony . . . with a flag 17 ceremony and [ ] a recitation of the Pledge of Allegiance and the 18 Scout Oath or Law, and a closing ceremony that includes a 19 motivational message . . . based on Scouting s values ). 20 can be little doubt that the Board would similarly allow the use 21 of its facilities by fraternal organizations, such as the Elks or 22 the Freemasons, with comparable missions and ceremonies. 23 24 There Just as each of these groups meets to address and discuss universal concerns while advancing its organizational mission, so -12- 1 too does Bronx Household s Sunday morning meeting [act as] the 2 indispensable integration point for [the group]. 3 theological framework to engage in activities that benefit the 4 welfare of the community. 5 Aff. ), at ¶ 7. 6 gatherings that participants are taught to love their neighbors 7 as themselves, to defend the weak and disenfranchised, and to 8 help the poor regardless of their particular beliefs. 9 venue where people . . . come to talk about their particular It provides the First Aff. of Robert Hall ( 1st Hall Further, it is during Bronx Household s It is a 10 problems and needs. 3 11 Bronx Household s gatherings fail to address subjects that are 12 otherwise permitted in the forum or that they differ from secular 13 groups meetings in any way other than their invocation of 14 religious doctrine.4 1 2 3 4 5 6 7 8 9 10 11 12 13 1 2 3 4 5 Id. Plainly, there can be no claim that 3 For this reason, the majority errs by distinguishing Good News Club on the basis of the Supreme Court s statement that the Club meetings in that case did not involve mere religious worship. 533 U.S. at 112 n.4; see Maj. Op. at 25, 38. The majority, however, omits a critical modifier: the Court made clear that it did not consider the Club s activities to be mere religious worship, divorced from any teaching of moral values. Id. (emphasis added). The same is true here: Bronx Household s worship services cannot be divorced from the teaching of moral values that are part and parcel of those services, which include Bible lessons and instruction. Indeed, how can the majority s conception of religious worship services ever be divorced from promoting moral values? 4 While this case was argued under the First Amendment s Free Speech and Establishment Clauses, the Board s action also raises Free Exercise Clause concerns. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or -13- 1 2 The majority also relies on a number of hypothetical 3 activities to argue that the Board could deny a permit 4 application in order to avoid either harm to persons or 5 property, or liability, or a mess, which those activities may 6 produce. 7 deny permits for such hypothetical uses out of a concern for 8 safety, sanitation, and non-interference with other uses of the 9 schools, see Capitol Square Review & Adv. Bd. v. Pinette, 515 Maj. Op. at 13. Irrespective of the Board s power to 10 U.S. 753, 758 (1995), none of these concerns has ever been 11 present in this case. 12 hypothetical uses, the majority never comes to grips with the 13 significant fact that the Board allows most outside organizations 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 regulates or prohibits conduct because it is undertaken for religious reasons. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993); see also Employment Div., Dep t of Human Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990). Thus, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. Church of the Lukumi Babalu Aye, 508 U.S. at 533 (internal citation omitted). 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. See Smith, 494 U.S. at 877-78. Because SOP § 5.11 specifically burdens religious practices, it must advance a compelling government interest to pass constitutional muster. See id. at 894-95 (O Connor, J., concurring). Such a compelling interest is absent in this case for the reasons stated in Part II. Strikingly, while quick to proffer these -14- 1 to access its facilities for uses that pertain[ ] to the welfare 2 of the community and promot[e] [children s] development 3 generally, so long, of course, as those organizations 4 activities do not amount to religious worship services or 5 transform the school into a house of worship. 6 majority s arguments to the contrary, it is readily apparent that 7 the Board singles out religious worship for disfavored treatment. 8 The majority s argument that SOP § 5.11 is nothing more than a 9 content-based restriction on a specific type of activity, albeit 10 11 Despite the a religious one, plainly fails.5 Finally, the majority argues that my finding of viewpoint 12 discrimination overlooks the Board s Establishment Clause 13 rationale. 