In a potentially significant decision, the U.S. Court of Appeals for the Second Circuit, in The Bronx Household of Faith v. Board of Education of The City of New York, No. 12-2730-cv (2d Cir. 2014), has ruled that the Board of Education of The City of New York (“Board”) did not violate the Free Exercise and Establishment Clauses of the First Amendment when it permitted certain groups to use school facilities outside school hours, but would not allow religious worship services.

The Second Circuit, in reversing the District Court, rejected the Bronx Household congregation’s argument that the Board’s policy violated the Free Exercise clause because the congregation could not afford to gather as a full congregation at any other location without having to curtail other religious practices:

In the District Court’s view, because Bronx Household and its congregants have a constitutional right to worship as they choose without interference from government, and cannot afford to pay for a large enough site to accommodate the entire congregation, the Free Exercise Clause obligates the Board to provide them with a subsidized facility in which to exercise the right.  The Free Exercise Clause, however, has never been understood to require government to finance a subject’s exercise of religion.

In addition, the Second Circuit clarified that strict scrutiny review was not appropriate in this case because the Board’s purpose in prohibiting religious worship services is to avoid the perception that it has endorsed one religion over another:

[The Board was] motivated by the government entity’s reasonable interest in complying with the Establishment Clause. . . .  [R]ules and policies designed to keep a governmental entity in conformity with its obligations under the Religion clauses must of necessity focus on religious subject matter.  If the focus is not religious, the Religion Clauses have no application.  Such focus on religion is neither an invidious discrimination nor constitutionally suspect.  To the contrary, it is inevitable.

The Second Circuit observes, however, that it does “not mean to imply that merely by claiming the motivation of observing interests favored by the Establishment Clause a governmental entity gets a free pass, avoiding all scrutiny.”  Rather, the court “recognize[s] that a school authority’s prohibition of a religious practice, even if explained as an attempt to comply with constitutional responsibilities, can in some circumstances represent a suspect discrimination of religion, which violates one or both Religion Clauses.”

Judge Walker dissented from the majority opinion, concluding that the Board policy “violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.”  He opines that the policy is neither neutral nor generally applicable, as it burdens and targets only religious conduct.  Further, in Judge Walker’s view, “forcing the Bronx Household to relocate or suspend its services sufficiently burdens the free exercise of religion. . . .”  For these reasons, he concludes that strict scrutiny review must apply, and believes that “the Board’s interest in enforcing [the policy] to avoid an Establishment Clause violation is not compelling because it does not violate the Establishment Clause to allow Bronx Household to worship in public school facilities made broadly available to the public on neutral terms.”

Reportedly, a petition for a writ of certiorari to the United States Supreme Court may be in store.