Bronx Household of Faith v. Board of Education

erns the use” of “extended school facilities Judge by WALKER separate dissents (the term refers to the use of facili- school opinion. ties outside of school hours outside LEVAL, Circuit Judge: individuals).2 organizations and Extended question use, This appeal permit raises the whether requires which issued City Board, the Board of Education of of in that subsidized no rent (the “Board”),1 New York for making charged use of the school facilities.3 City’s I.Q. school available of Reg. provides: facilities outside “No permit shall be litigation, During imposes this re Board was 3."While the [Board] no excess City Department named New Ed overhead) York of (profit charge on extended use See, e.g., rel. ucation. A.R. ex R.V. v. New York schools, pass-along of its there are contractu- Educ., 65, (2d City Dep’t F.3d 2 67 n. i.e., al ... costs costs incurred in schools for Cir.2005). custodial services when the use is outside Reg. § normal school hours.” IV.A. D-180 Reg. provides § ''[p]ermits D-180 I.S. may charges Users also incur for use addi- may granted clubs for students specialized equipment tional services or sponsored by organizations that are outside Reg. § facilities. See D-180 V. satisfy requirements and otherwise this regulation they on the basis that are same granted to other clubs students that are sponsored by organizations.” outside 5.11). 2, 2007, § On November purpose holding reli- Procedure for the

granted services, the Board’s de using litigation resulting or otherwise gious worship application for nial of Bronx Household’s worship.”4 a house a school as facilities “Chris permit to use school found enforce- The District Court services,” the court tian district I.Q. to exclude Reg. enjoined en the Board from permanently the Free would violate Bronx Household forcing rule. Clauses. Exercise and Establishment We 35; Faith Bronx Household F.3d conclude is con- disagree. We York, New No. Bd. of Educ. light of the Board’s reason- stitutional 7946842, *1 2007 WL Civ. to observe interests favored able concern 2007). (S.D.N.Y. The District Nov. and avoid by the its con ruling predicated Court’s liability that clause. Ac- the risk of under uncon constituted an clusion that rule injunction and cordingly, we vacate the viewpoint stitutional discrimination judgment. Court’s reverse the District and as was forbidden Sch., Cent. Good News Club v. Milford BACKGROUND 98, 111-12, 2093, 150 (2001), in which the L.Ed.2d familiarity assume facts and per Court found a school’s refusal history long-running of liti procedural this at mit to meet a Christian children’s club opinions, prior as forth our gation, set school school outside of hours because we them here as neces and recount constituted religious of the club’s nature sary ap our of this explain disposition and viewpoint discrimination violated See Bronx peal. Household Faith of speech rights. Bronx club’s free See York, City Bd. New 650 F.3d of of Educ. of City Bd. Household Faith v. (2d Cir.2011) (“Bronx IV”); of of Educ. of Household (S.D.N.Y. York, New of Bronx Household Faith v. Bd. Educ. of of 2005). (2d York, City New 492 F.3d 89 of Cir.2007) of (“Bronx III”); Household appeal, On we reversed the District Bronx Faith v. Bd. Educ. Household of of judgment injunc- Court’s and vacated the York, (2d New 331 F.3d 342 of of IV, 650 F.3d at 51. tion. Bronx Household Cir.2003); Bronx Household Faith v. of (We one incorporate opinion into this (2d No. 127 F.3d Cmty. Sch. Dist. issues we reference several Cir.1997). pertinent pres- to the there discussed are “important July adopted Reg. appeal.) Noting In ent differ- (then I.Q. an designated Operating excluding ence between conduct Standard exist, that, religious dissent permit authorizes denial of a does so as the Dissenting Op. may suggest, at be taken to (1) sought holding purpose for "the either 206-07, against the first discriminates clause (2) religious worship services” or "otherwise clause, religious worship, which the second using worship.” as a school house of distinguish religious and does not between opinion we this limit our consideration to the nonreligious putative worship, any first clause. Because we conclude that pass be sufficient constitutional application denial of Bronx Household's nonreligious it not treat muster since constitutional, permit we under this clause is favorably religious wor worship more than no have need to consider whether the Board III, at ship. Bronx Household 492 F.3d See might lawfully deny application also an J., (Calabresi, concurring); Bronx 92-106 permit solely (Calabresi, based on the second clause. 650 F.3d 51-52 Household J., concurring). Judge again granted injunction, preliminary basis for Bronx Household’s contention Bronx Household Faith v. Bd. Educ. of of the rule was hostility motivated to York, City New 855 44 of of religion. at 46. Nor would reason- (S.D.N.Y.2012),and went on grant to sum perceive able observer rule as ex- mary judgment in favor of Bronx House pression hostility light of such hold, permanently enjoining the enforce range of rale religious activity permit- Reg. I.Q. ment of Bronx Household of ted and in of light the reasonableness of York, Faith v. Educ. City Bd. New of the imposition of the guard against rule to (S.D.N.Y.2012). F.Supp.2d 419 876 being found in violation of the Establish- ment Finally, Clause. Id. at 45-46. we appealed, Defendants and this case is rejected Bronx claim that Household’s now before us for the sixth time. Board excessively would become entangled in religious matters in undertaking to de- DISCUSSION termine an applicant’s whether proposed activities a religious worship constituted The District a num- Court concluded for service. place, Id. at 46-48. In the first ber reasons the enforcement of City’s 5. We find religious did not that a violation of the Es- use of the schools for worship expose[d] City tablishment Clause had occurred or ... to a have prohibition being occurred but for the on reli- substantial risk of found to have violat- gious worship services but that “it ed rather House- Establishment Clause.” Bronx objectively worry reasonable for to hold 650 at 43. F.3d. eli theology degree programs from worship ser- tional I.Q. to exclude Reg. vio scholarships does not gibility Exercise for state the Free violate vices would Clause); v. Exercise Skoros Clause. late Free and the Establishment Clause (2d Cir.2006) York, 1, 39 New 437 F.3d disagree. respectfully (“Just may compel not government as Exercise Clause A. The Free be adopt prescribed person may worship, person no lief form 1) does not The Free Exercise itself behave in require grant Household to Bronx entitle fur will ways that the individual believes a subsidized the Board of from (in spiritual development.” her ther his or worship ser- place hold omit emphasis marks and quotation ternal vices. ted)); Dep’t v. ex. rel. Eulitt Maine Eulitt District Court found The (1st Cir.2004) Educ., F.3d of (“The I.Q. to reli exclude enforcement cannot interfere fact that the state Bronx worship services would violate gious right fundamental parent’s with a rights under the Free Exer Household’s for his or her choose education City’s are cise schools Clause because that the must child does not mean state House [Bronx “the location which choice....”); Regan see fund that also gather congregation] can afford hold’s Representation Wash Taxation With Sunday congregation as a fall [for 540, 549-50, ington, 461 U.S. having to curtail other of without services] (1983) (“We L.Ed.2d 129 have practices.” House their Bronx that a legislature’s held contexts several hold, F.Supp.2d at 426. The District of a decision not to subsidize exercise authority proposi no for this Court cited right infringe fundamental tion, know none. and we right.... reasoning decisions these govern Exercise Clause Free bars may simple: although government “prohibiting the free exercise” path person’s of a place obstacles Const, (“Con I amend. religion. speech, ... it need exercise of freedom prohibiting make law ... gress shall no those creation.” not remove not of own religion].”). the free exercise [of (internal marks brackets quotation view, because Bronx District Court’s omitted)). have a con congregants Household and its they right stitutional choose 2) ruling Lu- Supreme CouH’s in government, without interference invidiously kumi that discriminato- enough a pay large cannot afford to for targeting a ry ordinances congrega the site to accommodate entire practice particular are of tion, obligates the Free Exercise Clause ap- subject scrutiny to strict has no provide them a subsi with I.Q. plication to Reg. right. in facility dized which to exercise the Clause, however, under has Court believed that The Free Exercise District ruling govern authority Supreme of the Court’s require never been understood to subject’s Aye, Lukumi Babalu Inc. v. ment to finance a exercise of Church of Hialeah, 520, U.S. 113 S.Ct. religion. sug And to the extent such 508 of (1993) (“Lukumi 2217, ”), it 124 L.Ed.2d 472 gestion litigation, has been raised has See, I.Q. must e.g., validity Reg. of be assessed rejected. Davey, been Locke v. 1307, 158 712, scrutiny prohibits L.Ed.2d 1 under because it 124 strict U.S. (2004) premises of subsidized for (finding provision that the exclusion of devo- services, religious worship of conduct considered context that they mean no discrimination reli- constitutes thing. such gion generally, and constitutes a discrimi- Lukumi, In worshipers in the Santería religions nation against those conduct religion, which animal plays sacrifice Household,