14 that the Board s Establishment Clause concerns are reasonable, 15 for the reasons discussed in Part II. 16 Board were to have legitimate Establishment Clause concerns, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Maj. Op. at 33-37. As an initial matter, I disagree 5 Nevertheless, even if the The Board s separate reliance on Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007), to argue that SOP § 5.11 is content, not viewpoint, discrimination is misplaced. In Faith Center, the Ninth Circuit concluded that Contra Costa County s exclusion of a religious congregation from its library meeting space was content, not viewpoint, discrimination because the congregation s intended use of the space during normal operating hours for Praise and Worship services was incompatible with (a) the purpose for which the meeting room forum had been created, and (b) the library s primary function as a sanctuary for reading, writing, and quiet contemplation . . . available to the whole community. Id. at 902, 909-11. No such incompatibility in either purpose or facility is present here. -15- 1 those concerns could do nothing to undermine my conclusion that 2 the Board engaged in viewpoint discrimination; at most, they 3 could only serve as a potential justification for such 4 discrimination. 5 Thus, whether the Board s actions under SOP § 5.11 are 6 properly characterized as the exclusion of worship, the exclusion 7 of religious worship services, or the exclusion of the conduct 8 of an event or activity that includes expression of a [religious] 9 point of view, Maj. Op. at 13, the Board has discriminated 10 against Bronx Household on the basis of religious viewpoint. 11 group s proposed use of P.S. 15 fits plainly within the purpose 12 of the limited public forum created under SOP § 5.6.2; is not 13 incompatible with any time, place, and manner restrictions 14 imposed by the Board; and has been denied solely because Bronx 15 Household wishes to address otherwise permissible subjects from a 16 religious viewpoint through its conduct of religious worship 17 services. The 18 19 20 21 22 II. Bronx Household s Intended Use of P.S. 15 Raises No Legitimate Establishment Clause Concerns 23 the majority next considers the reasonableness of SOP § 5.11. 24 However, it does so not in light of the forum s stated purposes, 25 but rather in light of the Board s stated concern that allowing 26 the conduct of religious worship services in schools would give After concluding that SOP § 5.11 is content discrimination, -16- 1 rise to a sufficient appearance of endorsement to constitute a 2 violation of the Establishment Clause. 3 Unlike my colleagues in the majority and the Board, I am not 4 prepared to shut out constitutionally-protected speech from a 5 neutral forum on the sole basis that it is quintessentially 6 religious. 7 the actions of Bronx Household, a private party, cannot transform 8 the government s neutral action into an Establishment Clause 9 violation. See Maj. Op. at 19. Good News Club, 533 U.S. at 111. I would hold that The Board s fear of being perceived as establishing a 10 religion is therefore not reasonable, if the exclusion is viewed 11 (erroneously) as content discrimination, much less sufficiently 12 compelling to justify the viewpoint discrimination that I believe 13 is occurring. 14 Just like the defendants in Widmar, the Board and the 15 majority misconceive[] the nature of the case. 16 The Board has not created a forum open only to religious speech. 17 Rather, it has opened its facilities for use by [the community], 18 and the question is whether it can now exclude groups because of 19 the content of their speech. 20 [m]ore than once . . . rejected the position that the 21 Establishment Clause even justifies, much less requires, a refusal 22 to extend free speech rights to religious speakers who participate 23 in broad-reaching government programs neutral in design. 24 Rosenberger, 515 U.S. at 839 (citing Lamb s Chapel, 508 U.S. at Id. -17- 454 U.S. at 273. In fact, the Supreme Court has 1 393-94; Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v. Mergens, 2 496 U.S. 226, 248, 252 (1990)). 3 looks only to the government s role, if any, in establishing 4 religion and not the private speaker s choice in exercising his 5 free speech rights, I reach the opposite conclusion from the 6 majority as to whether a reasonable person would perceive the 7 Board s grant of the neutral-forum permit sought here to be an 8 endorsement of religion. Because the Establishment Clause 9 The Board and the majority invoke Lemon v. Kurtzman, 403 U.S. 10 602 (1971), to demonstrate that SOP § 5.11 is reasonable, but they 11 misapply the Lemon test, thereby reaching several conclusions that 12 directly contradict controlling Supreme Court precedent. 