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Appeals Court Backs N.Y.C. Ban on Worship Services in Schools, Again

A federal appeals court, ruling for the sixth time in a long-running case over weekend church services in public schools, has upheld the New York City school system's rules against opening its facilities to such worship services.

A panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1 against the Bronx Household of Faith, a congregation that has been battling since 1994 over its efforts to hold services in a public school.

In the latest ruling, issued April 3, the 2nd Circuit majority said the First Amendment's "free exercise clause does not entitle Bronx Household to a grant from the [New York City district] of a subsidized place to hold religious worship services."

The city school system "has substantial reasons for concern that hosting and subsidizing the conduct of religious worship services would create a substantial risk of liability under the" First Amendment's prohibition against government establishment of religion, the appellate court said in Bronx Household of Faith v. New York City Board of Education.

As the court has noted before, the majority said times when churches did use city school facilities have shown that there is a possibility of the appearance that the school system endorses religion.

The appellate court overturned a federal district court decision that had enjoined the city school system from enforcing its rules prohibiting worship services among the public uses for its buildings during non-instructional hours. 

It has become somewhat foggy why the case has led to six opinions by the 2nd Circuit, though the court's last one, in 2011, was based on a free-speech claim by the church, while the latest claims were under the free exercise and establishment clauses.

U.S. Circuit Judge John M. Walker Jr. dissented, as he has in the past.

"In my view, the Board of Education's policy that disallows 'religious worship services' after hours in public schools—limited public fora that are otherwise open to all—violates the free exercise clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest," Walker said.

He invited the U.S. Supreme Court to take up the case, though the high court has twice before declined to get involved, in 1998 and 2011.

"This case presents substantial questions involving the contours of both religion clauses and the free speech clause of the First Amendment, the resolution of which are ripe for Supreme Court review," Walker said.

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