worship services. Bronx services, important part worship were at respectfully 428-32. dis- planning to build a worship house of in the agree. our In view the District Court’s Hialeah, city of Florida. 508 at 525- reasoning is incorrect for several reasons. 26, 113 S.Ct. 2217. Members of Hialeah’s In place, the first think the District we city disapproved council prac- Santeria’s I.Q. subject Court’s that Reg. view is and, tice of animal sacrifice a goal scrutiny strict is on a based misunder- banning practice, passed the council standing Secondly, of Lukumi on facts set of ordinances prohibiting the unneces- these, very similar to animals sary killing of a ritual cere- rejected scrutiny. has of strict applicability mony not primarily purpose of food Furthermore, governmental a reasonable consumption. 526-28, Id. 113 S.Ct. category decision not to subsidize a 2217. Hialeah claimed that prohibition activity not a suspect discrimination objectives was motivated secular in- religions among merely because some cluding public health and prevention of gions not engage do and others do in that cruelty 527-28, to animals. Id. at activity. Although

S.Ct. 2217. the set ordi- a) Suspect discrimination designed nances was appear apply

against religion. even-handedly secular alike, conduct a plethora exceptions The District Court believed (exempting, example, fishing exclusions under the Lukumi precedent, because the slaughter) prohibi and Kosher made the conduct is an apply exclusively tion almost to the Sante activity that has no secular deci analog, a ría ritual of animal sacrifice. sion by the Board not to subsidize (“[A]lmost 113 S.Ct. 2217 necessarily suspect discrimination subject prohibition] [the is the against religion to be assessed under strict members.”). exercise Santería church scrutiny. 4; But see note Bronx House addition, legislative history revealed III, (Calabresi, hold 492 F.3d at 92-106 J. disapproval animal sacrifice as a concurring); Bronx Household Santería ritual had fact moti (Calabresi, J., F.3d at concurring). 51-52 legislators. vated the Id. at It is correct without question that in de (“[Suppression of the central ele clining to furnish school facilities for the the Santería service was services, conduct of ordinances.”). object Further on a religious activity focuses that has more, although legislation claimed a analog. thing no secular is no There goals, objectives of secular variety those nonreligious as a “religious worship ser by were exclusions that incom view, our belied were vice.” In the District Court’s patible goals with they is those because misunderstanding conclusion based on a widely permitted of animal sacrifice outside opinion. the Court’s While the of there are indeed words the Lukumi context Santería ceremo which, opinion, context, if out of nies. Id. at taken S.Ct. 2217. Because could be read as expressing prohibition such a mes the was found to be motivated sage, disapproval it becomes clear by religious practice when the words are of a and it, by appearing religion. to suppress and Clause endorse attempt an

represented because, disguise, importance it in This is of crucial notwithstanding its difference the reach of Lukumi’s exclusively rea- determining to the fact almost applied sacrifice, regulation the fo- soning of animal Su- that a burdensome Santería ritual the ordinances religious practice found that on a is constitu- preme Court cused scrutiny, subject to strict and therefore subject tionally suspect were and free exercise plaintiffs’ the makes they scrutiny. reasoning violated This strict 547,113 Id. rights. regulation’s focus perfect sense when the gratuitous, on is and all the more religion indeed, opinion, The Lukumi declared by of disapproval so when it is motivated “government, pur- “principle” that (or religion religion particular of a or interests, in a cannot legitimate of suit hand, the other gious practice). On burdens on impose only selective manner regulation’s fo- no sense when the makes id. belief,” by religious conduct motivated govern- cus is religion on motivated added), (emphasis in com- entity’s mental reasonable interest scrutiny. It charac- justifying thus strict with the Establishment Clause. plying “essential to the principle terized this as and Free Exercise Establishment rights guaranteed by the of the protection all place on the Clauses limits Yet, are Free Clause.” there Exercise governmental The Free Exercise entities. the facts crucial between differences from inter- prohibits government Clause Lukumi and those present in the case. fering religion. free with exercise in Lukumi were First, in- the ordinances prohibits govern- did, suppress to, tended in conduct engaging ment from faith, by prohibiting ritual a particular religion, an establishment of constitute city. Reg. I.Q. in the performance its endorse, endorsing, seeming or religions It all free thing. no such leaves It religion. extent engage whatever without interference religion governmental conduct affects they (including, choose religious practices Religion Claus- restrictive force services) course, Accordingly, operative. es rules City. only a throughout represents It designed keep governmental policies by the Board not subsidize decision obligations entity conformity with by providing worship services neces- Religion Clauses must of under facilities in which to con- rent-free school If sity subject focus on matter. duct them. Religion not religious, focus is Second, the Hialeah ordinances have no focus application. Clauses Such disap city council’s were motivated religion is neither an invidious discrimi- practice. proval targeted religious To constitutionally suspect. nor nation The Board has no such motivation. There it is contrary, inevitable. is not a scintilla evidence illustrate, a number of reli To we consider disapproves might pur- with the gion practice, adopted reli rules that including gious pose complying Religion sole Claus- worship services. Its reason state, city might “This excluding religious worship es. One such rule practice that adopt any shall not rule or from its facilities is the concern that the free hosting improper an burden on subsidizing religious constitutes services, meaning religion, run a or that constitutes the Board would exercise Or a school violating religion.” ful risk of the Establishment establishment

