The newest edition of the First Freedom Project Religious Freedom in Focus e-mail newsletter (March/April 2008 Volume 32) highlights the Department of Justice's amicus brief work in Bronx Household of Faith v. Board of Education of the City of New York.
The Bronx Household of Faith, an urban church in New York, has struggled for over ten years to obtain equal access to the after-hours use of school facilities for its worship services. The school board has flung open the doors of its facilities for use by a wide variety of community groups but has shut the door on religious worship.
In the brief filed on April 1, the United States reiterates its prior argument that “excluding religious activity because it is religious is presumptively unlawful.” The brief repeats its objection to the school board’s position that worship is an entirely different mode of speech that falls outside of traditional First Amendment analysis. The United States brief points out that the Supreme Court rejected such an argument more than 25 years ago in Widmar v. Vincent (1981), where the Court held that courts could not, under the First Amendment, distinguish categorically between religious speech generally and religious worship. The Widmar Court found that there was no principled basis to determine when “singing hymns, reading scripture, and teaching biblical principles, . . . cease to be ‘singing, teaching and reading’ – all apparently forms of speech despite their religious subject matter – and become unprotected worship.”
The CLS Center also submitted an amicus brief in the most recent round of litigation in this case, arguing that the school board's use of religion as a factor to exclude the Bronx Household of Faith from its forum also violates the Free Exercise Clause.