     07-5291-cv
     Bronx Household v. Board of Education



 1                                     UNITED STATES COURT OF APPEALS
 2                                         FOR THE SECOND CIRCUIT


 3                                                       August Term, 2010

 4   (Argued: October 6, 2009                                                  Decided: June 2, 2011)


 5                                                    Docket No. 07-5291-cv


 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

 7   THE BRONX HOUSEHOLD OF FAITH,
 8   ROBERT HALL, and JACK ROBERTS,

 9                       Plaintiff-Appellees,

10   v.

11   BOARD OF EDUCATION OF THE CITY OF NEW
12   YORK and COMMUNITY SCHOOL DISTRICT NO. 10,

13                       Defendant-Appellants.
14
15   -------------------------------X
16
17
18

19   Before: WALKER, LEVAL, and CALABRESI, Circuit Judges.

20           Defendants appeal from an order of the United States District Court for the Southern
21   District of New York (Preska, C.J.) granting summary judgment to Plaintiffs and entering a
22   permanent injunction barring the Board of Education of the City of New York from enforcing a
23   rule that prohibits outside groups from using school facilities after hours for “religious worship
24   services.” The Court of Appeals (Leval, J.) concludes that (1) because the rule does not exclude
25   expressions of religious points of view or of religious devotion, but excludes for valid non-


                                                                        1
 1   discriminatory reasons only a type of activity – the conduct of worship services, the rule does not
 2   constitute viewpoint discrimination; and (2) because Defendants reasonably seek by this rule to
 3   avoid violating the Establishment Clause, the exclusion of religious worship services is a
 4   reasonable content-based restriction, which does not violate the Free Speech Clause.
 5   Accordingly, the judgment of the district court is reversed and the injunction barring
 6   enforcement of the rule against Plaintiffs is vacated.

 7          Judge Calabresi concurs in the opinion and has filed an additional concurring opinion.

 8          Judge Walker dissents by separate opinion.

 9                                                JANE L. GORDAN, Senior Counsel (Edward F.X.
10                                                Hart, Lisa Grumet, Janice Casey Silverberg, on the
11                                                brief), for Michael A. Cardozo, Corporation
12                                                Counsel of the City of New York, New York, New
13                                                York, for Appellants.

14                                                JORDAN W. LORENCE, Alliance Defense Fund,
15                                                Washington, D.C. (Joseph P. Infranco, Jeffrey A.
16                                                Shafer, David A. Cortman, Benjamin W. Bull, on
17                                                the brief), for Appellees.

18                                                Michael J. Garcia, United States Attorney for the
19                                                Southern District of New York, New York, New
20                                                York (David J. Kennedy, Assistant United States
21                                                Attorney, Southern District of New York, Grace
22                                                Chung Becker, Acting Assistant Attorney General,
23                                                Dennis J. Dimsey, Eric W. Treene, Karl N. Gellert,
24                                                Attorneys, Appellate Section, Civil Rights Division,
25                                                U.S. Department of Justice, on the brief), for
26                                                Amicus Curiae United States of America.

27                                                Mitchell A. Karlan, Gibson, Dunn & Crutcher LLP,
28                                                New York, New York (Aric H. Wu, Farrah L.
29                                                Pepper, Gibson, Dunn & Crutcher LLP, Carol
30                                                Nelkin, Jeffrey P. Sinensky, Kara H. Stein, The
31                                                American Jewish Committee, on the brief), for
32                                                Amicus Curiae The American Jewish Committee.

33                                                Isaac Fong, Center for Law and Religious Freedom,
34                                                Springfield, Virginia (Kimberlee Wood Colby,
35                                                Gregory S. Baylor, on the brief), for Amicus Curiae
36                                                The Christian Legal Society.

                                                     2
1                                                 Eloise Pasachoff, Committee on Education and the
2                                                 Law, Association of the Bar of the City of New
3                                                 York, New York, New York (Jonathan R. Bell,
4                                                 Rosemary Halligan, Laura L. Himelstein, on the
5                                                 brief), for Amicus Curiae Association of the Bar of
6                                                 the City of New York.


7    LEVAL, Circuit Judge:

8           Defendants, the Board of Education of the New York City Public Schools and

9    Community School District No. 10 (collectively, “the Department of Education” or “the

10   Board”),1 appeal from an order of the United States District Court for the Southern District of

11   New York (Preska, C.J.), which granted summary judgment to Plaintiffs the Bronx Household of

12   Faith (“Bronx Household”), a Christian church, and its pastors Robert Hall and Jack Roberts,

13   and permanently enjoined the Board from enforcing against Bronx Household a Standard

14   Operating Procedure (“SOP”) that prohibits the use of school facilities by outside groups outside

15   of school hours for “religious worship services.” We conclude that the challenged rule does not

16   constitute viewpoint discrimination because it does not seek to exclude expressions of religious

17   points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons

18   only a type of activity – the conduct of worship services. We also conclude that because

19   Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the

20   exclusion of religious worship services is a reasonable content-based restriction, which does not

21   violate the Free Speech Clause. Accordingly, we reverse the judgment of the district court and

22   vacate the injunction.


            1
             The Board of Education of the City of New York has been reorganized and renamed the
     New York City Department of Education. See, e.g., D.D. ex rel V.D. v. New York City Bd. of
     Educ., 465 F.3d 503, 506 n.1 (2d Cir. 2006).

                                                     3
 1                                            BACKGROUND

 2          The relevant facts are familiar, and are not in dispute. See Bronx Household of Faith v.

 3   Bd. of Educ. of the City of New York (Bronx Household III), 492 F.3d 89 (2d Cir. 2007). Under

 4   New York State law, a local public school district may permit its facilities to be used outside of

 5   school hours for purposes such as “social, civic and recreational meetings and entertainments,

 6   and other uses pertaining to the welfare of the community,” as long as the uses are “nonexclusive

 7   and . . . open to the general public.” N.Y. Educ. Code § 414(1)(c). Pursuant to this provision,

 8   New York City’s Department of Education developed a written policy governing use of school

 9   facilities during after-school hours as part of its Standard Operating Procedures Manual. The

10   policy, or SOP, permits outside groups to use school premises for the purposes described in the

11   state law, when the premises are not being used for school programs and activities, but subject to

12   limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property

13   for “religious services or religious instruction.”2 Bronx Household of Faith v. Cmty. Sch. Dist.

14   No. 10 (Bronx Household I), 127 F.3d 207, 210 (2d Cir. 1997).

15          In 1994, Bronx Household applied to use space in the Anne Cross Mersereau Middle

16   School (“M.S. 206B”) in the Bronx, New York, for its Sunday morning “church service[s].”

17   Bronx Household of Faith v. Bd. of Educ. of the City of New York, 226 F. Supp. 2d 401, 410


            2
             SOP § 5.9 provided:

                    No outside organization or group may be allowed to conduct
                    religious services or religious instruction on school premises after
                    school.     However, the use of school premises by outside
                    organizations or groups after school for the purposes of discussing
                    religious material or material which contains a religious viewpoint or
                    for distributing such material is permissible.

     Bronx Household I, 127 F.3d at 210.

                                                       4
 1   (S.D.N.Y. 2002) (quoting First Affidavit of Robert Hall). According to Bronx Household’s

 2   application, its services would include “singing of Christian hymns and songs, prayer, fellowship

 3   with other church members and Biblical preaching and teaching, communion, [and] sharing of

 4   testimonies,” followed by a “fellowship meal,” during which attendees “talk to one another,

 5   [and] share one another’s joys and sorrows so as to be a mutual help and comfort to each other.”

 6   Id. The Board denied Bronx Household’s application under SOP § 5.9. Bronx Household I, 127

 7   F.3d at 211.

 8          Plaintiffs brought suit, contending that the Board’s denial of Bronx Household’s

 9   application constituted viewpoint discrimination in violation of the Free Speech Clause of the

10   First Amendment. The district court granted the Board’s motion for summary judgment, and

11   dismissed the suit. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501, 1996

12   WL 700915 (S.D.N.Y. Dec. 5, 1996) (Preska, J.). We affirmed, concluding that the Department

13   of Education had created a limited public forum by opening school facilities only to certain

14   activities, and that the exclusion of religious services and religious instruction was viewpoint-

15   neutral and reasonable in light of the forum’s purposes. Bronx Household I, 127 F.3d at 211-15,

16   217.