13 particular, the majority offers five bases for concluding that SOP 14 § 5.11 is reasonably based on the Board s supposed concern that 15 granting Bronx Household a permit for Christian worship services 16 might have the principal or primary effect of endorsing 17 religion, see id. at 612, thereby violating the Establishment 18 Clause.6 1 2 3 4 5 6 7 8 9 10 11 In The battle that the majority and the Board wish to 6 The five bases the majority cites are as follows: (1) after-hours use of school premises for religious worship services transforms the school into a church because [t]he church has made the school the place for the performance of its rites, Maj. Op. at 20; (2) the Board might reasonably fear that allowing access for religious worship services results in the Board s substantial subsidization of religion, Maj. Op. at 21; (3) granting access for religious worship services might permanently convert a school on Sundays into a state-subsidized church by reason of public perception of endorsement that is made particularly acute by the fact that P.S. 15 and other -18- 1 fight, however, has already been lost. 2 rejected Establishment Clause concerns, including those raised by 3 the majority, in this context because they are premised on the 4 mistaken belief that permitting religious groups to use school 5 facilities for religious purposes on a non-school day in a neutral 6 forum creates a realistic danger that the public will perceive the 7 Board as endorsing religion. 8 The Supreme Court has The relevant question to be asked is not whether any person 9 might mistakenly perceive the Board as conveying a message of 10 endorsement or disapproval; rather, the endorsement test asks 11 whether an objective observer, acquainted with the text, 12 legislative history, and implementation of the [challenged law or 13 policy], would perceive it as a state endorsement of [organized 14 religion] in public schools. 15 530 U.S. 290, 308 (2000) (emphasis added) (quoting Wallace v. 16 Jaffree, 472 U.S. 38, 73, 76 (1985) (O Connor, J., concurring)). 17 Thus, the majority confuses its analysis when it emphasizes the 18 private speaker s conduct, rather than the government s role, in 19 establishing religion. 1 2 3 4 5 6 7 8 Santa Fe Indep. Sch. Dist. v. Doe, The fact that a community member might schools used by churches are attended by young and impressionable students, Maj. Op. at 22-23; (4) increased availability of Sunday permits would favor Christian groups over other denominations, see Maj. Op. at 23-24; and (5) deliberate exclusion of certain members of the general public, such as persons excommunicated from the church who advocate the Islamic religion, by a religious organization aggravates existing Establishment Clause concerns, see Maj. Op. at 24. -19- 1 witness an outside organization using a school during non-school 2 hours to further its religious cause does not in itself raise a 3 legitimate concern that the government has acted in contravention 4 of the Establishment Clause. 5 (Scalia, J., for the plurality) ( By its terms th[e] 6 [Establishment] Clause applies only to the words and acts of 7 government. It was never meant, and has never been read by this 8 Court, to serve as an impediment to purely private religious 9 speech connected to the State only through its occurrence in a 10 11 See Capitol Square, 515 U.S. at 767 public forum. (emphasis in original)). For these reasons, the majority s focus on the religious 12 nature of the speech, without regard to the nature of the 13 speaker, is misplaced. 14 ACLU, 545 U.S. 844 (2005); County of Allegheny v. ACLU, 492 U.S. 15 573 (1992); and Lee v. Weisman, 505 U.S. 577 (1992), as 16 foundational to its Establish Clause analysis, and of course they 17 would be highly relevant to this case were we dealing with 18 religious speech by the government. 19 Allegheny, the government s placement of the Ten Commandments and 20 a nativity creche, respectively, in county courthouses violated 21 the Establishment Clause, as did the government in Lee v. Weisman 22 when a school official invited a rabbi to give an invocation and 23 benediction at a middle-school commencement exercise. 24 before us, however, the most the government has done is to open up The majority cites McCreary County v. -20- In McCreary and County of In the case 1 a neutral public forum limited by its laudable educational and 2 community-building purposes. 3 it has neither promoted nor endorsed a religious message. 