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BRONX HOUSEHOLD OF FAITH v. BOARD OF EDUC.
650 F.3d 30 (2011)
The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiff-Appellees,
v.
BOARD OF EDUCATION OF the CITY OF NEW YORK and Community School District No. 10, Defendant-Appellants.
Docket No. 07-5291-cv.
United States Court of Appeals, Second Circuit.
Argued: October 6, 2009.
Decided: June 2, 2011.
Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, (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.
Mitchell A. Karlan, Gibson, Dunn & Crutcher LLP, New York, NY, (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.
Before: JOHN M. WALKER, JR. LEVAL, and CALABRESI, Circuit Judges.
Judge CALABRESI concurs in the opinion and has filed an additional concurring opinion.
Judge JOHN M. WALKER, JR. dissents by separate opinion.
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 Board"),1 appeal from an order of the United States District Court for the Southern District of New York (Preska, C.J.), which granted summary judgment to Plaintiffs the Bronx Household of Faith ("Bronx Household"), a Christian church, and its pastors Robert Hall and Jack Roberts, and permanently enjoined the Board from enforcing against Bronx Household a Standard Operating Procedure ("SOP") that prohibits the use of school facilities by outside groups outside of school hours for
"religious worship services." We conclude that 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. Accordingly, we reverse the judgment of the district court and vacate the injunction. BACKGROUNDThe relevant facts are familiar, and are not in dispute. See Bronx Household of Faith v. Bd. of Educ. of the City of New York (Bronx Household III), 492 F.3d 89 (2d Cir.2007). Under New York State law, a local public school district may permit its facilities to be used outside of school hours for purposes such as "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," as long as the uses are "nonexclusive and . . . open to the general public." N.Y. Educ. Code § 414(1)(c). Pursuant to this provision, New York City's Department of Education developed a written policy governing use of school facilities during after-school hours as part of its Standard Operating Procedures Manual. The policy, or SOP, permits outside groups to use school premises for the purposes described in the state law, when the premises are not being used for school programs and activities, but subject to limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property for "religious services or religious instruction."2 Bronx Household of Faith v. Cmty. Sch. Dist. No. 10 (Bronx Household I), 127 F.3d 207, 210 (2d Cir.1997). In 1994, Bronx Household applied to use space in the Anne Cross Mersereau Middle School ("M.S.206B") in the Bronx, New York, for its Sunday morning "church service[s]." Bronx Household of Faith v. Bd. of Educ. of the City of New York, 226 F.Supp.2d 401, 410 (S.D.N.Y.2002) (quoting First Affidavit of Robert Hall). According to Bronx Household's application, its services would include "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies," followed by a "fellowship meal," during which attendees "talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other." Id. The Board denied Bronx Household's application under SOP § 5.9. Bronx Household I, 127 F.3d at 211. Plaintiffs brought suit, contending that the Board's denial of Bronx Household's application constituted viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. The district court granted the Board's motion for summary judgment, and dismissed the suit. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996) (Preska, J.). We affirmed, concluding that the Department of Education had created a limited public forum by opening school facilities
only to certain activities, and that the exclusion of religious services and religious instruction was viewpoint-neutral and reasonable in light of the forum's purposes. Bronx Household I, 127 F.3d at 211-15, 217. In 2001, however, the Supreme Court ruled in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), that it was unconstitutional for a public school district in Milford, New York, to exclude from its facilities "a private Christian organization for children," which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray. Id. at 103, 121 S.Ct. 2093. The Milford district's policy, in accordance with New York state law, permitted school facilities to be used for "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community." Id. at 102, 121 S.Ct. 2093 (quoting N.Y. Educ.Code § 414(1)(c)). However, it prohibited use "by any individual or organization for religious purposes," which school district officials interpreted as prohibiting "religious worship" or "religious instruction." Id. at 103-04, 121 S.Ct. 2093. The Supreme Court concluded that the Good News Club was seeking to "address a subject otherwise permitted [in the school], the teaching of morals and character, from a religious standpoint," and, therefore, the school district's denial of the club's application constituted impermissible viewpoint discrimination in the context of a limited public forum. Id. at 109, 121 S.Ct. 2093.
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).
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.
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.
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.
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. 52. 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.
7. Judge Walker complains that our understanding of the meaning of the term "religious worship services" is "self-styled." Dissenting Op. 55-56. 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.), http://www.oed.com. (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."
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. 51-52.)
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").
10. The only fee charged is for the partial cost of custodial work, and for security services when provided by the Board.
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.
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. 61-62. 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 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.
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 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.
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.
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 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.
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.
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 36, 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 37, 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.
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, 121 S.Ct. 2093; see Maj. Op. at 43, 50. The majority 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 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, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); see also Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (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, 113 S.Ct. 2217 (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, 110 S.Ct. 1595. Because SOP § 5.11 specifically burdens religious practices, it must advance a compelling government interest to pass constitutional muster. See id. at 894-95, 110 S.Ct. 1595 (O'Connor, J., concurring). Such a compelling interest is absent in this case for the reasons stated in Part II.
5. 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.
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 41; (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 41; (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 schools used by churches are attended by young and impressionable students," Maj. Op. at 42; (4) increased availability of Sunday permits would favor Christian groups over other denominations, see Maj. Op. at 42-43; 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 43.
7. 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, 121 S.Ct. 2093 (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.
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 43, 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.
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 43. 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.
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, 125 S.Ct. 2854, 162 L.Ed.2d 607 (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 42. 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 42, is similarly misplaced.
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