17          In 2001, however, the Supreme Court ruled in Good News Club v. Milford Central

18   School, 533 U.S. 98 (2001), that it was unconstitutional for a public school district in Milford,

19   New York, to exclude from its facilities “a private Christian organization for children,” which

20   had requested permission to use space in a school building after school hours to sing songs, read

21   Bible lessons, memorize scripture, and pray. Id. at 103. The Milford district’s policy, in

22   accordance with New York state law, permitted school facilities to be used for “social, civic and

23   recreational meetings and entertainment events, and other uses pertaining to the welfare of the

                                                      5
 1   community.” Id. at 102 (quoting N.Y. Educ. Code § 414(1)(c)). However, it prohibited use “by

 2   any individual or organization for religious purposes,” which school district officials interpreted

 3   as prohibiting “religious worship” or “religious instruction.” Id. at 103-04. The Supreme Court

 4   concluded that the Good News Club was seeking to “address a subject otherwise permitted [in

 5   the school], the teaching of morals and character, from a religious standpoint,” and, therefore,

 6   the school district’s denial of the club’s application constituted impermissible viewpoint

 7   discrimination in the context of a limited public forum. Id. at 109.

 8          After the Supreme Court’s decision in Good News Club, Bronx Household applied again,

 9   and its application was again denied. Bronx Household of Faith v. Bd. of Educ. of the City of

10   New York (Bronx Household II), 331 F.3d 342, 346-48 (2d Cir. 2003). Plaintiffs brought a new

11   action, and this time the district court, citing Good News Club, preliminarily enjoined the Board

12   from denying the permit. Bronx Household, 226 F. Supp. 2d at 427. We affirmed the

13   preliminary injunction, finding that the district court did not abuse its discretion, and

14   acknowledging the “factual parallels between the activities described in Good News Club and the

15   activities at issue in the present litigation.” Bronx Household II, 331 F.3d at 354. After the

16   issuance of the preliminary injunction, Bronx Household applied for, and was granted,

17   permission to use P.S. 15 in the Bronx for its Sunday “Christian worship service[s].” Bronx

18   Household III, 492 F.3d at 94, 101 (Calabresi, J., concurring).

19          Bronx Household thereafter moved for summary judgment to convert the preliminary

20   injunction into a permanent injunction, and the Board cross-moved for summary judgment.

21   During the pendency of the motions for summary judgment, the Board wrote to the district court




                                                       6
 1   asking the court to adjudicate the issue under a revised SOP, numbered SOP § 5.11,3 which was

 2   intended to replace the old standard. The Board advised that the new SOP § 5.11 had been

 3   “approved at the highest levels of the Department of Education” and that if Bronx Household

 4   were to reapply, its application would be rejected under the new SOP § 5.11. Id. at 95 n.2. The

 5   text of the new SOP § 5.11 prohibited use of school property for “religious worship services, or

 6   otherwise using a school as a house of worship.”4 The district court, after initially expressing

 7   doubt about its jurisdiction to rule on the constitutionality of a rule whose status was unclear and

 8   which had not been applied against Plaintiffs, nevertheless concluded that the question was

 9   justiciable and granted summary judgment in favor of Bronx Household, permanently enjoining

10   the Board from enforcing the proposed SOP § 5.11. Bronx Household of Faith v. Bd. of Educ. of

11   City of New York, 400 F. Supp. 2d 581, 588, 601 (S.D.N.Y. 2005). The district court concluded

12   that its decision was compelled by the Supreme Court’s decision in Good News Club.

13          On appeal, a majority consisting of Judge Calabresi and me, over dissent by Judge

14   Walker, vacated the permanent injunction, although we were divided as to the rationale for doing

15   so. Bronx Household III, 492 F.3d at 91 (per curiam). Judge Calabresi would have reached the

            3
              Before the revision of the standard was proposed, the old SOP § 5.9 was renumbered
     (without change in text) to § 5.11. To avoid confusion, in this opinion we use “SOP § 5.9” to
     refer to the standard utilized by the Board before revision of the text, and we use “SOP § 5.11”
     to refer to the new text quoted in footnote 4.
            4
             SOP § 5.11 states:

                    No permit shall be granted for the purpose of holding religious
                    worship services, or otherwise using a school as a house of worship.
                    Permits may be granted to religious clubs for students that are
                    sponsored by outside organizations and otherwise satisfy the
                    requirements of this chapter on the same basis that they are granted
                    to other clubs for students that are sponsored by outside
                    organizations.


                                                      7
 1   merits and would have ruled that the proposed SOP § 5.11 was a reasonable, viewpoint-neutral,

 2   content-based restriction. Id. at 100-06 (Calabresi, J., concurring). I concluded that litigation

 3   over the constitutionality of the proposed SOP § 5.11 was unripe for adjudication. Id. at 122-23

 4   (Leval, J., concurring). This was because the proposed rule, although “approved at the highest

 5   levels,” had not been promulgated by the Board, and Bronx Household had neither applied, nor

 6   been refused, under the new standard. Id. at 115, 122 n.8. Judge Walker wrote in dissent that he

 7   would have reached the merits and would have ruled that enforcement of the new SOP was

 8   barred by Good News Club, because in his view it constituted impermissible viewpoint

 9   discrimination. Id. at 123-24 (Walker, J., dissenting). We remanded the case to the district court

10   for all purposes. Id. at 91 (per curiam).

11          In July 2007, shortly after our decision remanding the case, the Board adopted the

12   proposed SOP and published it for the first time. Bronx Household applied to use P.S. 15 under

13   the new rule, stating in its application that it planned to use the facilities for “Christian worship

14   services,” and the Board denied the application.5 Both parties then moved for summary

15   judgment. The district court again granted summary judgment in favor of Bronx Household and

16   permanently enjoined the Board from enforcing SOP § 5.11 against Bronx Household, adopting


            5
              Previously, the Board’s rules, which it published on its website, included no reference to
     the new SOP § 5.11; a person telephoning the Board to inquire whether there was a rule that
     governed use of school facilities after hours by religious groups was told no rule was in effect.
     In short, at the time we last heard this case, the new rule had not been promulgated, applied, or
     even disclosed to the public, and was not applied to Bronx Household. This led me to conclude,
     for reasons I explained in my concurring opinion, see 492 F.3d at 110-23, that there was no ripe
     controversy before the court as to the constitutionality of SOP § 5.11.
             Judges Walker and Calabresi have authorized me to say that upon reconsideration of the
     circumstances that obtained when the case was last before us, they are now far less confident that
     the case was in fact ripe for adjudication at that time. Now that the new SOP has been adopted,
     published, and applied against Bronx Household, the controversy is unquestionably ripe for
     adjudication.

                                                        8
 1   the reasoning of its previous opinion. Bronx Household of Faith v. Bd. of Educ. City of New

 2   York, No. 01 Civ. 8598 (S.D.N.Y. Nov. 1, 2007) (Preska, J.).

 3          The case is now before us for the fourth time.

 4                                              DISCUSSION

 5          P.S. 15 is a limited public forum. See Bronx Household III, 492 F.3d at 97-98 (Calabresi,

 6   J., concurring); id. at 125 (Walker, J., dissenting); Bronx Household I, 127 F.3d at 211-14. As

 7   explained in Judge Calabresi’s opinion in Bronx Household III, a category of speakers or

 8   expressive activities may be excluded from a limited public forum only on the basis of

 9   “reasonable, viewpoint-neutral rules.” Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426

10   F.3d 617, 626 (2d Cir. 2005). Thus, the operator of a limited public forum may engage in

11   “content discrimination, which may be permissible if it preserves the purposes of that limited

12   forum,” but may not engage in “viewpoint discrimination, which is presumed impermissible

13   when directed against speech otherwise within the forum’s limitations.” Rosenberger v. Rector

14   & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995); see also Christian Legal Soc’y v.

15   Martinez, 130 S. Ct. 2971, 2984 (2010); Good News Club, 533 U.S. at 106-07.

16          SOP § 5.11, on its face, prohibits use of school facilities for two types of activities. The

17   rule prohibits use of schools for “religious worship services,” and prohibits also “otherwise using

18   a school as a house of worship.” Bronx Household stated in its application that it sought a

19   permit to use P.S. 15 for “Christian worship services.” While the Board did not explain its

20   rejection of the application, it is clear that an application to use the school for “Christian worship

21   services” falls under the words of SOP § 5.11 prohibiting use for “religious worship services.”

