the better rule allows the Board, if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of the Establishment Clause by hosting and subsidizing the conduct of religious worship services, to decline to do so.The majority also concluded that the Board's policy does not require it to become unconstitutionally entangled with religion in deciding what constitutes religious worship.
Judge Walker dissented, arguing that strict scrutiny should apply because the Board regulation "is neither neutral nor generally applicable in its treatment of religion." He concludes that the Board does not have a compelling interest in avoiding an Establishment Clause violation because it is clear that allowing churches to use facilities on the same neutral basis as others does not violate the Establishment Clause.
The decision is the latest in the long-running battle over church use of school space on Sundays. The 2nd Circuit in a previous decision upheld the Board's rule change against a free expression challenge. (See prior posting.) The Wall Street Journal reports that lawyers for Bronx Household of Faith plan an appeal, but that remarks by Mayor Bill DeBlasio suggest that he might be willing to change the Board policy adopted under the predecessor administration.