Tuesday, April 22, 2008

Access to Public Meeting Space for Worship

Throughout the 1980s and 1990s, courts adjudicated numerous disputes between religious speakers and governments. The disputes arose when governments denied religious speakers equal access to public spaces, typically contending that the First Amendment's Establishment Clause required such discriminatory exclusions. Religious speakers argued that other parts of the First Amendment -- especially the Free Speech Clause -- required inclusion. These disputes illustrated the broader conflict between two visions of church-state relations: strict separationism vs. neutrality.

A number of these cases reached the U.S. Supreme Court: Widmar v. Vincent (1981) (student religious groups at public university); Westside Bd. of Educ. v. Mergens (1990) (student religious groups at public secondary schools); Lamb's Chapel v. Center Moriches Union Free Sch. Dist. (1993) (after hours use of public school to show religious film series on child rearing); Rosenberger v. Rector of the Univ. of Virginia (1995) (religious student publication access to public university financial support of speech activities); Capitol Square Review & Advisory Bd. v. Pinette (1995) (nongovernmental display of religious symbol in park near state capitol); Good News Club v. Milford Cent. Sch. (2001) (community religious group meeting at public elementary school). In each instance, the Court ruled in favor of the religious speaker, rejecting strict separationists' Establishment Clause arguments.

Despite these decisions, some governments are still reluctant to allow religious speakers to use public property. One such government is the New York City Board of Education, which has been defending its exclusion of the Bronx Household of Faith from meeting space for years. The board attempts to distinguish the Court's precedents by arguing that it is merely excluding a "subject matter" rather than a "viewpoint" on a subject that other speakers are permitted to address when using school meeting space after hours. The board's policy denies access to those wishing to engage in religious "worship." The board contends that "worship" is a "category" of speech that simply isn't permitted in the forum, in an effort to deflect a charge of discrimination on the basis of viewpoint.

The Bronx Household case is once again in the U.S. Court of Appeals for the Second Circuit, which has a notoriously poor record in equal access cases. (The Supreme Court reversed the Second Circuit in both Lamb's Chapel and Good News Club.) Briefing on the appeal was completed yesterday, when the board filed its reply brief.

The CLS Center filed a friend of the court brief in support of the church, arguing that the board's exclusion violates the Free Exercise Clause.