22   We therefore assume the Board relied, at least in part, on this clause of its rule in rejecting the

23   application. (Accordingly, we need not, and this opinion does not, consider whether the Board

                                                       9
 1   could lawfully exclude Bronx Household under the second, less precise, branch of the rule

 2   proscribing use of a school “as a house of worship.”)6

 3                                                    A.

 4          The prohibition against using school facilities for the conduct of religious worship

 5   services bars a type of activity. It does not discriminate against any point of view. The conduct

 6   of religious worship services, which the rule excludes, is something quite different from free

 7   expression of a religious point of view, which the Board does not prohibit. The conduct of

 8   services is the performance of an event or activity. While the conduct of religious services

 9   undoubtedly includes expressions of a religious point of view, it is not the expression of that

10   point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion

11   to God, and the singing of hymns, whether done by a person or a group, do not constitute the

12   conduct of worship services. Those activities are not excluded. Indeed SOP § 5.11 expressly

13   specifies that permits will be granted to student religious clubs “on the same basis that they are

14   granted to other clubs for students.” The branch of the rule excluding religious worship services,

15   as we understand it, is designed by the Board to permit use of the school facilities for all of the

16   types of activities considered by the Supreme Court in Good News Club, Lamb’s Chapel v.

17   Center Moriches Union Free School District, 508 U.S. 384 (1993), and Rosenberger v. Rector &

18   Visitors of the University of Virginia, 515 U.S. 819, 830 (1995). The “religious worship


            6
              Nor does this opinion express any views as to whether “worship” may be lawfully
     excluded. Judge Walker criticizes this opinion for “declining even to consider” the
     constitutionality of the second branch of SOP § 5.11, which prohibits “using a school as a house
     of a worship.” Dissenting Op. 3. Because this opinion concludes that the Board’s rejection of
     Bronx Household’s application was lawful under the “religious worship services” branch of the
     rule, further inquiry into the whether the Board could also lawfully exclude Bronx Household
     under the “house of worship” branch of the rule is unnecessary to this ruling.


                                                      10
 1   services” clause does not purport to prohibit use of the facility by a person or group of persons

 2   for “worship.” What is prohibited by this clause is solely the conduct of a particular type of

 3   event: a collective activity characteristically done according to an order prescribed by and under

 4   the auspices of an organized religion, typically but not necessarily conducted by an ordained

 5   official of the religion. The conduct of a “religious worship service” has the effect of placing

 6   centrally, and perhaps even of establishing, the religion in the school.7

 7          There is an important difference between excluding the conduct of an event or activity

 8   that includes expression of a point of view, and excluding the expression of that point of view.

 9   Under rules consistent with the purposes of the forum, schools may exclude from their facilities

10   all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even



            7
              Judge Walker complains that our understanding of the meaning of the term “religious
     worship services” is “self-styled.” Dissenting Op. 8. We have not found in any dictionary a
     definition of the compound term “religious worship services.” Dictionaries define the verb to
     worship as “to honor or reverence as a divine being or supernatural power: VENERATE.”
     Webster’s Third New International Dictionary 2637 (1976); see also Oxford English Dictionary
     (Nov. 2010 online ed.), http://www.oed.com. (same). Worship, the noun, is defined as “an act,
     process, or instance of expressing such veneration by performing or taking part in religious
     exercises or ritual,” and “a form or type of worship or religious practice with its creed or ritual.”
     Webster’s Third New International Dictionary 2637. The word service is defined as “[w]orship;
     esp. public worship according to form and order,” “[a] ritual or series of words and ceremonies
     prescribed for public worship,” Oxford English Dictionary (Nov. 2010 online ed.), and “the
     performance of religious worship esp. according to settled public forms or conventions,”
     Webster’s Third New International Dictionary 2075.
             We believe the understanding we have put forth comports with common understanding
     and find nothing in dictionary definitions of the term’s three component words that is
     inconsistent with our understanding. Nor does Judge Walker offer a better definition, whether
     derived from a dictionary or another source.
             Furthermore, we do not understand why Judge Walker should concern himself with what
     we take SOP § 5.11 to mean by “religious worship services.” According to his argument, no
     matter what SOP § 5.11 means by “religious worship services,” it necessarily constitutes
     unlawful viewpoint discrimination because it excludes activity on the basis of the activity’s
     religious nature. If Judge Walker is right as to the applicable test, SOP § 5.11 is void no matter
     what it means by “religious worship services.”

                                                      11
 1   though, by participating in and viewing such events, participants and spectators may express

 2   their love of them. The basis for the lawful exclusion of such activities is not viewpoint

 3   discrimination, but rather the objective of avoiding either harm to persons or property, or

 4   liability, or a mess, which those activities may produce. We think it beyond dispute that a

 5   school’s decision to exclude martial arts matches would be lawful notwithstanding the honest

 6   claim of would-be participants that, through participating in the matches, they express their love

 7   of the sport and their character. The exclusion would nonetheless not represent viewpoint

 8   discrimination. While a school may prohibit the use of its facilities for such activities for valid

 9   reasons, it may not selectively exclude meetings that would celebrate martial arts, cow breeding,

10   or horseback riding, because that would be viewpoint discrimination. When there exists a

11   reasonable basis for excluding a type of activity or event in order to preserve the purposes of the

12   forum, such content-based exclusion survives First Amendment challenge notwithstanding that

13   participants might use the event to express their celebration of the activity. See Rosenberger,

14   515 U.S. at 829-30.

15          Similarly, SOP § 5.11 prohibits use of school facilities to conduct worship services, but

16   does not exclude religious groups from using schools for prayer, singing hymns, religious

17   instruction, expression of religious devotion, or the discussion of issues from a religious point of

18   view. While it is true without question that religious worship services include such expressions

19   of points of view, the fact that a reasonably excluded activity includes expressions of viewpoints

20   does not render the exclusion of the activity unconstitutional if adherents are free to use the

21   school facilities for expression of those viewpoints in all ways except through the reasonably

22   excluded activity. Under at least this branch of SOP § 5.11, the schools are freely available for

23   use by groups to express religious devotion through prayer, singing of hymns, preaching, and

                                                      12
 1   teaching of scripture or doctrine. It is only the performance of a worship service that is

 2   excluded.

 3          Nor is this rule of exclusion vulnerable on the ground that the activity excluded has some

 4   similarities to another activity that is allowed. To begin with, we reject the suggestion that

 5   because a religious worship service shares some features with activities such as a Boy Scout

 6   meeting, no meaningful distinction can be drawn between the two types of activities. See

 7   Dissenting Op. 11-12. Boy Scout meetings are not religious worship services. The fact that

 8   religion often encompasses concern for standards of conduct in human relations does not mean

 9   that all activity which expresses concern for standards of conduct in human relations must be

10   deemed religion.

11          The argument might be made that, because the rule prohibits use of facilities for

12   “religious worship services,” it excludes religious worship services while permitting non-

13   religious worship services. This argument is a canard. The presence of the word “religious” in

14   the phrase is superfluous and does not change the meaning. There is no difference in usage

15   between a “worship service” and a “religious worship service;” both refer to a service of

16   religious worship. See Bronx Household I, 127 F.3d at 221 (Cabranes, J., concurring in part and

17   dissenting in part) (“Unlike religious ‘instruction,’ there is no real secular analogue to religious

18   ‘services,’ such that a ban on religious services might pose a substantial threat of viewpoint

19   discrimination between religion and secularism.”). We think, with confidence, that if 100

20   randomly selected people were polled as to whether they attend “worship services,” all of them

21   would understand the questioner to be inquiring whether they attended services of religious

22   worship. While it is true that the word “worship” is occasionally used in nonreligious contexts,

23   such as to describe a miser, who is said to “worship” money, or a fan who “worships” a movie

                                                      13
 1   star,8 the term “worship services” has no similar use; meetings of a celebrity’s fan club are not

 2   described as “worship services.” Worship services are religious; the rule describes the entire

 3   category of activity excluded. The meaning of the rule’s exclusion of “religious worship

 4   services” would be no different if it identified the excluded activity as “worship services.”