193 a might stating, gion give rule “No in to adopt board order effect to the Constitu any compel teacher student Clauses, school or shall tion’s which Religion themselves exercises, religious in participate to apply only religion. to Yet under the Dis persuade any seek to student to alter his trict analysis, stating Court’s a statute religious can or her beliefs.” Such rules rule of pass Lukumi would fail to the test constitutionally in hardly suspect Lukumi, be view of and a stating statute the rule they constitutionally of the fact that are of Hosanna-Tabor would fail to pass the further, Going a Hi mandated. reformed test of Hosanna-Tabor. We believe the aleah, by Supreme chastened Court’s District has Court misunderstood Lukumi Lukumi, might new ruling adopt a ordi it to construing mean a rule declin Supreme nance that summarizes ing to subsidize worship services ruling. might pro Court’s The ordinance so as risk violating not to the Establish like, something vide “Under circum no automatically Clause is constitution pass stances will this city ally ordinance suspect subject to scrutiny. strict prohibiting any practice undertaken as a b) Davey. Locke v. exercise, similarly pro unless practice a hibits the when done in secular importantly, upon very More facts context, ours, no circumstances will a Supreme similar to Court has practice prohibited of disap expressly because ruled that by where motivated proval concerns, as a practice cere govern Establishment Clause a Or, mony.” in recognition Supreme mental specified decision exclude reli Court’s recent ruling gious Hosanna-Tabor from eligibility causes to receive Evangelical Lutheran Church & Sch. v. state educational subsidies is neither a vio — E.E.O.C., U.S.-, 694, exercise, 132 181 lation of subject S.Ct. free nor even Lukumi,6 (2012), a scrutiny L.Ed.2d that there consti- strict under In Locke tutionally compelled 712, 1307, excep- Davey, “ministerial (2004), tion” forbidding to the laws Washington discrimination L.Ed.2d the State of in employment, Congress pass a had might scholarship established a program amending academically gifted post- statute the federal that for- assist laws students in 715, employment, stating secondary bid discrimination in education. 540 U.S. at like, something however, state, “No minister of provided S.Ct. 1307. against by faith shall have a provision claim the church statute and of its constitu religious organization that employs pursuing degree tion that students minister for the performance theology of ministerial were not eligible receive duties.” These hypothetical scholarship grants. rules —the Id. 124 S.Ct. very rules declared 1307. restriction challenged This student, to be constitutionally Davey, gifted mandated —do not who was awarded represent grant invidious discrimination but was that it informed could constitutionally degree and are not sus- pursue pastoral be used pect simply they sought. because limitations ministries he target impose religion. They target brought among 1307. Davey alleging, suit Judge argues Walker in his mental decision not subsidize dissent applicable “Locke is here ... because it by providing rent-free facili- government subsidy.” dealt with a Dis- supra pp. ties to See house services. However, Op. senting also con- Therefore, 190-91, Locke not dis- 191-92. government subsidy. cerns a As discussed tinguishable ground. on this above, regulation represents govern- in religion toward Finding no animus claims, refusal to the state’s other prohi- text of the legislative history the or scholarship funds for the its allow of use bition, operation in the of the scholar- nor was, under rule of the study theology of evi- finding and substantial ship program, Lukumi, unconstitutional presumptively to aversion indicating historical dence 720, scrutiny. at Id. to strict subject ministry, to the using support tax funds the Recognizing state’s S.Ct. one of the hallmarks of “which was underlying interest Clause Establishment 722-25, at religion,” id. ‘established’ restriction, observed that the Court the 1307, the Court concluded S.Ct. ... are [Religion] Clauses two “[t]he[ ] state “[g]iven the historic and substantial long in Yet we have frequently tension. issue, we interest [anti-establishment] the play room said that there is that the denial therefore cannot conclude words, In other them. joints between religious instruc- of for vocational funding by actions permitted there some state are constitutionally inherently is tion alone required but not the Clause Ac- 124 S.Ct. 1307. suspect.” Id. at 718- Clause.” Id. Free Exercise the Davey’s cordingly, Free Exercise (citations internal 124 S.Ct. 1307 [anti- claim failed because State’s “[t]he omitted). Specifically marks ad- quotation funding in not interest establishment] Davey’s prohibition that the dressing claim is pursuit degrees of devotional substantial unconstitutional and presumptively of funding places and the exclusion subject scrutiny pursuant to Lu- to strict eligi- relatively [students minor burden on kumi, the Court concluded: scholarship ble funds].” reject presumptive claim of his We of of Washington’s As exclusion students however; to do oth- unconstitutionality, theology state’s eligibility for the line would extend Lukumi erwise scrutiny subject not to strict subsidies was beyond not their facts cases well under the exclusion was Lukumi because reasoning. their in the but enacted interest establishment Lukumi concerns, why can reason it a to en- we see no Hialeah made crime city of case. rule should be different this slaugh- of animal in certain kinds gage meaningful see no distinctions between sought found that law ter. We reveals animus the cases. Our record no animal ritualistic sacrifices of suppress generally par- religion toward toward religion. present In the the Santería religion, religious practice ticular ei- (if case, religion it the State’s disfavor Reg. I.Q. operation ther the or the text that) is of a far milder can be called policy. Underlying the Board’s Board’s imposes It neither criminal nor kind. slightly is a different manifes- prohibition any type civil sanctions on tation same constitu- historical and deny It does service or rite. public tional use of funds to aversion right participate ministers religion support practice cited community. political affairs of the And Locke, As in the Court Locke. require students choose in respecting principle Board’s interest their and re- between beliefs Establishment Clause that disfavors ceiving benefit. substantial, funding public merely has chosen not to fund a State burden, if it called properly and the can category distinct of instruction. burden, that falls Bronx Household (citations 720-21, needing Id. at find a location that not subsi- omitted). for the dized footnote services, minor from religious worship religions a that do Reg. I.Q. not. treats all point religions constitutional view. in the same fashion. It leaves all religions free to engage prac- whatever imply merely by not mean to We do they tices wish anywhere other than the claiming observing the motivation of inter- Furthermore, Board’s school facilities. to ests favored Establishment the extent that religions different choose entity gets a a free governmental pass, to avail themselves of the Board’s subsi- avoiding scrutiny. recognize all that a facilities, Reg. I.Q. dized treats them all authority’s prohibition school similarly they may to what may do and practice, attempt even if as an explained not do. The “religious worship services” with comply responsibilities, constitutional prohibition bars all of conduct can in represent some circumstances a sus- worship services in the school facilities. pect against religion, discrimination which The activities not prohibited are likewise Religion violates one or both of the Claus- permitted to all users. rejected, court likely es. A have Religions that conduct example, worship claim Hialeah that its ordi- nances, services are not excluded prohibited which almost exclusive- from the use of ly religious practice They school facilities. Santería may church, pur- were use the for the permissible light of Hial- facilities same poses the same manner as observing eah’s interest the Establish- Club, by religions facilities are used do Good not Clause. See News (“[AJccord- 112-19, religious worship conduct They services. U.S. S.Ct. 2093 Milford, may religion, use the facilities to teach ing required its restriction was Bible, read from and to avoid discuss advocate violating Establishment their religious views, sing hymns, disagree.”). say Clause. We prayers, and things do all that must be point Our is therefore not that a refusal permitted under the rule of Good News a religious practice, sought subsidize true, religions, Club. may Such it is not use justified be as an effort to comply the school facilities for the conduct reli- Clause, necessarily defeats gious worship Reg. I.Q. services. While claim violation of the Free Exercise religions thus treats these classes of two It Clause. is rather that Lukumi’s invoca- equally, impact will on them be differ- presumptive unconstitutionally tion of religions ent to the extent that that do not scrutiny strict reasonably cannot be under- religious worship conduct not services will apply stood to to rules that on focus reli- apply to conduct worship services gious practices observing the interest of and will therefore not refused some- the concerns the Establishment Clause. thing might wanted, they have while constitutionality of such rales must be gions do conduct neutrally assessed all the facts and not services, Household, may such as Bronx scrutiny. under strict ask to and be denied. c) Discrimination particular religions. follow, however, It does not disagree We also with the District disparate impact violates Free Reg. I.Q. Court’s view that is a constitu Exercise is a basic Clause. tenet “[I]t tionally suspect among discrimination First im disparate reli Amendment law gions not, religions pact itself, because it affects that con viewpoint does constitute duct services and Legal affect discrimination.” Christian Soc. contrary to these constitu- California, Has were enacted Univ. Chapter Coll, void.”). Martinez, they principles, the Law 561 tional are tings 2971, 2996, 661, 130 177 L.Ed.2d Thus, it clear that the Free Exercise Lukumi, (2010). reason for the Board prohibit Clause would the Hialeah ordinances striking down seeking to those denying permits wished not that the Santería killing school facilities for ani- use other reli animal sacrifice while practice mals, boxing, martial arts or for or other of Sante gions prohibition did not. contests, long so as the Board’s restric- was struck ritual animal sacrifice ria’s usage applies to secular as well as tion the showed that because evidence down by religious, and was not motivated dis- exclusively was motivated prohibition the criminatory disapproval any particular discriminatory of that reli by disapproval is not religion’s The Board practices. city’s and that the claim gious practice, permit practice it has a compelled to by were motivated that the ordinances justifiable just be- excluding reason for neutral concerns public health and other one may cause the exclusion affect reli- implication the false. It is clear was gion that the excluded conduct practices opinion prohi- if the Court’s Supreme affecting religions while not other that do across-the-board, affect- applied had bition not. practice equally, ing religious and secular remotely Nothing sup- in this record by hostility to and had not been motivated disapproves ports finding that the Board prohibi- religious practice, the Santeria’s religious worship or services wishes upheld, have notwith- tion would been religions not practice favor that do have standing that it would burdened the gious worship services over those that do. similarly without burden- religion Santería only to act con- The Board’s motivation is practice do not religions other that ing sistently its establishment concerns Lukumi, 508 at animal sacrifice. See Es- protect against itself reasonable (“Those in office must challenges.7 Clause tablishment importunate resisting be de- resolute that invocation and must the sole rea- We conclude that Lukumi’s mands ensure scrutiny application law has no burdens of strict imposing sons the facts, I.Q. may Reg. and that does not Legislators are secular. these regulation mechanisms, disguised, impose overt an unconstitutional burden on not devise or right Bronx Household’s free exercise designed persecute oppress or question religion.8 practices. its The laws here passage descriptive, 7. Court its This rather than Nor was the District correct in I.Q. "general- Reg. "re- the prescriptive, discriminates and included word view ligions presence the 'the ordained' model.” an ly" that fit to make clear that the Household, feature, merely Bronx a common officiant was There no evidence whatsoever requirement of a not definitional I.Q. Reg. applies pro- Board where specifying service. Far from posed religious worship service would con- an essential feature of ordained officiant is by minister. The District ducted an ordained applies, to which Board services perhaps finding our earli- Court based this on essentially applicants left has it state TV er observation in Household Bronx they will conduct whether "[r]eligious worship are conducted services. according particu- dictated rules Alternatively, the same sensible result could generally lar establishment and are through other be reached two routes inter- performed an officiant of the church First, added). "principle” religion.” (emphasis pretation. Lukumi 650 F.3d at 41 3) reasonable, good being has a sible position of compelled its If peril violating to risk making Religion concern that one its school Clause

