In Bronx Household of Faith v. Board of Education of the City of New York, (2d Cir., June 2, 2011), the 2nd Circuit, in a 2-1 decision, upheld the New York Board of Education's policy that bars use of school facilities by outside groups after school hours for "religious worship services," even though facilities were available for many other kinds of activities. The majority, in an opinion by Judge Leval, concluded:
the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons only a type of activity – the conduct of worship services. We also conclude that because Defendants reasonably seek by the 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.Judge Calabresi wrote a concurring opinion. Judge Walker dissented, arguing that the regulation imposes "impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest."
This is the fourth time the Court of Appeals was presented with the dispute involving attempts by Bronx Household of Faith to use school space for its Sunday worship services. (See prior posting.) Reuters and the New York Law Journal report on the 2nd Circuit's decision.