A Series of Unfortunate Events
Kim Colby May/June 2012
Thirty years ago, the Supreme Court issued its landmark decision in Widmar v. Vincent,1 holding that the free speech clause protects citizens’ religious speech, including religious worship. Such an unremarkable proposition should have been greeted by good-natured agreement that free speech and religious liberty principles—indeed, pluralism itself—require nothing less than full protection for citizens’ religious speech.
Instead, three decades later, citizens in New York City have taken to the streets because their city—which claims to celebrate its diversity—has banned religious groups from weekend access to public school facilities otherwise available to community groups, if school officials deem the citizens’ speech to be a “religious worship service.” Last June, in Bronx Household of Faith,2 a federal appellate court gave its blessing to this overt discrimination.
How the Second Circuit in Bronx Household departed from Widmar and other Supreme Court precedent is relatively easy to explain. Why New York City has abandoned the grand American experiment of pluralism, as Bronx Household illustrates, is the more perplexing puzzle.
Widmar Holds That Worship Is Protected Speech
Understanding the Widmar decision is key to understanding the recent Bronx Household decision. Justice Lewis Powell wrote the nearly unanimous decision in Widmar for a majority that included Justices William Brennan and Thurgood Marshall. Only Justice Byron White dissented. The bone of contention between Justice White and his fellow justices was whether religious worship was less protected than other religious speech. By an 8-1 margin, the Court ruled that religious worship was protected speech.
In Widmar, approximately 100 student organizations met on the campus of the University of Missouri at Kansas City. In 1977 the university adopted a new policy that prohibited use of buildings or grounds “for purposes of religious worship or religious teaching” by student groups.3
Only one group refused to agree to the new policy. A group of evangelical Christian students called “Cornerstone,” which had met for a number of years on campus, would not pretend that their meetings did not include religious worship and religious teaching. For their honesty, the students were banned from meeting on campus.
The Widmar Court held that the university violated the students’ free speech and expressive association rights and that the establishment clause did not justify the university’s censorship. The Court ruled that the university had “discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment.”4
Alone in dissent, Justice White framed the “sole question” as the “application of the regulation to prohibit regular religious worship services in university buildings.”5 Using the terms “religious worship” and “religious services” interchangeably,6 Justice White insisted that the majority’s proposition that religious worship is like other religious speech was “plainly wrong.”7
Characterizing Justice White’s dissent as “a novel argument,”8 Justice Powell surgically dissected its premise that religious worship was not protected speech. Using four discrete reasons, he rebutted the dissent’s “attempt [at] a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious ‘speech acts,’ constituting ‘worship.’’’9
For starters, the distinction lacked “intelligible content” because the dissent could not explain “when singing hymns, reading scripture, and teaching biblical principles cease to be singing, teaching, and reading—all apparently forms of ‘speech,’ despite their religious subject matter—and become unprotected ‘worship.’”10 Nor did the dissent explain why religious worship should be less protected than “religious speech designed to win religious converts,” which was clearly protected by the First Amendment.11
But most important, a distinction between “religious worship” and “religious speech” was not “within the judicial competence to administer.” Government officials would have to “inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith.”12 The Court saw this as creating “entanglement” with religion that the establishment clause prohibited, particularly because it would be “an impossible task in an age where many and various beliefs meet the constitutional definition of religion.”13 The establishment clause would also be violated by the government “[monitoring] group meetings to ensure compliance with the rule.”14 In its 1995 Rosenberger decision, the Supreme Court reiterated Widmar’s reasoning in rejecting the Rosenberger dissent’s premise that university officials could distinguish between expression of religious viewpoints and “evangelistic speech.”15
High Court Rejection
The Widmar decision laid the foundation for two subsequent Supreme Court decisions that held unconstitutional New York school district policies denying access to religious community groups. In Lamb’s Chapel,16 the Supreme Court held that a New York school district violated a church’s free speech rights when it refused to allow the church use of a school auditorium in the evening to show a film series about family values while allowing other community groups access to discuss family values. This was viewpoint discrimination, a particularly egregious free speech violation.
In Good News Club17 the Supreme Court ruled that school officials must allow a religious community group access after school to meet with elementary-age children to learn Bible stories, verses, religious songs, and prayers. Again the dissent argued that the group’s religious speech was unprotected because it was an “evangelical service of worship.”18 But this argument was rejected by Justice Antonin Scalia, whose concurrence recited Widmar’s four specific grounds for rejecting “an approach that suffers such a wondrous diversity of flaws.”19
In Lamb’s Chapel and Good News Club, the Supreme Court reversed opinions by the same Second Circuit judge who wrote the first appellate decision in Bronx Household.20 Both times the Supreme Court rejected New York school officials’ worn argument that the establishment clause justified exclusion of religious community groups. The Supreme Court rejected the Second Circuit’s microscopic line-drawing among religious purpose, instruction, worship, and “other” religious speech. Indeed, in Good News Club the Supreme Court voiced frustration with the Second Circuit majority for its “incredible” and “remarkable” failure even to cite Lamb’s Chapel.21 But to no avail.
“Slicing and Dicing”
The “Methuselah” of religious liberty litigation, Bronx Household has spanned 17 years and spawned four separate Second Circuit opinions. Since 1994 the New York City Board of Education has “sliced and diced” religious speech to discriminate against churches while ostensibly keeping its policy within Supreme Court boundaries.
In 1997, in the first Bronx Household appellate decision, the Second Circuit upheld the board’s denial of Bronx Household’s request to use a school on Sundays for worship services. While allowing broad access for community groups generally, the written policy prohibited access for “religious services or religious instruction” while allowing access for “discussing religious material or material which contains a religious viewpoint.”22 Ignoring Widmar’s teaching that government officials should not distinguish between religious worship and other religious speech, the Second Circuit discounted Widmar as involving a university rather than a middle school.23 But are middle school officials really more capable of implementing this forbidden distinction than university officials?