 5          The application of SOP § 5.11 to deny Bronx Household’s request to use school facilities

 6   for worship services is thus in no way incompatible with the Supreme Court’s decisions in Good

 7   News Club, Lamb’s Chapel, and Rosenberger. In Good News Club, a school district had invoked

 8   a policy prohibiting after-hours use of a school for “religious purposes” to deny a Christian

 9   organization permission to use space in a school building for “religious instruction” of children

10   aged 6 to 12. 533 U.S. at 103-04. The Supreme Court ruled that this exclusion violated the Free

11   Speech Clause. Id. at 120. The denial constituted viewpoint discrimination, rather than content-

12   based restriction, because the school district refused to allow the teaching of moral lessons from

13   a religious perspective, while permitting the teaching of moral lessons from a secular

14   perspective. Id. at 107-08.

15          Similarly, in Lamb’s Chapel, the Court found unconstitutional a school district’s

16   rejection of a church’s request to show a Christian film series about child rearing and family

17   values, again on the basis of a policy prohibiting after-hours use of school property “for religious

18   purposes.” Lamb’s Chapel, 508 U.S. at 387-89, 393. Like the moral lessons taught in the Good

19   News Club, the film series “dealt with a subject otherwise permissible . . . [but] its exhibition


            8
              In the view of the author, such uses of the word are metaphorical. A statement that
     someone worships money or worships a movie star is intended to be understood as an assertion
     that the subject treats money or the movie star with the same devotion or reverence that a
     religious believer accords to God. (Judge Calabresi leaves open the question whether such
     statements are purely metaphorical or whether they too describe a form of worship. See
     Concurring Op. 1.)

                                                      14
 1   was denied solely because the series dealt with the subject from a religious standpoint.” Id. at

 2   394. And in Rosenberger, the Court concluded that the University of Virginia discriminated on

 3   the basis of viewpoint, when, in accordance with its policy, it refused to reimburse the printing

 4   expenses of a student newspaper with a Christian editorial perspective because the publication

 5   “promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality.”

 6   Rosenberger, 515 U.S. at 827, 831-32. Because the University’s refusal resulted from the

 7   newspaper’s “prohibited perspective, not the general subject matter,” it violated the Free Speech

 8   Clause. Id. at 831.

 9          In each of those cases, the policy being enforced categorically excluded expressions of

10   religious content. Here, by contrast, there is no restraint on the free expression of any point of

11   view. Expression of all points of view is permitted. The exclusion applies only to the conduct of

12   a certain type of activity – the conduct of worship services – and not to the free expression of

13   religious views associated with it. It is clear that the Board changed its rule in order to conform

14   to the dictates of Good News Club, abandoning the prohibition of “religious instruction” (which

15   involved viewpoint discrimination). Indeed, SOP § 5.11 expressly permits use of school

16   facilities by “religious clubs for students that are sponsored by outside organizations” on the

17   same basis as other clubs for students sponsored by outside organizations.



18          Accordingly, as SOP § 5.11's prohibition of “religious worship services” does not

19   constitute viewpoint discrimination, it is a content-based exclusion, which passes constitutional

20   muster so long as the exclusion is reasonable in light of the purposes of the forum.




                                                      15
 1                                                    B.

 2          We therefore go on to consider whether this exclusion is “reasonable in light of the

 3   purpose served by the forum.” Rosenberger, 515 U.S. at 829 (quoting Cornelius v. NAACP

 4   Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)). Precedent, furthermore, calls for

 5   giving “appropriate regard” to the Board’s judgment as to which activities are compatible with

 6   its reasons for opening schools to public use. Christian Legal Soc’y, 130 S. Ct. at 2989. By

 7   excluding religious worship services, the Board seeks to steer clear of violating the

 8   Establishment Clause. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-

 9   62 (1995) (“There is no doubt that compliance with the Establishment Clause is a state interest

10   sufficiently compelling to justify content-based restrictions on speech.”); Widmar v. Vincent, 454

11   U.S. 263, 271 (1981) (noting that an interest in avoiding a violation of the Establishment Clause

12   “may be characterized as compelling”). In order to determine whether the content restriction for

13   this purpose is reasonable and thus permissible, we need not decide whether use of the school for

14   worship services would in fact violate the Establishment Clause, a question as to which

15   reasonable arguments could be made either way, and on which no determinative ruling exists. It

16   is sufficient if the Board has a strong basis for concern that permitting use of a public school for

17   the conduct of religious worship services would violate the Establishment Clause. Marchi v. Bd.

18   of Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d Cir. 1999) (“[W]hen government

19   endeavors to police itself and its employees in an effort to avoid transgressing Establishment

20   Clause limits, it must be accorded some leeway, even though the conduct it forbids might not

21   inevitably be determined to violate the Establishment Clause . . . .”); cf. Ricci v. DeStefano, 129

22   S. Ct. 2658, 2677 (2009) (race-based employment action violates Title VII unless the employer

23   has a strong basis to believe it otherwise will be subject to disparate impact liability). We

                                                      16
 1   conclude that the Board has a strong basis to believe that allowing the conduct of religious

 2   worship services in schools would give rise to a sufficient appearance of endorsement to

 3   constitute a violation of the Establishment Clause.

 4          The Supreme Court’s decision in Lemon v. Kurtzmann, 403 U.S. 602 (1971), provides the

 5   framework for evaluating challenges under the Establishment Clause.9 The Court instructed in

 6   Lemon that government action which interacts with religion (1) “must have a secular . . .

 7   purpose,” (2) must have a “principal or primary effect . . . that neither advances nor inhibits

 8   religion,” and (3) “must not foster an excessive government entanglement with religion.” Id. at

 9   612-13 (internal quotation marks omitted). In discussing the second prong of the Lemon test, the

10   Supreme Court has warned that violation of the Establishment Clause can result from perception

11   of endorsement. “The Establishment Clause, at the very least, prohibits government from

12   appearing to take a position on questions of religious belief or from ‘making adherence to a

13   religion relevant in any way to a person’s standing in the political community.’” Cnty. of

14   Allegheny, 492 U.S 573, 593-94 (1989) (emphasis added) (quoting Lynch v. Donnelly, 465 U.S.

15   668, 687 (O’Connor, J., concurring)); see also Lynch, 465 U.S. at 690 (O’Connor, J., concurring)

16   (observing that the second prong of the Lemon test “asks whether, irrespective of government’s

17   actual purpose, the practice under review in fact conveys a message of endorsement or

18   disapproval”); Skoros, 437 F.3d at 17-18. It was certainly not unreasonable for the Board to

19   conclude that permitting the conduct of religious worship services in the schools might fail the


            9
              Although the Lemon test has been much criticized, the Supreme Court has declined to
     disavow it and it continues to govern the analysis of Establishment Clause claims in this Circuit.
     Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 634 (2d Cir. 2005); see Skoros
     v. City of New York, 437 F.3d 1, 17 n.13 (2d Cir. 2006) (noting that this Court is required to
     respect precedent applying the Lemon test “until it is reconsidered by this court sitting en banc or
     is rejected by a later Supreme Court decision”).

                                                      17
 1   second and third prongs of the Lemon test, and that the adoption of the “worship services”

 2   branch of SOP § 5.11 was a reasonable means of avoiding a violation of the Establishment

 3   Clause.

 4             The performance of worship services is a core event in organized religion. See Bronx

 5   Household, 226 F. Supp. 2d at 410 (quoting Pastor Hall describing Bronx Household’s Sunday

 6   worship service as “the indispensable integration point for our church”); Mark Chaves,

 7   Congregations in America 227 (2004) (reporting results of survey finding that 99.3% of religious

 8   congregations hold services at least once per week). Religious worship services are conducted

 9   according to the rules dictated by the particular religious establishment and are generally

10   performed by an officiant of the church or religion. When worship services are performed in a

11   place, the nature of the site changes. The site is no longer simply a room in a school being used

12   temporarily for some activity. The church has made the school the place for the performance of

13   its rites, and might well appear to have established itself there. The place has, at least for a time,

14   become the church.