faith or the other if wrongly guessed it available facilities Establishment Clause’s exact contours. religious worship services tvould Second, the District Court’s rule contra- give rise to a substantial risk of nearly comparable dicts the most Supreme Clause, violating the Establishment authority, as well as clear Second permissibility re- Board’s authority. Circuit to do so turn fusal whether such school use No extant decision facilities violate Establish- Court permits the Board to predict with fact Clause. confidence it might whether be found in violation of the Establishment if TV, inAs Bronx Household we do offers school facilities to Bronx House- question reach the whether the Board hold, churches, as well as numerous other would violate the Establishment Clause for the conduct of worship subsidized ser- allowing the subsidized use of the school (virtually vices all of which would be Chris- facilities worship for be- services tian services held on Sundays, as that is cause it unnecessary we believe so. do when the school facilities are avail- most acknowledged District Court a use). able Essentially for two choices motivation to avoid of violation the Estab- open are to the Board. It can either make justify lishment Clause would the Board’s services, its facilities available for religious worship exclusion of services if or decline to do so. If the rule were as the allowing religious worship the conduct of proposed, guess District Court a wrong would fact violate the Estab- Supreme to what the Court eventually will lishment expressed Clause. But the court put hold would the Board violation of the view unless practice the excluded Religion one of the two If Clauses. the would in fact constitute a violation Board declines to and host reli- subsidize Clause, steering Establishment clear services, gious worship Supreme and the might conduct reasonably be suspect eventually allowing Court rules that reli- under the Establishment Clause gious worship services would not violate adequate furnish reason declining Clause, the Establishment the Board offer the school facilities for conduct of years have would committed of violations religious worship services. Bronx House- of the Free rights Exercise Clause re- hold, 876 433-37. Board jected permit applicants. other On the contends this was error. hand, if the Board offers its facilities accept We cannot the District services, Court’s religious worship subsidized First, rule for two reasons. this rule the Supreme eventually Court rules that unfairly put would the Board in an impos- practice causes sufficient appearance "government, pursuit legitimate apply, govern- inter- but be deemed satisfied when ests, impose cannot in a selective manner ment decides not to subsidize a practice good burdens acting conduct motivated reli- aon faith and reason- belief,” gious subsidizing 508 U.S. at 113 S.Ct. 2217 able concern that such would added), (emphasis might present inappli- meaningful being be deemed a risk of found in present ground cable to the case on the violation of the Establishment Re- Clause. gardless analytical decision to subsidize a reli- of which of these three gious activity used, validity is not deemed constitute formulas is meaning activity, "burden” on that within the be would sustained Bronx House- Or, scrutiny” may challenge. Lukumi. the "strict test hold’s Lukumi-based required by the Free Exercise Clause.... violation of to constitute