4 Unlike in these three cited cases, Also, a significant factor in upholding government programs 5 in the face of Establishment Clause attack is their neutrality 6 towards religion. 7 Rosenberger, 515 U.S. at 839). 8 requirement of viewpoint neutrality by the government in opening a 9 forum tends to undermine, if not preclude, a finding of school Good News Club, 533 U.S. at 114 (quoting Indeed, the Free Speech Clause s 10 sponsorship in the Establishment Clause context. 11 Club, 533 U.S. at 114 ( Because allowing the Club to speak on 12 school grounds would ensure neutrality, not threaten it, [the 13 school district] faces an uphill battle in arguing that the 14 Establishment Clause compels it to exclude the Good News Club. ).7 15 To an objective, fully informed observer, the fact that the forum 16 is open to a wide spectrum of participants bespeaks the state s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 7 See Good News Indeed, it bears noting that it was, at least in part, the Second Circuit s previous approval of the Board s rejection of Bronx Household s permit application pursuant to an earlier formulation of the religious-use prohibition ( No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. ) that prompted the Court to grant certiorari in Good News Club. See 533 U.S. at 105-106 (citing Bronx Household I as one of a number of circuit court cases contributing to a circuit conflict on the question whether speech can be excluded from a limited public forum on the basis of the religious nature of the speech ). It would not have been unreasonable for the Court to have expected that its Good News Club decision would end this case as well. -21- 1 2 neutrality, not its favoring of religion or any other group. In any event, even if a private actor s conduct could somehow 3 transform a neutral forum into a state endorsement of religion, 4 Bronx Household s services would not do so here. 5 Lamb s Chapel and Good News Club, Bronx Household s use of P.S. 15 6 takes place during non-school hours (actually on a day when there 7 is no school), lacks school sponsorship, occurs in a forum 8 otherwise available for a wide variety of uses, and is open to the 9 public. Just as in See 1st Hall Dep. at 30 ( Worship services are always 10 open to the public. ); 1st Hall Aff., ¶ 5 ( Our Sunday morning 11 meetings are open to all members of the public. 12 not closed to a limited group of people, such as church members 13 and their guests. ).8 14 the particularly acute danger that young and impressionable 15 students will perceive the weekend use of their schools by 16 religious groups as the Board s endorsement of religion or certain 17 religious denominations, see Maj. Op. at [23], the Supreme Court 1 2 3 4 5 6 7 8 9 10 11 12 The meetings are And while the majority in this case cites 8 While Bronx Household, in accordance with its religious tenets, limits communion to church members who have been baptized, all members of the public are free to attend its Sunday worship services and there is no evidence that Bronx Household has ever refused admission to anyone. The majority s statement that Bronx Household excludes. . . persons who have been excommunicated or who advocate the Islamic religion from full participation in its services, Maj. Op. at 23, rests on Pastor Robert Hall s answers to hypothetical questions posed to him by the Board during his deposition that specifically addressed church membership, not public attendance at Sunday worship services. See 2nd Hall Dep. at 35-42. -22- 1 rejected this same argument in Good News Club, where it was 2 presented with facts less favorable to Good News Club than those 3 the majority cites to here. 4 at 117-18. 5 place directly after school and catered to children ages 6-12, 6 id.; here, by contrast, Bronx Household s services occur on 7 Sundays, when the only children present at the school are those 8 attending the services, presumably with their parents. 9 See, e.g., Good News Club, 533 U.S. Specifically, the Good News Club s activities took The majority argues at some length that permitting weekly 10 worship services at P.S. 15 transforms the school into a church. 11 See, e.g., Maj. Op. at 20 ( When worship services are performed in 12 a place, . . . [t]he place has, at least for a time, become the 13 church. ). 14 to subsidizing churches and allowing schools to be converted 15 into churches. 16 no less than twelve times in the majority opinion. 17 argument that somehow a neutral forum is physically (or perhaps 18 metaphysically) transformed into a non-neutral forum by the 19 private activity undertaken there has the feel of rhetoric. 