15             Moreover, the Board’s concern that it would be substantially subsidizing churches if it

16   opened schools for religious worship services is reasonable. The Board neither charges rent for

17   use of its space, nor exacts a fee to cover utilities such as electricity, gas, and air conditioning.10

18   The City thus foots a major portion of the costs of the operation of a church. It is reasonable for

19   the Board to fear that allowing schools to be converted into churches, at public expense and in

20   public buildings, might “foster an excessive government entanglement with religion” that

21   advances religion. See DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 419 (2d Cir.


               10
             The only fee charged is for the partial cost of custodial work, and for security services
     when provided by the Board.

                                                        18
1    2001) (concluding that a publicly funded private hospital whose employees coerced patients to

2    participate in a religious support group would violate the Establishment Clause, noting that the

3    Supreme Court’s “‘decisions provide no precedent for the use of public funds to finance

4    religious activities,’” and that “neutral administration of the state aid program . . . is an

5    insufficient constitutional counterweight to the direct public funding of religious activities”

6    (quoting Mitchell v. Helms, 530 U.S. 793, 840 (2000) (O’Connor, J., concurring in the

7    judgment))).

 8           The Board could also reasonably worry that the regular, long-term conversion of schools

 9   into state-subsidized churches on Sundays would violate the Establishment Clause by reason of

10   public perception of endorsement. Cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132

11   (2009) (ruling that monument in public park was properly viewed as government speech

12   because, among other reasons, the monument was permanent). Such a concern has been

13   vindicated by the experience in the schools in the seven years since the district court granted the

14   preliminary injunction. For example, Bronx Household has held its worship services at P.S. 15,

15   and nowhere else, every Sunday since 2002. Under the injunction, at least twenty-one other

16   congregations have used a school building on Sundays as their regular place for worship

17   services.11 During these Sunday services, the schools are dominated by church use. See Capitol

18   Square, 515 U.S. at 777 (O’Connor, J., concurring in part and concurring in the judgment) (“At

19   some point . . . a private religious group may so dominate a public forum that a formal policy of

20   equal access is transformed into a demonstration of approval.”). Because of their large



             11
              The record in this regard has not been updated since 2005. At oral argument, counsel
     for the Board told us that the number of churches using schools for worship services has
     increased substantially since that time.

                                                       19
 1   congregations, churches generally use the largest room in the building, or multiple rooms,

 2   sometimes for the entire day. See Cnty. of Allegheny, 492 U.S. at 579, 599-600 (finding

 3   unconstitutional endorsement of religion where crèche was placed on the “Grand Staircase” of

 4   courthouse, the “main” and “most public” part of the building, which was not available to other

 5   displays simultaneously). Church members post signs, distribute flyers, and proselytize outside

 6   the school buildings. In some schools, no other outside organizations use the space.

 7   Accordingly, on Sundays, some schools effectively become churches. As a result of this church

 8   domination of the space, both church congregants and members of the public identify the

 9   churches with the schools. The possibility of perceived endorsement is made particularly acute

10   by the fact that P.S. 15 and other schools used by churches are attended by young and

11   impressionable students, who might easily mistake the consequences of a neutral policy for

12   endorsement. Cf. Van Orden v. Perry, 545 U.S. 677, 703 (2005) (Breyer, J., concurring)

13   (distinguishing lawful display of Ten Commandments from cases in which display was “on the

14   grounds of a public school, where, given the impressionability of the young, government must

15   exercise particular care in separating church and state”); Skoros, 437 F.3d at 24-25 (“A mature

16   reasonable objective observer . . . would take into consideration that schoolchildren are the

17   intended audience for the displays, that these children are being reared in a variety of faiths (as

18   well as none), and that, by virtue of their ages, they may be especially susceptible to any

19   religious messages conveyed by such displays.”).12


            12
               The dissent maintains that Good News Club precludes the Board from relying on this
     concern, because the facts of this case present less reason to fear the appearance of endorsement
     than those of Good News Club. Dissenting Op. 22-23. We disagree with this assessment of the
     facts. In our view, Bronx Household’s long-term weekly use of P.S. 15 for Christian worship
     services at the Board’s expense, and the effective exclusion of competing religious groups who
     would wish to hold services in schools on days other than Sunday but are effectively precluded

                                                      20
 1          Furthermore, the fact that school facilities are principally available for public use on

 2   Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as

 3   the principal day for worship services. Jews and Muslims generally cannot use school facilities

 4   for their services because the facilities are often unavailable on the days that their religions

 5   principally prescribe for services. At least one request to hold Jewish services (in a school

 6   building used for Christian services on Sundays) was denied because the building was

 7   unavailable on Saturdays. This contributes to a perception of public schools as Christian

 8   churches, but not synagogues or mosques.

 9          Finally, the religious services Bronx Household conducts in the school are not open on

10   uniform terms to the general public. Bronx Household acknowledges that it excludes persons

11   not baptized, as well as persons who have been excommunicated or who advocate the Islamic

12   religion, from full participation in its services. See Bronx Household III, 492 F.3d at 120 (Leval,

13   J., concurring); cf. Christian Legal Soc’y, 130 S. Ct. at 2995 (upholding university’s denial of

14   Registered Student Organization status to student group that refused to comply with non-

15   discrimination policy for ideological reasons). The de facto favoritism of the Christian (Sunday

16   service) religions over others, as well as the deliberate exclusion practiced by Bronx Household,

17   aggravates the potential Establishment Clause problems the Board seeks to avoid.

18          In the end, we think the Board could have reasonably concluded that what the public

19   would see, were the Board not to exclude religious worship services, is public schools, which

20   serve on Sundays as state-sponsored Christian churches. For these reasons, the Board had a



     by school-related activities from doing so, provides a substantially stronger basis for fearing an
     Establishment Clause violation than the after-school use of a single classroom by a religious
     group at issue in Good News Club.

                                                       21
 1   strong basis to be wary that permitting religious worship services in schools, and thus effectively

 2   allowing schools to be converted into churches on Sunday, would be found to violate the

 3   Establishment Clause. To reiterate, we do not say that a violation has occurred, or would occur

 4   but for the policy. We do find, however, that it was objectively reasonable for the Board to

 5   worry that use of the City’s schools for religious worship services, conducted primarily on

 6   Sunday when the schools are most available to outside groups, exposes the City to a substantial

 7   risk of being found to have violated the Establishment Clause.

 8          This conclusion is not, as the dissent maintains, foreclosed by the Supreme Court’s

 9   precedents. We recognize that in Good News Club, Widmar, Lamb’s Chapel, and Rosenberger,

10   the Supreme Court rejected arguments that the rules in question, and their application to bar or

11   disfavor particular activities, were justified by concern to avoid violating the Establishment

12   Clause. But those rulings were based on their particular facts, which are significantly different

13   from those here. In none of those cases did the Supreme Court suggest that a reasonable concern

14   to avoid violation of the Establishment Clause can never justify a governmental exclusion of a

15   religious practice. In arguing that the Supreme Court’s precedents forbid our ruling, the dissent

16   relies on broad statements of principle, often from opinions that did not command a majority of

17   the Court, and contends that, taken together, they show the invalidity of the reasons the Board

18   proffers for fearing an Establishment Clause violation. However, neither the Supreme Court nor

19   this court has considered the constitutionality of a policy that allows the regular use of public

20   schools for religious worship services. Indeed, the Court in Good News Club expressly declined

21   to address the lawfulness of a policy that excludes “mere” religious worship, a category of

22   activity which is substantially broader than the “religious worship services” covered by the first

23   branch of SOP § 5.11. Good News Club, 533 U.S. at 112 n.4.

                                                      22
 1          In any event, the reasonableness of the Board’s concern to avoid creating a perception of

 2   endorsement resulting from regular Sunday conversion of schools into Christian churches,

 3   together with the absence of viewpoint-based discrimination, distinguishes this case from the

 4   Supreme Court’s precedents striking down prohibitions of the use of educational facilities or

 5   funds by religious groups. All of those cases involved rules or policies which broadly

 6   suppressed religious viewpoints and which, in their particular applications, disfavored activities

 7   which had far less potential to convey the appearance of official endorsement of religion. In

 8   Widmar, the challenged policy prohibited the use of university facilities for religious worship or

 9   even discussion. In Rosenberger, the challenged policy prohibited the reimbursement of

10   expenses incurred by university student groups for activities that “primarily promote[d] or

11   manifest[ed] a particular belie[f] in or about a deity or an ultimate reality.” 515 U.S. at 825.