of endorsement Clause, Reli- the Board If room exists between two Clauses, years violation gion have committed it must here.” would (internal District Court’s 718-19, 725, that clause. Under rule, compelled would be omitted). the Board If it clear quotation marks way little which speculate guidance was free in Washington that the State of go, eventually will Supreme Court to ex- service of interests establishment commit- wrong, if it would have guesses it eligibility for theology clude students Reli- of one of the ted extensive violations scholarships, though making them even ex- Such a rule would be gion Clauses. eligible not have violated the Estab- In our to the ceedingly unfair Board. Clause, why see no reason lishment we Board, if view, rule allows the the better similarly may not in service of reasonable, judgment good faith makes interests decline subsidize establishment incurring risk of that it runs a substantial services, if even subsidiz- violation of the Establishment ing them would not violate Establish- subsidizing hosting ment Clause. services, gious to decline to do so.9 Furthermore, has repeatedly our court Furthermore, rejected the District Court’s rule. expressly rejected the District Locke Coop. Marchi v. Bd. Educ. Servs. of above, explained As we Court’s rule. (2d Cir.1999), we Albany, F.3d ruling ques- was on the Locke Court a teacher’s claim that his First considered Washington, the State of act- tion whether were violated rights Amendment histori- pursuant to constitutional and ing school directive that he “cease and board government funding cal about concerns reli using desist from references to lawfully religious practices, could exclude gion delivery in the instructional [his] seeking degrees theology in students program required unless it is element scholarship eligibility grants. for state a course of instruction for students [his] ruling that the did not violate the exclusion prior supervi and approval [his] has plaintiff rights free exercise who at 472-73. We decided that the sor.” Id. ineligible grant for funds because he was in impermissibly school not board “d[id] degree theology, in pursuing in fringe free rights” Marchi’s exercise rejected explicitly considered and prohibit com interpreting the directive to argument that establishment concerns “sufficiently reli munications that intruded justify religion-based could exclusion matter, a curricular not gious content into only reviewing if the court concluded that religion, such that the school au involving subsidy granting for the excluded reasonably thorities could be concerned gious purpose would in fact violate the that communications this sort would explained, Clause. It set Establishment above, expose it non-frivolous Establishment play forth that “there is room for challenges.” recog Id. at 477. We joints Clause Religion between Claus- [the government nized endeavors to permitted by that “when [S]ome state actions es].... police employees ... itself and its an effort the Establishment Clause [are] 557, 585, employer DeStefano, disparate impact, the Ricci v. 557 U.S. unintentional Cf. (2009) strong have a basis evidence to be- 174 L.Ed.2d 490 must VII, ("[UJnder disparate-impact subject employer an can it will be Title before lieve race-conscious, engage liability if it to take the in intentional discrimination for the fails action.”). discriminatory remedying purpose avoiding asserted transgressing create a avoid substantial risk of liability under limits, it must be Clause accorded some Establishment Clause. Su- “[T]he preme even leeway, though conduct forbids Court has warned that violation of might inevitably be determined to vio- the Establishment Clause can result from perception late the Establishment Clause” because endorsement. The Estab- Clause, agencies least, decisions governmental very “[t]he lishment prohib- determining when are at they make risk from appearing to take a position questions Establishment Clause violations are dif- on belief.” (“[I]n (internal 476; dealing ficult.” Id. see id. quotation F.3d at marks omitted). employees, [governmental agen- with their explained, As we during Sunday services, pre- cannot be so expected injunc- cies] resolve under the District Court’s tion, cisely the inevitable tensions between the Board’s schools are dominated and Free Establishment Clause Exer- church use: post signs, “Church members they may flyers, cise forbid em- distribute proselytize and outside that, ployee occurring, conduct if schools, would the school buildings. In some no violate the organizations Establishment Clause must other space. outside use the all employee pro- tolerate if on Accordingly, Sundays, some schools ef- as to non-employees, hibited fectively would violate become [as] churches both church Clause.”). the Free congregants Exercise public members of the identify the churches with the schools.” York, City And in Skoros v. New Id. at 42. noted also that the fact that (2d Cir.2006), F.3d 1 we considered Free school facilities are available for use challenge Exercise Clause to New York primarily Sundays results in an unin- Department school Education’s hol- religions, tended bias favor Christian iday display which policy, pro- had been prescribe which Sunday principal as the mulgated light of Establishment Clause services, day while Jews policy concerns. The permitted dis- Muslims, example, hold ser- play holiday symbols of “secular” including days vices on during which school facilities trees, Christmas menorahs the star and are less available for use. at such 43. and not permit crescent but did a creche to this, All explained which we in greater symbol be displayed as a of Christmas. detail opinion, in our earlier supports Id. at 5-6. We holiday decided that the reasonable concern the part on of the policy display did not violate the Free hosting subsidizing Board that and the and, so, Exercise Clause in doing recog- might conduct of services though policy might nized that even the support a non-frivolous claim that permitted displayed have a creche to be creating Board is public perception violating without the Establishment endorsement of Id. at religion. 42. Clause, government “we afford some leeway policing itself to avoid Establish- (1) In view the absence of dis issues, thereby ment Clause even if it im- criminatory part animus on the poses go beyond required limits that those religion, against religions Board against by the Constitution.” Id. at 34-35. (2) services; that conduct worship case, Returning present to the as bona we fides and the reasonableness explained at length offering Bronx Board’s concern facili Household school IV, the Board has religious substantial reasons for ties for the subsidized conduct hosting concern that subsidizing worship services would create substantial conduct of incurring services would risk of violation the Estab- (3) Furthermore, claim; at the fact services.” 650 F.3d lishment (a) argu- per- all we that Bronx Household’s leaves noted policy that the Board’s nature of the religions practice “overlook[ed] free sons and (b) choose, they placed government as on officials interference duties without users, secu- all whether Establishment Clause.” Id. treats (c) fashion, lar, imposes no govern- prohibits in identical Establishment Clause leaving all free to any religion, taking burden on action ment officials they wherever conduct would constitute an establishment of schools; as circumstances, than the Board’s choose other gion. many especially recited in this well the other reasons dealing applications when with conduct Household we opinion and Bronx public on arguably religious exercises Reg. violate conclude government officials cannot dis- property, of reli- rights to free exercise Plaintiffs’ charge obligations their under Estab- subject it is strict gion, or not whether examining lishment Clause without scrutiny. it is in fact determine whether and, so, if whether the conduct B. The Establishment Clause allowing to take such nature place public property would constitute 1) erred in conclud- The District Court religion. If prohibited establishment I.Q. violates the Estab- ing un- public permitted were not officials compels because it lishment Clause inquiries, they dertake such could not dis- excessively en- to become the Board guard against their viola- charge duties religion by deciding tangled with Thus, tion of Establishment Clause. worship services. what are Constitution, forbidding gov- far from Court ruled that The District arguably religious ernment examination of very determining whether a Board’s act of conduct, compels offi- times is a proposed use of the school facilities such in order inspection cials to undertake (and religious worship service therefore constitutionally necessary to draw distinc- I.Q.) by Reg. would constitute prohibited tions. We concluded that “the mere act religion, entanglement an excessive conduct” did not inspection Clause. which violates the Establishment observ- entanglement, constitute excessive Household, at 440- Bronx prohibit inspection that to “would ing 45; Kurtzman, 403 Lemon v. see effectively nullify 612-13, L.Ed.2d 745 Clause.” Id. (1971). for a number of rea disagree sons. remand, concluded On the District Court “[fjactual developments in and legal this was before us Bronx

When case presented since Household merit recon- [Bronx IV] Bronx Household Household Establishment argument. rejected us the We sideration Plaintiffs’ with same Household, First, merit Clause claim.” Bronx it. we noted whatever particular, the F.Supp.2d have in other circum- at 60-61. argument might the stances, pointed no here District Court to “new facts docu- application it could have acknowledged menting policy how the Board’s current because Bronx Household governmental entangle- worship excessive religious its intention to conduct fosters Supreme recent appli- in the facilities. Its ment” the Court’s school specified Id. at 64. permit for an use decision Hosanna-Tabor. cation extended District believed this decision worship its to conduct The Court intention “Christian “em- pertinent the hibited uses ... because described Chancellor’s berth phasized the wide institu- Regulation App. D-180.” 996.15 The with their given respect tions are to be Board reviews the applicant’s “Description activities, including core Id. at worship.” Activities be conducted” to see Upon reconsidering Bronx House- applicant the whether has stated an inten- claim, hold’s tion to conduct worship services. I.Q. District that Reg. Court concluded It proposed does not consider whether ac- compels exces- Board officials become tivities that the application does not de- sively entangled religion by requiring a religious scribe as service in worship fact them “to make their own bureaucratic de- constitute service. The terminations as to what ‘wor- constitutes may, however, beyond Board look ap- ” ship,’ contravening Hosannah-Tabor’s plication applicant’s website and prohibition involve- other public applicant materials. If the ment decisions. Bronx ecclesiastical states on its website or in other public Household, an materials intention to conduct a reli- respectfully disagree. The eviden- gious worship service having without ac- tiary record not sustain does the district knowledged applica- intention its findings court’s that the Board makes its tion, Board may request either an own determination whether an applicant’s explanation apparent discrepancy or proposed constitute a activities deny application §to pursuant II.L of And, event, any service. Ho- Reg. D-180. As with to the respect appli- support sanncu-Tabor propo- itself, cation reviewing applicant’s sition that improper it would be for the materials, public website other Board to make such determination. Board does make own assessment its policy Board’s not to make its whether the described activities constitute own pro- determination whether conduct religious worship but limits service posed by an applicant constitutes inquiry applicant’s own characteriza- gious worship contrary, To service. Board, furthermore, tion. The makes no rely appli- the Board’s is to policy on the define, attempt applicants impose cant’s own characterization as to whether of, a definition what a “reli- constitutes the applicant will conduct gious worship service.” D-180, every services. ex- Under it is Although uncontradicted applicant appli- tended use must submit an policy is not to make its own Board’s de- permit. application cation for a form pro- termination whether an applicant’s requires the applicant provide a “De- posed activities constitute a wor- conducted,” scription of Activities to be service, rely but ship exclusively rather to sign and to Infor- certification “the characterization, applicant’s on the own mation I ... provided complete have the District Court nonetheless concluded my accurate to best of knowl- edge,” entangle- “the that Reg. compels and that activities to con- excessive pro- ducted ... acknowledged do not include because § Reg. ("Providing governing buildings 15. See D-180 also II.L tions the use of school incorrect, incomplete, misleading informa- grounds, may lead to the revocation of Application tion on the failure Permit or the permit, Appli- the the denial of future Permit any guidelines to conform to of the and/or by legal and other actions the cations regulation, limitations contained this as [Board].”). applicable regula- well as other laws and ing may applicant’s it examine an making its own deter- of not policy that its (in every public and other materials ad- instance been website had not mination Household, a application) Bronx dition the was not devia- out. carried properly example, accepting For Board’s policy at 440-41. tion from the F.Supp.2d (not an acknowledged instance an own characterization of applicant’s Board the Household) which, con- a Bronx activities involving whether its constitute permit applicant a trary policy, According to Board to the Board’s worship service. con- that the activities to be policy, only applicant who indicated it when an itself “Prayer” “Bible ducted included a characterizes its conduct as representative Board Study” was told a service that the Board will consid- ok, be but not study “Bible er it The of the Board’s aspect to be such. The fact prayer meetings.” appli- at an policy .there that allows to look instances, Bronx involving none have been public and other materials cant’s website Household, personnel im- which application rep- to the does addition policy deviated from Board’s properly policy using resent a deviation from the justify District Court’s conclu- cannot characterization. applicant’s an own en- Reg. I.Q. compels excessive sion the Board not make its Because therefore tanglement and is unconstitu- applicant’s own whether an determinations tional. proposed worship ser- activities constitute justified its find- The District also Court vices, interpretation the District Court’s fact that the Board’s ing based prohibiting govern- a Hosannar-Tabor permits inspect the Board policy authority making such deter- mental public other mate- applicant’s website But, even pertinence. has no if minations explained, The court rials. making own determina- Board were looking beyond tions, this approach prohibit While Hosannar-Tabor would Use the four corners of Extended policy. Supreme such a Court’s rul- Application may proper purposes ing supports opposite rather conclu- verifying political commercial sion. D- compliance with Ch. applicant’s Hosanna-Tabor, Perich, plaintiff verifying said of cannot be same to teach in employed who was a church applicant comply whether regarded by church as that capacity worship-related ing provisions minister, a,of was from her em dismissed regulation. This is because it is of the ployment after an illness and developing alone who can adherents period disability leave. 132 taking how “shape for themselves determine rein plaintiff S.Ct. at 700. The sued for Hosannar-Tabor, faith,” their own 132 statement, alleging that her dismissal vio and no amount of bureaucratic lated the Americans with Disabilities Act nd-guessing— seco if based even (the “ADA”), § 12101 et seq. U.S.C. solely on adherents’ own word s — (1990). Id. at may province. invade their church, .that, holding ruled in favor Household, Bronx plaintiff employed because the (citation, internal quotation brackets and minister, no she had claim church as omitted). marks employment against the church under the laws. at 707-10. The reason- discrimination We believe the District Court’s First, the Free Ex respects. as Court reasoned because ing was flawed in two requires religions be above, ercise Clause explained policy provid- the Board’s ministers, First, free to select their own the constitutional impropriety because the Establishment Clause of- led the Court to read a min- by fended giving power the state the to isterial exception employment into the dis- determine which individuals will minister crimination statutes present is not church, to the faithful on behalf of a there these facts. problem The in Hosanna- is an implicit, constitutionally mandated Tabor was unless the employment exception” “ministerial to employment discrimination laws are read apply not to discrimination laws. The explained, to a claim against a church a minister

