Charles C. Haynes: In New York City, does church-school separation go too far?

  Few church-state battles in American history have had as many byzantine twists and turns as Bronx Household of Faith v. Board of Education of the City of New York.

  For 17 long years, Bronx Household of Faith — a small evangelical church that meets in a New York City public school on Sundays — has fought to overturn New York City’s policy barring worship services in public schools. Throughout the legal battle, courts have allowed churches to continue meeting in schools.

  After a roller-coaster ride of wins and losses for both sides, the end appeared near last June after the 2nd U.S. Circuit Court of Appeals upheld the school district’s policy. According to the appeals court, New York City’s policy is constitutionally permissible – but not constitutionally required.

  When the U.S. Supreme Court declined to review the lower court decision in December, the case was finally over — or was it?

  Undaunted by defeat, Bronx Household went back to court this month with a different argument. Having lost on free-speech grounds (the church argued that the district’s policy was viewpoint discrimination), Bronx Household now charges that the school board violates religious freedom because “it disqualifies the Church from using the schools because it engages in worship.”

  Last week, on Feb. 16, federal district Judge Loretta Preska breathed new life into the case when she ruled that the church’s religious-freedom argument was likely to prevail. The judge issued a 10-day temporary restraining order preventing the district from excluding worship services from schools.

  But the very next day, the appeals court “clarified” the restraining order, ruling that it applied only to Bronx Household. As a result, the 50 other city churches using schools for services will have to find other places to worship — at least until Bronx Household wins another round.

  Both sides are determined to fight on.

  New York City school officials are convinced that allowing weekly worship services in public schools endorses religion in violation of the establishment clause of the First Amendment. Young children, they argue, might misconstrue the use of schools by churches as favoring one religion over others.

  Church leaders counter that they use the buildings for services only when students aren’t around. Moreover, if other community groups are allowed to rent the space in non-school hours, then religious groups seeking worship space should receive equal treatment.

  In sorting through what’s at stake in this case, keep in mind that the Supreme Court has already ruled that when a public school allows community groups to use its facilities, it may not exclude a group with a religious viewpoint. For example, if the Kiwanis Club is given space, then the Good News Club must also be given space — even if the Good News Club meetings include prayers, singing of hymns and other elements of devotion or worship.

  But the city Board of Education wants to make a distinction between religious expression and worship (allowed under Supreme Court rulings) and worship services (not allowed under the school district’s policy).

  This distinction raises difficult questions. When exactly does a meeting with elements of worship become a “worship service”? Are religious groups that gather in silence or practice meditation in or out? Requiring school officials to draw these lines about the meaning and scope of “worship” could be a recipe for church-state entanglement in violation of the establishment clause.

  These issues may soon be resolved — not by the courts, but by the New York State Legislature.

  Earlier this month, the state Senate acted to trump the city’s policy by passing legislation requiring the school district to give churches the same access to school facilities as other groups. If the legislation passes the Assembly, then the court battle would finally be over.

  Deep emotions animate both sides. But taking a step back from the fray, it’s hard for me to see how permitting religious groups to use public schools for worship services in non-school hours rises to the level of state establishment or endorsement of religion.

  Separating church from state is essential for religious freedom. But when taken too far, “separation” sends a message of government hostility toward religion.

  About the author: Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web:http://www.firstamendmentcenter.org/. E-mail:chaynes@freedomforum.org.

  This article was published by the Center for American Progress.