12   And in Lamb’s Chapel and Good News Club, the challenged policies prohibited the use of school

13   district property for any and all “religious purposes.” See Good News Club, 533 U.S. at 103;

14   Lamb’s Chapel, 508 U.S. 387. In each case, the policy being enforced, unlike SOP § 5.11, was

15   broadly categorical in its exclusion of religious content. In addition, the activities disallowed or

16   disfavored under those policies – meetings of Christian clubs for students (in Widmar and Good

17   News Club), the publication of a newspaper with a Christian editorial viewpoint (in

18   Rosenberger), and the showing of a Christian film series (in Lamb’s Chapel) – were much less

19   likely than the conduct of Sunday worship services to evoke an appearance of endorsement of

20   religion by public school authorities. In determining that there was no danger of an

21   Establishment Clause violation in these cases, the Supreme Court relied on the fact that facilities

22   and funds were available to and used by numerous and diverse private groups. See Lamb’s

23   Chapel, 508 U.S. at 395 (observing that school district’s property “had repeatedly been used by a

                                                      23
 1   wide variety of private organizations”); Rosenberger, 515 U.S. at 842 (student activity funds

 2   were distributed to “a wide spectrum of student groups”); Widmar, 454 U.S. at 277 (university

 3   provided benefits to “over 100 student groups of all types”); Good News Club, 533 U.S. at 113

 4   (district “made its forum available to other organizations”). In finding insufficient risk of the

 5   perception of endorsement, the Court observed in Widmar that university students are “young

 6   adults,” who are “less impressionable than younger students” and can therefore appreciate that a

 7   policy permitting religious student groups to use meeting space on the same basis as other types

 8   of student groups was neutral toward religion. 454 U.S. at 275-75 & n.14. And in Lamb’s

 9   Chapel and Good News Club, the Court found it significant that the proposed film exhibition and

10   club meetings would be open to the public, not just to the members of the Christian groups

11   sponsoring the events. See Good News Club, 533 U.S. at 113; Lamb’s Chapel, 508 U.S. at 395.

12          The use of P.S. 15 and other schools for Sunday worship services is more likely to

13   promote a perception of endorsement than the uses in those cases. A worship service is an act of

14   organized religion that consecrates the place in which it is performed, making it a church.

15   Unlike the groups seeking access in those cases, Bronx Household and the other churches that

16   have been allowed access under the injunction tend to dominate the schools on the day they use

17   them. They do not use a single, small classroom, and are not merely one of various types of

18   groups using the schools; they use the largest rooms and are typically the only outside group

19   using a school on Sunday. They identify the schools as their churches, as do many residents of

20   the community. The students of P.S. 15 are not the “young adults” of Rosenberger and Widmar,

21   but young children who are less likely to understand that the church in their school is not

22   endorsed by their school. The fact that New York City’s school facilities are more available on

23   Sundays than any other day of the week means that there is a de facto bias in favor of Christian

                                                      24
 1   groups who want to use the schools for worship services, compounded by the exclusionary

 2   practices of churches like Bronx Household.

 3          Furthermore, the Board’s prohibition on the use of school facilities for “religious worship

 4   services” is far less broad than the exclusions of use for “religious purposes” or “religious

 5   discussion” in the earlier cases, which included in their sweep activities that are similar to

 6   secular activities. The broad scope of the exclusions considered in the other cases resulted in

 7   viewpoint discrimination, rather than mere content restriction. The exclusions also disfavored

 8   more religious activity than necessary to avoid an actual Establishment Clause violation. In

 9   contrast, the “religious worship services” clause of SOP § 5.11 is narrowly drawn to exclude a

10   core activity in the establishment of religion – worship services – and thereby avoid the

11   perceived transformation of school buildings into churches.

12          It is not our contention that the Supreme Court’s precedents compel our conclusion. On

13   the other hand, we cannot accept Judge Walker’s contention that the Court has effectively

14   decided this case. This case is terra incognita. The Supreme Court’s precedents provide no

15   secure guidelines as to how it should be decided. The main lesson that can be derived from them

16   is that they do not supply an answer to the case before us. Precedent provides no way of

17   guessing how the Supreme Court will rule when it comes to consider facts comparable to these.

18   By hunting and pecking through the dicta of various opinions, one can find snippets that

19   arguably support a prediction either way. Judge Calabresi and I believe that the Board’s

20   exclusion of Bronx Household’s conduct of worship services is viewpoint-neutral and justified

21   by the Board’s reasonable concern that permitting use of school facilities for worship services

22   would violate the Establishment Clause.

23                                                 *   *    *

                                                       25
 1          Bronx Household contends that SOP § 5.11 is not a measure reasonably designed to

 2   avoid an Establishment Clause violation but is instead itself a violation of that clause. Bronx

 3   Household argues that SOP § 5.11 fails the Lemon test because it sends a message of official

 4   hostility to religion and because its enforcement fosters excessive government entanglement with

 5   religion. We are not persuaded.

 6          As emphasized above, SOP § 5.11 prohibits worship services in schools, but permits the

 7   expression of religious points of view through activities such as prayer, singing of hymns,

 8   preaching, and teaching or discussion of doctrine or scripture. Given the broad range of

 9   expressive religious activity that the policy does allow, we do not think a reasonable observer

10   would perceive hostility to religion in the enforcement of SOP § 5.11.

11          Bronx Household also argues that SOP § 5.11 not only conveys the appearance of official

12   hostility, but is in fact motivated by such hostility. We find no basis for this contention. Of

13   course, “government must abstain from regulating speech when the specific motivating ideology

14   or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger,

15   515 U.S. at 829. However, we do not understand why Bronx Household attributes the Board’s

16   position to hostility rather than a good faith desire to navigate successfully through the poorly

17   marked, and rapidly changing, channel between the Scylla of viewpoint discrimination and the

18   Charybdis of violation of the Establishment Clause.

19          The Board has by no means been alone in the belief that the Establishment Clause

20   requires governmental educational institutions to be cautious of harboring or sponsoring

21   religious activities. The Supreme Court’s rulings in Rosenberger, Lamb’s Chapel, and Good

22   News Club deviated from a previously widespread governmental and judicial perception of the

23   scope of the Establishment Clause’s prohibitions. In each of those three cases, the school

                                                      26
 1   administrators and the lower court judges believed that the challenged policies, which were

 2   intended to keep religion at a distance from public institutions, were mandated by the

 3   Establishment Clause, or at least consistent with the Constitution. And in two of the cases, a

 4   number of Supreme Court justices did as well.

 5           There is no better reason to believe, as Bronx Household suggests, that the Board was

 6   motivated by hostility toward religion than there is to believe that such hostility has motivated

 7   other school authorities throughout the country, the lower court judges and dissenting Supreme

 8   Court justices in Lamb’s Chapel, Rosenberger, and Good News Club, or Judge Calabresi and me.

 9   We see no sound basis for concluding that the Board’s actions have been motivated by anything

10   other than a desire to find the proper balance between two clauses of the First Amendment, the

11   interpretation of which by the Supreme Court has been in flux and uncertain.13

12           Bronx Household also argues that SOP § 5.11 cannot be applied without

13   unconstitutionally entangling the Board in matters of religious doctrine. See Agostini v. Felton,

14   521 U.S. 203, 232-33 (1997). According to Bronx Household, any attempt by the Board to

15   distinguish between religious activity that falls under the exclusion of “worship services,” and

16   religious activity that does not, necessarily places the Board in violation of the duty imposed by

17   Lemon to avoid “excessive government entanglement with religion.” 403 U.S. at 613.14

             13
              Judge Walker similarly asserted in his dissent in Bronx Household III that the Board’s
     adoption of SOP § 5.11 was motivated by “long-standing hostility to religious groups.” See
     Bronx Household III, 492 F.3d at 127 (“The Board’s avowed purposed in enforcing the
     regulation in this case . . . and its long-standing hostility to religious groups, leads ineluctably to
     the conclusion that the Board, in fact, has undertaken to exclude a particular viewpoint from its
     property.”). Judge Walker has not repeated that assertion in his present opinion, but neither has
     he retracted it.
             14
               Judge Walker has also made this argument. See Bronx Household III, 492 F.3d at 131
     (Walker, J., dissenting) (arguing that the Board would “flout[] the Establishment Clause” by
     trying to distinguish worship because it would “no doubt have to interpret religious doctrine or

                                                       27
 1          To begin with, whatever merit this argument may have in other types of cases, we do not

 2   see what application it has here. Bronx Household does not contest that it conducts religious

 3   worship services. To the contrary, it applied for a permit to conduct “Christian worship

 4   services,” and the evidence suggests no reason to question its own characterization of its

 5   activities. Cf. Christian Legal Soc’y, 130 S. Ct. at 2982-84; Faith Ctr. Church Evangelistic

 6   Ministries v. Glover, 480 F.3d 891, 918 & n.18 (9th Cir. 2007), abrogated on other grounds by

 7   Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008).