Requiring a accept church to or retain asserting a right to employment, the con- minister, an unwanted punishing sequence would be that governmental so, church failing upon do intrudes authority judge, or a jury, or an admin- —a more than a employment mere decision. istrative agency dictate to the —would Such action interferes with the internal church whom it employ must to serve as church, governance of the depriving the minister, communicating teachings its church of control over the selection of its faithful. governmental The authority those who will personify its By beliefs. would, significant extent, to a be directing, imposing minister, an unwanted shaping and controlling the ecclesiastical state infringes the Free Exercise actions of the church. Clause, protects which religious group’s right shape its own faith The Board deciding for itself whether an mission through its appointments. Ac- applicant’s proposed conduct constitutes a cording the state the power to deter- religious worship service would not entail mine which individuals will minister to imposing any such control over a church’s the faithful also violates the Establish- religious activity. Hosanna-Tabor, Unlike Clause, prohibits govern- which where a authority would be ment involvement in such ecclesiastical requiring a church to communicate the decisions. tenets of its faith through a minister not of Id. at 706. its own choosing, under no circumstances would the Board Reg. I.Q. under be telling case, present even if the Board any person or entity how conduct wor- were making its own determination ship only services. The practical conse- whether an applicant’s proposed conduct quences that would turn on the Board’s service, constitutes a worship decision would be whether Hosanna-Tabor support would not would make its conclusion that the subsidized school facilities prohibits a governmental applicant. available to the entity applicant from mak- ing that determination. This is for would remain free shape two reasons. worship services in any way it chose.16 Nor could a decision the Board applicant overrul- activities that the did not consider a ing applicant’s an understanding own religious worship service to be a proposed circumstance, whether activities worship constituted a reli- service. In that gious worship definition, deprive appli- service ever only prohibit the denial would use opportunity cant of the to conduct applicant what it for activities that the did not consid- deemed to be a service. er to be service. The permit application denial of a application based on opportunity would have lost no rejection applicant’s Board’s own conduct a service because proposed characterization of the activities Board’s own characterization of the would occur when the proposed Board deemed activities.

Hosanna-Tabor, moreover, not to make its own determination undertook minister the was a sub plaintiff whether Bronx Household’s merely support fail to exception. Based on ject to the ministerial Clause violation claim pertinent the facts entanglement by the own assessment of to excessive due as Board; argu- (including nature the duties contradicts the the actively her), that the Court determined signed in This because Hosanna-Tabor ment. at 707- was a minister. See 132 S.Ct. precisely itself did she Supreme the Court (“As instruction, a source of govern- the found a what District Court in important role performed Perich doing. from entity prohibited mental transmitting Lutheran to the next the faith implicit that The conclusion there is an ... title light the formal generation. a minister exception ministerial bars Church, Perich the substance given by the her suing employs church that the title, in that her own use of reflected the case. under the ADA did resolve title, the functions important plain- whether the question remained the con performed she Church —we subject to the was a minister and thus tiff a covered clude that was minister Perich ministerial It exception. undisputed was exception.”).18 the ministerial that, according to the church’s classifica- tion, all above and plaintiff the served in the role of For the reasons outlined earlier minister.17 If the District as well as those we discussed our commissioned correct, which were the church’s classifica- decision Bronx Household we Court them, need repeat the as a minister would now reaffirm plaintiff tion of without matter; District erred Supreme have ended the we conclude that the Court, governmental authority, concluding Reg. I.Q. would in violates (so compelled compelling have as to avoid exces- Establishment Clause been entanglement) to church’s to make decisions that constitute accept sive entanglement religion.19 so. It excessive designation. The Court did not do Synod two her a Id. at "The classifies teachers into that the church deemed minister. JK., (Thomas, categories: ‘lay.’ ("Hosanna-Ta concurring) 'called' and ... Once called, a the formal title teacher receives sincerely a minister. bor considered Perich Religion, 'Minister Ho- Commissioned’.... to conclude That be sufficient me plaintiff] [the sanna-Tabor asked to become properly by that Perich’s suit is barred accepted called teacher. the call [She] exception.”). justice joined No ministerial 'diploma designating received of vocation’ objection. eight Justice All of the Thomas’s her a minister.” 132 S.Ct. commissioned justices joined in one other or both 699-700. Court, opinion for the and the Chief Justice’s Alito, concurring opinion of Justice both undertaking Supreme 18. Nor was the Court’s justified explicitly judgment which on the plaintiff itself to determine for whether the determination, than Court's rather minister, accept rather than designation, plaintiff church's characterization, carelessly church’s done performing was in fact in the role of a minis recognition implications of its for the without ter. entanglement argument. Justice excessive Thomas, judgment, who concurred similarly reject 19.We Bronx Household’s espousing very argu- separately, wrote causes entan claim excessive here, reject ments Bronx Household makes glement requiring take an the Board to aspect the Court’s that refused decision position Unlike official on doctrine. regard the church's characterization Meats, Commack Kosher Inc. argued in Weiss, conclusive. Justice Thomas Self-Service decision, (2d Cir.2002), we 294 F.3d 415 where theological order to intrude defining according plaintiff's laws “kosher” to the he would have deemed the ministe- held "excessively conclusively by the fact Judaism en- rial status established dictates Orthodox public have considered Bronx Household’s ed fora that are otherwise open arguments and merit other find no all—violates Free Exercise Clause be- plainly them.20 cause it against discriminates reli- gious and cannot justified by belief CONCLUSION compelling government interest. I would affirm permanent the district court’s in- reasons, foregoing judgment For the junction. REVERSED, district of the court is and injunction barring Reg. enforcement of of Department Education of Regulation I.Q. is VACATED. § I.Q. the Chancellor D-180 (“Reg.I.Q.”) prohibits use of school facilities outside WALKER, JR., M. JOHN Circuit of school groups hours outside “for dissenting: Judge, purpose holding religious ser- majority Ex states that the “Free vices, using or otherwise school as ... ercise Clause has never under been worship.” house of The last time case this require government finance a stood court, was before this we were asked subject’s Maj. religion.” Op. exercise of at Reg. I.Q. decide whether Free violates the Allowing an entity public to use school Speech Clause of the First Amendment. to all space open equal others on terms is See Bronx Household Faith v. Bd. entity. hardly financing of that How N.Y., (2d Cir.2011) Educ. 650 F.3d 30 ever, shutting the door religious worship (“Bronx IV”). view, my Household In every such a setting services when other majority does. Reg. concluded that permitted activity strikes at the Clause’s I.Q. viewpoint is not be- discriminatory “Indeed, it core. was historical instances cause it excluded “the conduct an event religious persecution intolerance and activity or that includes of a expression gave that concern to those who drafted the view,” point expression not “the Exercise Free Clause.” Church the Lu point majority of view.” Id. 37. The Hialeah, Aye, Babalu Inc. City kumi v. held that is a ex- content-based 520, 532, 2217, 113 124 U.S. S.Ct. constitutionally clusion that is permissible (1993) (internal quotation L.Ed.2d objectively because “it was reasonable omitted). end,