The Supreme Court criticized the 1997 Bronx Household decision four years later in Good News Club. The Court explained that it had granted certiorari to address 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.”24 According to the Court, the circuit split pitted three cases permitting exclusion of religious speech (the Second, Fifth, and Ninth circuits) against two prohibiting exclusion (the Eighth and Tenth circuits). Bronx Household was the Second Circuit decision branded as on the wrong side of the split.
In light of this negative treatment of the 1997 decision, Bronx Household decided to reapply, but again access was denied. In 2003 the Second Circuit agreed with the church that Good News Club required it to find the board’s ban likely to be unconstitutional.25
But taxpayers funded nine more years of litigation as the board continued its fight. A change in the panel of judges that heard the third and fourth appeals rewarded the board’s resistance. In 2011 the Second Circuit ignored its 2003 decision and reverted to its 1997 reasoning.
In the 2011 round the city unveiled yet another policy. This time its policy permitted all religious speech except “for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”26 The Second Circuit conceded that “prayer, religious instruction, expression of devotion to God, and the singing of hymns,”27 and possibly even “religious worship,”28 were not excluded from public property, but nonetheless insisted that “religious worship services” could be prohibited.
The Second Circuit asserted that a religious worship service is a type of activity, an event rather than expression, going so far as to analogize a worship service to a livestock show.29 But it is patently clear that if a religious worship service is anything, it is an expressive activity. Singing, reading Scripture, praying, and sermonizing are simply words, and more words—at least to the agnostic government required by the establishment clause.
Perhaps even more troubling, the Second Circuit based its analysis on a mystical understanding of a worship service as “an act of organized religion that consecrates the place in which it is performed, making it a church.”30 The Court provided no rational explanation for its theological premise. Of course, its observation is unsupported by empirical observation. National cemeteries are not churches even though funeral services occur on a daily basis. Beautiful as it is, Yellowstone National Park is not a cathedral despite worship services held regularly in its campgrounds. Nor does an aircraft carrier become a church because regular worship services occur on its decks. Public property remains temporal despite the presence of worship services for an hour a week. Citizens who attend religious worship services may choose to believe that their rituals consecrate property; but judges may not make such theological pronouncements.
In discussing whether a distinction between religious worship services and other religious speech triggered an entanglement issue, remarkably, the Second Circuit did not even discuss Widmar.31 In his excellent dissent, Judge John Walker relied heavily on Widmar32 and observed that the majority “[reached] several conclusions that directly contradict controlling Supreme Court precedent.”33
It is common knowledge that the Supreme Court does not take cases simply to rein in a rogue circuit. Presumably the Court denied certiorari on December 5, 2011, because it believed that most judges will faithfully apply Widmar, Rosenberger, Lamb’s Chapel, and Good News Club.
But that is cold comfort for the religious citizens of New York City who have held several public protests in hopes that the city will rethink its policy. Bronx Household has alienated religious communities who contribute greatly to their fellow citizens’ welfare. But the greatest loss is the city’s stubborn refusal to honor authentic religious diversity and pluralism.
1 Widmar v. Vincent, 454 U.S. 263 (1981)
2 Bronx Household of Faith v. Board of Education, of New York City, 650 F.3d 30 (2d Cir. 2011), cert. denied, 132 S. Ct. 816 (Dec. 5, 2011).
3 454 U.S. at 265, note 3.
4 Ibid. at 269, (italics supplied).
5 Ibid. at 284, note 1 (White, J., dissenting).
6 Ibid. at 284, note 2. “The majority’s entire argument turns on this description of religious services as speech” (White, J., dissenting).
7 Ibid. at 284, (White, J., dissenting).
8 Ibid. at 269, note 6.
9 Ibid.
10 Ibid.
11 Ibid.
12 Ibid.
13 Ibid. at 272, note 11.
14 Ibid.
15 Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 844-846 (1995) (university violated religious student group’s free speech by denying it equal funding).
16 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
17 Good News Club v. Milford Central School, 533 U.S. 98 (2001).
18 Ibid. at 138.
19 Ibid. at 127 (Scalia J., concurring).
20 Lamb’s Chapel v. Center Moriches Union Free School District, 959 F.2d 381 (2d Cir. 1992); Good News Club v. Milford Central School, 202 F.3d 502 (2d Cir. 2000); Bronx Household of Faith v. Community School District. No. 10, 127 F.3d 207 (2d Cir. 1997).
21 533 U.S. at 109, note. 3.
22 127 F.3d at 210.
23 Ibid. at 213.
24 533 U.S. at 105, 106. See Bronx Household, 650 F.3d at 61, note 7 (Walker, J., dissenting). (“It would not have been unreasonable for the [Supreme] Court to have expected that its Good News Club decision would end this case as well.”)
25 Bronx Household of Faith v. Board of Education of the City of New York, 331 F.3d 342 (2d Cir. 2003) (granting preliminary injunction for church).
26 Bronx Household of Faith v. Board of Education of the City of New York, 650 F.3d. 30, 35, note 4 (2d Cir. 2011).
27 Ibid. at 36;. at 38. (“Similarly, SOP § 5.11 prohibits use of school facilities to conduct worship services, but does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view.”)
28 Ibid. at 36, note 6.
29 Ibid. at 37, 38.
30 Ibid. at 45 (italics supplied); at 41. (“When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school the place for the performance of its rites. . . . The place has, at least for a time, become the church.”)
31 Ibid. at 46, 47.
32 Ibid. at 56, 57 (Walker, J., dissenting).
33 Ibid. at 60 (Walker, J., dissenting).