 8          This argument, furthermore, overlooks the nature of the duties placed on government

 9   officials by the Establishment Clause (as well as the Free Exercise of Religion Clause). As we

10   outlined above, while other clauses of the First Amendment prohibit government officials from

11   discriminating on the basis of religious viewpoint, the Establishment Clause prohibits them from

12   taking action that would constitute establishment of religion. In various circumstances,

13   especially when dealing with initiatives for the conduct of undoubtedly religious exercises on

14   public property, government officials cannot discharge their constitutional obligations without

15   close examination of the particular conduct to determine if it is properly deemed to be religious

16   and if so whether allowing it would constitute a prohibited establishment of religion. Bronx

17   Household’s argument, if valid, would effectively nullify the Establishment Clause.15

18          Without doubt there are circumstances where a government official’s involvement in


     defer to the interpretations of religious officials in order to keep worship, and worship alone, out
     of its schools” (internal quotation marks omitted)).
            15
               The Free Exercise of Religion Clause also at times compels government officials to
     examine conduct of an undoubtedly religious nature to determine whether it constitutes exercise
     of religion, and is thus entitled to the clause’s protection, or does not, and is thus subject to
     regulation.

                                                      28
 1   matters of religious doctrine constitutes excessive government entanglement. See, e.g.,

 2   Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 427 (2d Cir. 2002). But it

 3   does not follow, as Bronx Household seems to argue, that the mere act of inspection of religious

 4   conduct is an excessive entanglement. The Constitution, far from forbidding government

 5   examination of assertedly religious conduct, at times compels government officials to undertake

 6   such inquiry in order to draw necessary distinctions.16 See Lee v. Weisman, 505 U.S. 577, 598

 7   (1992) (“Our jurisprudence in this area is of necessity one of line-drawing, of determining at

 8   what point a dissenter’s rights of religious freedom are infringed by the State.”); Cnty. of

 9   Allegheny, 492 U.S. at 630 (O’Connor, J., concurring in part and concurring in the judgment)

10   (“We cannot avoid the obligation to draw lines, often close and difficult lines, in deciding

11   Establishment Clause cases . . . .”). It was just such inspection which permitted the Supreme

12   Court to allow the display of arguably religious symbols in certain public contexts while

13   prohibiting it in others. Compare Van Orden, 545 U.S. at 703 (Breyer, J., concurring), and Cnty.

14   of Allegheny, 492 U.S. at 620, with McCreary, 545 U.S. at 881, and Cnty. of Allegheny, 492 U.S.

15   at 601-02.

16                                                    C.

17          Judge Walker’s dissenting opinion criticizes our ruling on a number of grounds. We

18   believe his criticisms are not well founded.

19          1) Judge Walker’s primary argument is that, because SOP § 5.11’s exclusion of religious

20   worship services depends on their religious nature, which we do not dispute, it necessarily



            16
              Applying such a rule would, for example, mean that every claim of entitlement under
     the Religious Land Use and Institutionalized Persons Act (RLIUPA), 42 U.S.C. § 2000cc et seq.,
     would be immune from court inquiry into whether the use is in fact a religious use.

                                                      29
 1   discriminates illegally on the basis of viewpoint. See Dissenting Op. 10 (“The Board cannot

 2   lawfully exclude the conduct of an event based solely on the religious viewpoints expressed

 3   during the event.”). He concludes that there is “no doubt that it is ‘religious services’ and

 4   ‘worship’ that the Board is targeting for exclusion” because “[t]he Board is otherwise

 5   unconcerned with comparable ceremonial speech occurring on school premises.” Dissenting Op.

 6   9. According to his analysis, the governing test should be “whether Bronx Household is

 7   engaging in speech that fulfills the purposes of the forum and is consistent with non-religious

 8   speech occurring on school premises.” Dissenting Op. 9. If Bronx Household is engaging in

 9   such speech and is excluded because of the religious nature of its activity, the exclusion is

10   necessarily illegal viewpoint discrimination.

11           The problem we find with Judge Walker’s analysis is that it either ignores the crucial role

12   of the Establishment Clause in motivating the Board’s decision or it simply reads that clause out

13   of the Constitution. The general effect of the Establishment Clause is to prohibit government

14   from taking actions which have the effect of establishing religion. Assuming that the

15   Establishment Clause has some meaning – that is to say, assuming there are some forms of

16   activity which government may not conduct (or may not permit) by reason of the Establishment

17   Clause – any such prohibitions necessarily depend on the religious nature of the particular

18   activity. If the activity is not of religious nature, it does not fall within the purview of the

19   Establishment Clause.

20           This feature is evident throughout the Supreme Court’s Establishment Clause

21   jurisprudence. In Lee v. Weisman, 505 U.S. 577 (1992), for example, the Supreme Court held

22   that the Establishment Clause prohibited a public high school from including the recitation of a

23   prayer in its graduation ceremony. The prayer was unquestionably an expressive act, and the

                                                       30
 1   prohibition by the Court under the Establishment Clause unquestionably depended on the

 2   religious nature of prayer. Had the school administration sought to include instead of a prayer a

 3   non-religious affirmation of patriotism, or of love of learning, that would not have been

 4   prohibited by the Establishment Clause.

 5          In County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Court held that the

 6   Establishment Clause prohibited the display of a crèche in the Grand Staircase of the Allegheny

 7   County Courthouse, but upheld against Establishment Clause challenge another display which

 8   included an 18-foot menorah, a 45-foot Christmas tree, and a sign declaring devotion to liberty.

 9   Both displays conveyed an expressive message. What distinguished them was the fact that the

10   crèche “sent an unmistakable message that [the county] supports and promotes the Christian

11   praise to God,” id. at 600, while the menorah, tree, and sign celebrated the holiday season on a

12   non-sectarian basis, id. at 617-18.

13          In the companion cases of McCreary County v. ACLU, 545 U.S. 844 (2005), and Van

14   Orden v. Perry, 545 U.S. 677 (2005), the Court distinguished between two public displays of the

15   Ten Commandments based on whether they conveyed a message of governmental support or

16   endorsement of religion. In McCreary, the Court upheld an injunction prohibiting a display of

17   the Ten Commandments in two courthouses, because the displays had a “predominantly religious

18   purpose.” McCreary, 545 U.S. at 881. By contrast, Justice Breyer’s controlling opinion in Van

19   Orden found that the display of the Ten Commandments in the Texas State Capitol did not

20   violate the Establishment Clause because, when viewed in context, it conveyed a predominantly

21   secular message of the importance of law. Van Orden, 545 U.S. at 701-02 (Breyer, J.,

22   concurring). The religious (or non-religious) nature of the two displays again determined

23   whether their presence on public property was lawful.

                                                     31
 1          In light of such decisions, Judge Walker’s view of the question seems to us not

 2   compatible with the Establishment Clause. Inevitably, whatever expressive conduct is

 3   prohibited by the Establishment Clause is prohibited by reason of its religious nature and would

 4   not be prohibited if what it expressed were not related to religion.

 5          We do not suggest for a moment that any and all expressive activity with religious

 6   content must be excluded from government property or from government-controlled enterprise,

 7   such as the administration of a school system. The Supreme Court has unquestionably ruled

 8   otherwise in Rosenberger, Good News Club, and other cases. Our point is only that the test

 9   cannot be as Judge Walker views it. The mere fact that government does not permit an

10   expressive activity, which it would permit if the activity were not religious, does not compel the

11   conclusion that it is engaging in unconstitutional viewpoint discrimination. Whatever forms of

12   governmental action are prohibited by the Establishment Clause are prohibited in part because of

13   their religious nature and would not be prohibited if they were not religious.