marks To this a mini “[a]t worry City’s the Board use of the mum, protections of the Free Exercise schools for ... if pertain the law at issue discrimi expose[ ] to a [would] substantial nates some or all beliefs risk of found to have being violated prohibits regulates conduct because Establishment Clause.” Id. at 43. it is undertaken reasons.” Id. view, my poli Board of Education’s I and now incorporate dissented cy “religious worship that disallows ser into dissenting opinion this one refer- public vices” after hours in disputed schools—limit- ence. It never been has criteria,” 425, tangle they gious and because id. at the Board had (1) matter, effectively engaged comparable practices. take sides in a discriminating in favor of the Orthodox He- (2) dietary requirements; dissent, view of brew re- Judge In his Walker advances quire position State to take an official many arguments same he advanced doctrine; (3) imper- create Our Bronx Household 650 F.3d at 52-65. governmental fusion of responses previous missible are contained in Bronx authority delegating opin- to indi- functions civic opinions Household set forth in this apparently according viduals chosen ion. ” (sec exercises.’ Id. at 63 policies for the some devotional of Education’s Department cre spaces (emphasis use of school re public original) after-hours ond alteration moved) at 36. I public forum. ated a limited Rosenberger, 515 (quoting Household IV 2510). Bronx concluded 842, 115 I thus concluded S.Ct. Central News Club under Good the Board of Education could raise Milford 2093, 98, School, 533 U.S. concerns specter of Establishment Clause (2001), Chapel Lamb’s v. Cen L.Ed.2d (under justification as either a reasonable District, Free School ter Union Moriches compelling jus majority’s holding) or a L.Ed.2d 508 113 U.S. (under my tification that strict scruti view (1993), Rosenberger v. Rector and and 352 ny applied) Reg. I.Q.’s for disallowance University Virginia, Visitors at religious worship services. Id. 64. 2510, 819, 132 L.Ed.2d 700 U.S. presented I now turn to the in the issues I.Q. viewpoint (1995), is discriminato- Reg. appeal. current expression solely it ry disallows because religious is from expression a because Household 650 F.3d

viewpoint. Bronx Reg. I.Q.’s Religious I. Ban on Wor- J., (Walker, dissenting). at More- 54-59 ship by a Must Be Justified Services “majority’s over, that at- I believed Compelling Governmental Interest between the conduct tempt to differentiate general A law that is not “neutral and of ‘services,’ event, and here labeled of an during applicability” religion and that affects viewpoints expressed protected of ‘ser- justified by govern- futile because “must compelling event is a activity.” expressive protected vices’ is tai- narrowly mental interest and must be required I would have Id. at 56. thus Lukumi, to lored advance that interest.” compelling to show a of Education 531-32, (citing 508 U.S. at 113 S.Ct. 2217 viewpoint discrimina- justification its Smith, 872, Emp’t Div. v. 494 U.S. tion. (1990)). Reg. S.Ct. 108 L.Ed.2d 876 I.Q. generally appli- is neither neutral nor ap-

Particularly to the current relevant permitting reli- cable. peal, I also concluded school facilities for gious groups use Reg. I.Q. or generally is neutral pursuant to a neutral religious purposes applicable explicitly it conditions because creating limited forum policy public use of school on whether an or- facilities violate the Establishment

