'Denied'

WASHINGTON-After more than 16 years of litigation, the U.S. Supreme Court ended an appeal of a ban on churches renting out public schools with a simple word: "denied."

The high court, in rejecting the church's appeal in Bronx Household of Faith v. Board of Education of the City of New York, affirmed New York City's ban on renting out public school facilities for religious worship services. The schools can rent out their facilities to any other organization as long as it is not conducting "religious worship services." The board charges a nominal fee to groups using its facilities, not full rent.

The 2nd U.S. Circuit Court of Appeals upheld the ban 2-1 in a June decision, writing that the New York rule "bars a type of activity. It does not discriminate against any point of view." The opinion continued, "The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view," which the New York City Board of Education allows.

The high court, like usual, did not elaborate on why it denied the case. (Though it noted that Justice Sonia Sotomayor sat out the decision.) Jordan Lorence, an attorney with the Alliance Defense Fund who was working on the church's case, was "very surprised" at the court's denial.

"The 2nd Circuit's decision deviated quite significantly from what the Supreme Court has said," he noted, citing at least five decisions dating back to 1981. According to Lorence, the 2nd Circuit's decision directly conflicts, for example, with the Supreme Court's 2001 ruling in Good News Club v. Milford Central School, which said that a public school could not ban the Good News Club, a children's Bible study, just because it taught religion. The 2nd Circuit said its decision didn't conflict with that case because the Good News Club wasn't a worship service; it was simply religious expression.

A church service at a public school, more than run-of-the-mill religious expression, could constitute "establishment," the circuit court wrote. "The place has, at least for a time, become the church."

Lorence previously said that the Establishment Clause doesn't prohibit religious speech if schools accommodate other private speech. "They have their dance recitals, Boy Scout meetings, union meetings, worship services," he said. "Nothing is transformed. The meeting doesn't work some architectural alchemy on the building."

The circuit court's opinion contained a pensive section on what constitutes "worship," since New York has specifically banned worship services. According to the court, "a celebrity's fan clubs" or "a miser who is said to 'worship' money" doesn't constitute the general understanding of "worship." Worship, as a "core event" of religion, the court said, is conducted according to "rules," run by an "officiant," and contains "rites."

"Furthermore, the fact that school facilities are principally available for public use on Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as the principal day for worship services," the circuit court wrote.

Lorence said the Alliance Defense Fund reviewed school districts' rules across the country and didn't find any similar to New York's, but he is concerned that the court's decision could embolden some districts to create such rules.

"If that's the case, the Alliance Defense Fund would be there to litigate those cases," he said. "I think other appeals courts would not agree with the 2nd Circuit's decision."

Listen to a report on the Supreme Court's refusal to hear the appeal on WORLD's radio news magazine The World and Everything in It.