20 same claim could have been made in Widmar and Good News Club, in 21 which decidedly church-related activities were permitted to occur 22 on a regular basis. 23 P.S. 15 into a church any more than the Boy Scout s meetings 24 convert it into a Boy Scout lodge. The majority then equates permitting worship services Maj. Op. at 21. The church reference appears Such an The Bronx Household s services do not convert -23- 1 The majority also errs in relying on the fact that some 2 outside religious organizations may more easily obtain school-use 3 permits because they worship on Sundays, not Fridays and 4 Saturdays. 5 violation does not result from either private choice or 6 happenstance. 7 (2002); Good News Club, 533 U.S. at 119 n.9; Harris v. McRae, 448 8 U.S. 297, 319 (1980) ( [I]t does not follow that a statute 9 violates the Establishment Clause because it happens to coincide 10 or harmonize with the tenets of some or all religions. (internal 11 quotation marks omitted)). 12 Christian groups have sought Sunday-use permits under SOP § 5.6.2 13 does not equate to permit unavailability for other religious 14 groups. 15 generally cannot use school facilities for their services because 16 the facilities are often unavailable on the days that their 17 religions principally prescribe for services, Maj. Op. at 23-24, 18 the record is clear that Jewish and Muslim groups have been 19 granted weekend access to school premises across the city under 20 the community use policy. 21 for Downtown Synagogue s religious services ); id. at 185 22 (Saturday permit for Downtown Synagogue s religious services ); 23 id. at 179 (Saturday permit for Hope of Israel s fellowship 24 meetings ); id. at 183 (Saturday permit for Khal Bais Yitzchok s See Maj. Op. at 23-24. An Establishment Clause See Zelman v. Simmons-Harris, 536 U.S. 639, 652 Moreover, that an increasing number of Indeed, while the majority states that Jews and Muslims See, e.g., J.A. at 88 (Friday permit -24- 1 religious fellowship meetings ); id. at 229 (Saturday permit for 2 Muslimmah of NA s religious services ).9 3 reliance on County of Allegheny v. ACLU, 492 U.S. 573 (1989), and 4 Lynch v. Donnelly, 465 U.S. 668 (1984), is misplaced because those 5 cases neither hold[ ] nor even remotely assume[ ] that the 6 government s neutral treatment of private religious expression can 7 be unconstitutional. 8 J., for the plurality). 9 Finally, the majority s Capitol Square, 515 U.S. at 765 (Scalia, Supreme Court caselaw also refutes the Board s argument that 10 granting Bronx Household Sunday access to P.S. 15 constitutes 11 direct aid to religion because it allows Bronx Household to bypass 12 the expensive New York City real estate market that might 13 otherwise preclude it from establishing a congregation. 14 Op. at 21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Cf. Maj. The Board s argument runs afoul of Rosenberger: 9 The majority relies on the Board s denial of one group s request to hold Jewish services on Saturdays in a school generally used for Christian services on Sundays in support of its argument that permits are unavailable to Jewish and Muslim groups. See Maj. Op. at 24. While the Board implies that there is a lack of availability of Friday and Saturday permits for use of its 1,197 buildings, its own evidence demonstrates that approximately 750 buildings are available for after-school use on Fridays, that 400 buildings are available for Saturday use, and that 900 buildings are available for Sunday use. See Appellant s Br. at 13-14. Thus, that some religious denominations use school premises more often than others may simply indicate their lack of other adequate meeting space in the community and not any increased ability on their part to secure a permit. See 2nd Hall Dep. at 105-06. That some religious groups utilize the extended use policy more than others simply does not give rise to a legitimate perception that the Board grants permits to particular denominations to the exclusion of others. -25- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 It does not violate the Establishment Clause for a [school] to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups, including groups that use meeting rooms for sectarian activities, accompanied by some devotional exercises. . . . The government usually acts by spending money. Even the provision of a meeting room, as in Mergens and Widmar, involved governmental expenditure, if only in the form of electricity and heating or cooling costs. The [analytical] error . . . lies in focusing on the money that is undoubtedly expended by the government, rather than on the nature of the benefit received by the recipient. If the expenditure of governmental funds is prohibited whenever those funds pay for a service that is, pursuant to a religion-neutral program, used by a group for sectarian purposes, then Widmar, Mergens, and Lamb s Chapel would have to be overruled. 