would not “religious wor- ganization engaging is policy would “nei- Clause because such services,” ship a term that definition religious ther promote[] endorse[] nor only meaning has no secular burdens policy Such a would message.” at 61. religious facial conduct. Such discrimina- impermissible religion; aid to provide Reg. I.Q. tion is not alone establishes rather, provide a neutral simply Lukumi, 533, 113 neutral. See 508 U.S. at non-religious ex- forum for Moreover, not generally S.Ct. 2217. it is I pression alike. Id. noted applicable oper- in both effect and because Rosenberger, Court stated “ By it targets ation conduct. Establish- does not violate the ‘[i]t disallowing “religious worship services” as grant access ment Clause [school] term, majority has defined religion-neutral facilities on a basis its all, many, although not burdens spectrum groups, to a wide of student It is gions organizations. and no secular meeting use rooms including groups that activities, impermissible attempt target thus “an accompanied by for sectarian Lukumi, found, As the practices.” ... district court unop- “the 535, 113 posed testimony is that P.S. 15 is ‘only location which [Bronx can Household] Concluding Reg. I.Q. neither gather afford to congregation as full applicable nor generally neutral its having without curtail other of their easy treatment of call: the ” religious practices.’ Bronx Household of Department of Education states that its N.Y., Faith v. Bd. Educ. in creating policy was to purpose (S.D.N.Y.2012). It is appearance “avoid both the fact and undisputed further that “no other location religion pre- government endorsement currently besides P.S. 15 facilitates the plaintiffs when other congrega- sented Church’s mandate to worship public engage use tions schools wor- an entire congregation.” Id. The burden ship Appellants’ services.” Br. 39. The on Bronx crystal Household is made clear Department effectively thus concedes that “given the uniquely expensive and crowded object upon infringe “is to or restrict real estate market which the Church practices because of their motiva- my view, resides.” Id. forcing at 428. Lukumi, 533, tion.” 508 U.S. 113 S.Ct. Bronx Household to relocate or suspend Smith, 878-79, (citing 2217 U.S. at 494 110 sufficiently its services burdens the free 1595). S.Ct. exercise of religion require strict scruti- Moreover, contrary majority’s ny. contention, sufficiently Bronx is Household by Reg. I.Q. require majority burdened The that believes this case scrutiny question strict The apply. is should be decided under Locke v. Davey, [government imposes scrutiny “whether which strict action] was not applied to burden on appel the free exercise of scholarship program state-funded for Verner, religion.” lant’s Sherbert v. post-secondary 374 education that allows stu- 398, 403, 1790, 10 83 S.Ct. L.Ed.2d dents to attend qualified religiously affili- (1963). not 965 We need ask ated whether institutions but disallows students Bronx “substantially pursue Household is bur a degree theology while receiv- ing 712, 716, dened” because the government scholarship. action 540 U.S. 124 here, (2004). in specifically religious 1307, targeting con- S.Ct. 1 158 L.Ed.2d Locke is duct, here, however, is not not generally ap applicable neutral and not because it See, Bd., plicable. e.g., v. government Thomas Review dealt with a subsidy. 707, 718, 1425, 450 U.S. 101 S.Ct. The explicitly 67 Court in Locke acknowl- Sherbert, (1981); L.Ed.2d 624 edged scholarship 374 U.S. at that the at issue “is not 403, 1790; Tenafly Eruv a forum speech,” Assoc. v. and thus “cases deal- (3d Borough 144, Tenafly, ing F.3d with speech simply forums are inappli- Cir.2002) (“[T]here 3, is no substantial bur cable.” Id. at 720 n. S.Ct. 1307. As requirement discussed, government den when Reg. I.Q. plainly dis creates a limit- conduct.”); against religious criminates ed public forum. Bronx See Household Borough I.Q. Brown v. Mahaffey, Reg. 35 F.3d 650 F.3d at is not a (3d Cir.1994) 846, (holding government 849-50 subsidy: Department that re plaintiffs quiring to show substantial bur Education the same rate charges to all organizations using den “non-neutral actions its facilities. Whereas petty directly make funding would harassment of Locke dealt with the train- ing immune from of religious clergy, dealing institutions exercise here we are Amendment”). protection with discriminating First exer- charge community- runs a risk of non-frivolous a forum set aside cise in Clause violation of Establishment expression. based the conduct of reli- hosting subsidizing I.Q. nei- Reg. is I believe that Because Maj. Op. services.” gious generally applicable nor neutral ther belief, however, The Board’s reason- conduct, I places a burden Supreme precedent able because scrutiny. strict apply has foreclosed the Es- possibility tablishment would result Clause violation Scrutiny Reg. Fails Strict II. if worship services were allowed before this time this case was last in school facilities in these circumstances. view, because my that in panel, explained I repeatedly Court has “re- discriminatory, viewpoint I.Q. was jected position that the Establishment govern- compelling justified must be justifies, requires, much less Clause even IV, 650 Bronx Household mental interest. speech rights to extend refusal free (Walker, J., I fur- dissenting). at 59 F.3d speakers participate who inter- government’s explained ther broad-reaching government programs neu- avoiding an est design.” 515 U.S. at Rosenberger, tral sufficiently compelling violation was 839, (citing Chapel, 115 S.Ct. 2510 Lamb’s neutrality of the forum “the because 2141; 393-94, 508 U.S. at 113 S.Ct. Bd. of like non- religious speech, preserved when 226, 248, 252, Mergens, Educ. v. 496 U.S. Accordingly, is allowed. religious speech, (1990); 110 L.Ed.2d Board has failed I hold ... would Vincent, 274-75, Widmar 454 U.S. granting Bronx to demonstrate 269, (1981)); 102 S.Ct. L.Ed.2d 440 see Sunday 15 for access to P.S. Household Club, 112-19, at also Good News 533 U.S. principal would have worship services City’s 121 S.Ct. 2093. The Establishment religion or advancing effect of primary justification greater pur- has no Clause endorse- conveying message of otherwise chase under Free Exercise Clause on this My position at 64. ment.” Id. Speech than it has under the Free Clause. full. It is as point repeated not be need inter- as it was then: the Board’s true now by an conclusion em- This is bolstered enforcing I.Q. to avoid an Reg. est survey court pirical submitted to this not com- Clause violation is City curiae York amicus The New Coun- it the Es- pelling does not violate because Latino, Black, Caucus, in cil and Asian Bronx House- tablishment allow fifty support appellees. largest Of public facilities worship school hold States, districts in New school the United broadly public to the made available City entirely York alone excludes reli- I hold that would thus neutral terms. gious worship from its facilities. Brief of Exercise I.Q. the Free Reg. violates Amicus Curiae the New York Coun- Clause.1 Latino, Black, cil and Asian Caucus at 9. I.Q. Reg. Twenty-five is school districts ex- majority contends that these permissible pressly religious Board made a allow their because the “reasonable, it An additional eigh- facilities. Id. good judgment faith I.Q. religion, government entanglement Reg. in vi- 1. Because I believe that violates Clause, not reach the Free Exercise I of the Establishment Clause." Bronx olation holding Reg. court's (internal district additional Household, at 445 I.Q. continuing surveil- "calls for official and omitted). quotation marks and alterations degree leading impermissible to an lance implicitly Indeed, teen allow worship Id. at 37. Reg I.Q. “prohibits use on the same terms as other com- of school facilities to conduct worship ser- munity vices, organizations. Finally, Id. ad- but does not exclude permit ditional six groups districts wor- from using schools for prayer, sing- ship ing hymns, services under certain religious instruction, conditions. expres- course, devotion, sion of quo Of the status does not or the discussion ipso facto render issues from a religious point action con- of view.” stitutional, but Id. at 38. A regulation bears on whether the that' bans worship City’s position ais reasonable It services but not any one. of its man- striking that none of these ifestations thus other school not sufficiently tailored appear accomplish districts slightest have the con- the interest that the School advanced, cern about violating the Establishment has namely, avoiding the Clause, nor have risk of being perceived of their community as establishing reli- policies gion. use been found to violate the

Clause. ‡ ‡ ‡ $

Even if there presents were a real This case questions concern that substantial allowing religious public involving services in schools contours of both religion pursuant to a clauses policy neutral and the Free Speech creates Clause of the public Amendment, limited fora First would violate the Estab- resolution of which Clause, lishment are ripe and even if review. meantime, were intended to because problem, address that the “First Amendment Reg. I.Q. would still fail mandates governmental strict scrutiny neutrality be because it is impermissibly religion tween and religion, underinclusive and between Lukumi, serve that interest. and nonreligion,” Epperson See v. Ar kansas, 97, 104, Reg. I.Q. S.Ct. 2217. 393 U.S. permits (1968), extensive L.Ed.2d 228 I pub- respectfully dissent. schools, lic Quaker such as a meeting ser- service,

vice or a Buddhist meditation so

long as it is not following prescribed order or led an ordained official. See (cid:127)

Bronx Household 650 F.3d at 56 (Walker, J., dissenting). America, UNITED STATES of Appellee,

Moreover, as the majority in Bronx Household IV made clear: ALLEN, Leonard J. “religious Defendant- worship services” clause Appellant. purport

does not prohibit use of the facility by person group persons No. 13-296-CR. for “worship.” prohibited by What is United Appeals, States Court of solely this clause is the conduct of a Second Circuit. particular type of event: a collective ac- tivity characteristically done according Submitted: Dec. to an prescribed by order and under the April Decided: auspices organized of an religion, typi- cally but not necessarily conducted

an ordained official religion. notes if that is Calabresi activity expression event includes Bronx had expressly applied Household view, a point excluding and the ex conduct “Christian worship services.” view,” pression point we ob Moreover, in view the fact both imposed by served unlike the rule the Free Exercise and Establishment Clauses Club, school in News Good Board’s impose restrictions on the of gov- rale barring conduct of wor ernment relating exclusively placed ship services no on restriction activities, many “government instances use of groups school facilities officials discharge cannot their constitu- to teach religion, sing hymns, pray recite tional obligations without close examina- ers, express advocate their of ... particular tion conduct to determine point Id. at pro view. 37-38. rule if is properly deemed to be hibiting religious worship services there if so whether allowing it would constitute a fore did not exclude expression of a reli prohibited establishment religion.” gious It viewpoint. was a content-based particular category exclusion of a of activi On remand to the District Court after ty, which exclusion constitutionally injunction, we vacated the Bronx House permissible light of the Board’s reason again hold for a preliminary injunc moved able faith good belief that permitting tion I.Q., enforcement of Reg. this in its schools time grounds. on different Bronx House might give appearance rise of en hold our prior ruling, asserted that which dorsement in violation of the Establish was based its Speech on Free Clause, thus exposing the Board to a claim, should close the matter as nei substantial risk of liability.5 Id. at 43. ther we nor the District passed Court had rejected We also Bronx Household’s Reg. I.Q. claims that violated the claim that the rule violated Establish- Free Exercise Clause. The District Court ment Clause. Id. at 45-48. found no

Case Details

Case Name: Bronx Household of Faith v. Board of Education

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 3, 2014

Citation: 750 F.3d 184

Docket Number: Docket 12-2730-cv

Court Abbreviation: 2d Cir.