The Battle Continues for Equal Access for Religious Speech

The U.S. Supreme Court today issued an order declining, without explanation, to review the case of Bronx Household of Faith v. The Board of Education of the City of New York. This denial puts an unfortunate end to a more-than-decade long battle between a New York City church and the city’s discrimination against churches in the after hours use of public school facilities.

The Supreme Court has repeatedly ruled that in settings where private parties are entitled to speak, such speech is protected under the First Amendment to the U.S. Constitution and cannot be censored or excluded just because it is religious. This is commonly known as the “equal access” doctrine, i.e., religious speech has equal access to a forum for speech that other comparable speech has. This is a doctrine that the ACLJ has been fighting for and protecting for decades.

For example, if college students are allowed to form groups and meet on campus, religious student groups have the same right to meet, including to engage in worship. Widmar v. Vincent (1981). If public schools let outside groups use empty classrooms for their expressive activities, the schools cannot exclude a church just because it wants to show a film featuring a religious point of view. Lamb’s Chapel v. Center Moriches Union Free School District (1993). If elementary schools allow outside organizations to conduct activities for children after school, then a religious organization has the same right. Good News Club v. Milford Central School (2001). And under a law Congress enacted, if student groups in high school are permitted to meet, a group cannot be refused because it is religious. Board of Education v. Mergens (1990).

Our Chief Counsel Jay Sekulow argued and won the Lamb’s Chapel and Mergens cases, and our attorneys (myself included) have litigated similar cases in the lower courts. We also try to help when other legal organizations pursue such cases, as in Good News Club and Bronx Household (the ACLJ had filed a friend of the court brief, available here). 

The New York City Board of Education has been resisting equal access for decades. And the U.S. Court of Appeals for the Second Circuit, the federal appeals court which hears cases from New York, has had a bad habit of approving NYC’s recalcitrance. Consequently, the Supreme Court’s equal access decisions regularly overrule, or reverse, decisions of the Second Circuit. The Lamb’s Chapel and Good News Club cases came from New York and the Second Circuit, for example, and Mergens overruled a prior Second Circuit decision approving the exclusion of student prayer clubs.

In Bronx Household of Faith. a church serving poor people in the city sought to use vacant after-hours space in the NYC public school system – something that thousands of other groups do every year. But the NYC education system fought the church every step of the way. Even when their arguments failed in other Supreme Court cases, NYC just tweaked its policy and claimed their exclusion of the church was still constitutional. And the Second Circuit repeatedly let them get away with it!

Now it so happens that the Bronx church has finally obtained a church building of its own. That may be the reason the Supreme Court decided not to review this case. But the church insisted that it still needed to use school facilities for large events, and even if the case were moot, that would be a reason for the Supreme Court to erase the bad precedents in the Second Circuit. By simply denying review, the Supreme Court leaves in place (without necessarily endorsing) the terrible Second Circuit precedents. 

If freedom is just one generation away from being lost, the essential equal access doctrine protecting churches and other religious speech and association may be just a string of cases away from being lost as well.

Let us hope that the Second Circuit’s defiance of equal rights for churches remains an anomaly. Should other cities start copying New York’s discrimination, groups like the ACLJ will be ready to go to court again, continuing the battle defending the constitutional rights of churches and people of faith.