19 515 U.S. at 842-43 (emphasis added). Even Justice Souter, who 20 dissented in Rosenberger, agreed that the government does not 21 provide impermissible direct aid to religion each time a non- 22 government speaker utilizes a limited public forum for private 23 religious speech. 24 established Supreme Court precedent effectively forecloses the 25 argument that permitting Bronx Household access to P.S. 15 for the 26 purpose of engaging in private religious speech results in the 27 Board s unlawful provision of direct aid to a religious group. 28 In sum, while the majority argues that allowing Bronx 29 Household weekly use of P.S. 15 for religious worship services 30 would force the Board to render direct aid to religion, convey a 31 message that the Board endorses religion over non-religion, and 32 exhibit a preference for certain religious denominations over 33 others, these arguments are without merit. See id. at 888 (Souter, J., dissenting). -26- Thus, Rather, the neutrality 1 of the forum is preserved when religious speech, like non- 2 religious speech, is allowed. 3 is to apply,10 I would hold that the Board has failed to 4 demonstrate that granting Bronx Household Sunday access to P.S. 15 5 for worship services would have the principal or primary effect of 6 advancing religion or otherwise conveying a message of 7 endorsement.11 8 sort of government endorsement (an uphill task, to say the least, 9 given the Free Speech Clause s requirement of forum neutrality) 10 before allowing it to restrict the viewpoint advanced by private 11 religious speech that otherwise falls within the purposes of the 1 2 3 4 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Accordingly, if Lemon v. Kurtzman While I would require the Board to demonstrate some 10 The Supreme Court recently noted that many of its Establishment Clause cases have not applied the Lemon test, while others have applied it only after concluding that the challenged practice was invalid under a different Establishment Clause test. Van Orden v. Perry, 545 U.S. 677, 686 (2005). 11 The majority cites Capitol Square for the proposition that a private religious group may so dominate a forum so as to convey a message of governmental approval. See Maj. Op. at 21. While Bronx Household s four-hour use of P.S. 15 on Sundays hardly dominates the limited public forum the Board has created under SOP § 5.6.2, any concern over a given group s prolonged or dominant use of the forum can be addressed through reasonable time, place, and manner restrictions. For example, in order to ensure greater weekend availability of a particular school s facilities to more outside organizations, the Board could limit the number of times per year that any one outside organization may use school facilities. Likewise, the Board may revoke any organization s permit if it fails to adhere to neutral rules imposed by the Board, i.e., by failing to include the Board s sponsorship disclaimer in written materials or by actively creating an impression of school sponsorship. The majority s reliance on Pleasant Grove City, see Maj. Op. at 20, is similarly misplaced. -27- 1 forum, the lack of a basis in law for the Board s establishment 2 concerns undermines any holding that SOP § 5.11 is reasonable, 3 even under the majority s flawed analysis that SOP § 5.11 is mere 4 content discrimination, much less a compelling justification for 5 the Board s viewpoint discrimination. 6 7 * * * * * * I have no doubt that this case stirs deep feelings and 8 carries implications far broader than the Board s exclusion of 9 Bronx Household s Christian worship services under SOP § 5.11. 10 This case also presents important doctrinal considerations worthy 11 of the Supreme Court s attention. 12 result of the majority s decision that religious worship 13 services can be barred from the neutral limited public forum the 14 Board created under SOP § 5.6.2, numerous religious groups that 15 provide recognized benefits to the people and their communities, 16 consistent with the forum s purposes, will be denied access to 17 otherwise available school space simply because their private 18 speech is intertwined with their standard devotional practices and 19 deeply-held religious beliefs. 20 SOP § 5.11's ban on religious worship services violates the Free 21 Speech Clause, I respectfully dissent. In the meantime, however, as a Others will be chilled. -28- Because

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