14          Where government excludes a category of activity involving religious expression out of

15   concern for the limitations imposed on government by the Establishment Clause, the lawfulness

16   of the exclusion (notwithstanding that the religious content motivates the exclusion) will turn on

17   whether allowing the activity would either violate the Establishment Clause or place the

18   government entity at a reasonably perceived risk of violating the Establishment Clause. The

19   Supreme Court has never ruled on whether permitting the regular conduct of religious worship

20   services in public schools constitutes a violation of the Establishment Clause, and we reach no

21   conclusion on that question. As discussed above, considering all the circumstances, we think the

22   risk that permitting the regular conduct of worship services in public schools would violate the

23   Establishment Clause is sufficiently high to justify the Board’s adoption of a content restriction

                                                      32
 1   that prohibits the performance of such services but does not otherwise limit the expression of

 2   religious viewpoints.

 3           2) Judge Walker maintains that our ruling approves the exclusion of the very sort of

 4   conduct that the Supreme Court ruled in Good News Club could not be excluded. Dissenting Op.

 5   10. We respectfully disagree. The application of the Good News Club, which the school district

 6   denied, was for a Christian group to hold after-school meetings for children between the ages of

 7   six and twelve, where they would have “a fun time of singing songs, hearing a Bible lesson and

 8   memorizing scripture.” Good News Club, 533 U.S. at 103. The club later gave an expanded

 9   description by letter to the effect that

10           Ms. Fournier tak[es] attendance. As she calls a child’s name, if the child recites a
11           Bible verse the child receives a treat. After attendance, the Club sings songs. Next
12           Club members engage in games that involve, inter alia, learning Bible verses. Ms.
13           Fournier then relates a Bible story and explains how it applies to Club members’
14           lives. The Club closes with prayer. Finally, Ms. Fournier distributes treats and the
15           Bible verses for memorization.

16   Id.

17           Without doubt there is some overlap between Bronx Household’s conduct of Christian

18   worship services and the children’s club meetings that were the subject of Good News Club, in

19   that worship services generally include song, prayer, and scripture. Nonetheless, we doubt that

20   objective observers employing ordinary understandings of the English language would describe

21   Ms. Fournier’s club meetings as worship services. Judge Walker seeks to discern the meaning of

22   the Supreme Court’s majority opinion from the emphatic objections to it expressed in Justice

23   Souter’s dissenting opinion. He bases his assertion that the activities of the Good News Club

24   were “religious worship services” on Justice Souter’s dissenting statement that what the majority

25   allowed into a public school was in effect “an evangelical service of worship.” 533 U.S. at 138.



                                                     33
 1   It is axiomatic that a dissenting opinion is generally the least reliable place to look to discern the

 2   meaning of a majority opinion. Dissenters commonly exaggerate what they see as inevitable,

 3   appalling consequences of the majority’s ruling, a phenomenon which led Judge Friendly to

4    observe that dissenting opinions are “rarely a safe guide to the holding of the majority.” United

5    States v. Gorman, 355 F.2d 151, 155 (2d Cir. 1965). Regardless of whether the dissenting

6    justices believed the activities of the Good News Club were equivalent to “an evangelical service

7    of worship,” there is no indication that the majority shared that view. Indeed, rejecting the

 8   argument advanced by the school district in Good News Club “that the Club’s activities

 9   constitute ‘religious worship,’” the majority expressly noted that the court below had “made no

10   such determination,” emphasizing that it was not addressing what ruling it would make if the

11   excluded activity were religious worship. Id. at 112 n.4.

12          We do not mean to imply that we think the Supreme Court somehow indicated in Good

13   News Club that it would rule as we do on the exclusion of worship services. Our point is only

14   that the Supreme Court has neither ruled on the question, nor even given any reliable indication

15   of how it would rule.

16          3) Judge Walker argues that we err to the extent that we rely on the heavy predominance

17   of the use of schools for Christian worship services (as opposed to services of other religions)

18   because of the greater availability of the schools on the Christian day of worship. He argues that

19   the greater availability of schools for use by Christian organizations is of no constitutional

20   concern, because “[a]n Establishment Clause violation does not result from either private choice

21   or happenstance.” Dissenting Op. 24.

22          The greater availability of schools for use on the Christian day of worship is certainly not

23   “happenstance.” From the first, schools throughout the United States were closed on Sundays

                                                       34
 1   precisely because Sunday is the Christian day of worship – the day when schoolchildren were

 2   expected to attend church services with their parents. The tradition of closing schools, post

 3   offices, courts, and other government buildings on Sunday is no more happenstance than the fact

 4   that, until recently, many state laws required businesses to close on Sundays. See Alan Raucher,

 5   Sunday Business and the Decline of Sunday Closing Laws: A Historical Overview, 36 J. Church

 6   and State 13 (1994). That choice has origins in the government’s solicitude for Christianity, in

 7   what was once widely viewed as “a Christian nation.” Holy Trinity Church v. United States, 143

 8   U.S. 457, 471 (1892).

 9                                                    *   *    *

10          In rejecting a multitude of Judge Walker’s arguments, we do not imply that his

11   conclusion (as to the constitutional invalidity of the religious worship services branch of SOP

12   § 5.11) is frivolous or even necessarily wrong. The Supreme Court’s rulings have laid down no

13   principles that compel a decision one way or the other on these facts. Nor has the Supreme

14   Court given any reliable indication of how it will rule if and when it confronts these facts. As

15   Judge Calabresi and I view the facts, the use of New York City public schools for religious

16   worship services – with a heavy predominance of Christian worship services because school

17   buildings are most available for non-school use on Sundays – would create a very substantial

18   appearance of governmental endorsement of religion and give the Board a strong basis to fear

19   that permitting such use would violate the Establishment Clause. Because the “religious worship

20   services” clause of SOP § 5.11 is a content restriction that excludes only a type of activity, does

21   so for a reason that is either constitutionally mandated or at least constitutionally reasonable, and

22   does not otherwise curtail free expression of religious viewpoints, we conclude that the

23   restriction does not violate the Constitution.

                                                          35
1                                        CONCLUSION

2         For the foregoing reasons, the judgment of the district court is REVERSED, and the

3   injunction barring enforcement of SOP § 5.11 against Bronx Household is VACATED.




                                                36
 1   CALABRESI, Circuit Judge, concurring:

2           I join Judge Leval’s opinion in full because it states a correct alternative ground

3    upon which to decide this case. But I write separately to emphasize that I continue to

 4   adhere to the position I took in my earlier opinion in this case, that worship is sui generis.

5    See Bronx Household III, 492 F.3d at 100 (Calabresi, J., concurring). And I especially

6    wish to reaffirm my view there stated:

 7          A holding that worship is only an agglomeration of rites would be a
 8          judicial finding on the nature of worship that would not only be grievously
 9          wrong, but also deeply insulting to persons of faith.
10
11   Id. at 103. Worship is something entirely different. See id.; see also Bronx Household I,

12   127 F.3d at 221 (Cabranes, J., concurring in part and dissenting in part) (“Unlike

13   religious ‘instruction,’ there is no real secular analogue to religious ‘services,’ such that a

14   ban on religious services might pose a substantial threat of viewpoint discrimination

15   between religion and secularism.”). State rules excluding all “worship” from a limited

16   public forum, therefore, are based on content, not viewpoint.

17          In the context of the rule before us, there is one particular problem: the rule seems

18   to prohibit religious worship. See SOP § 5.11 (“No permit shall be granted for the

19   purpose of holding religious worship services . . . .”). And if it be the case that non-

20   religious worship also exists, then the prohibition of religious worship would be

21   viewpoint discrimination, and most likely unconstitutional. The question of whether

22   there is a category of nonreligious worship, or whether worship is inherently religious

23   and thus “religious worship” is redundant, is interesting and difficult, but we do not need

24   to decide it in this case. The majority opinion does not need to decide the issue because it

25   concludes that there is no such thing as a non-religious worship service. Maj. Op. at [15-




                                                    1
 1   16]. I also need not decide the issue because the rule before us prohibits “using a school

 2   as a house of worship,” as well as the holding of “religious worship services.” SOP §

 3   5.11. No one questions that what Appellees seek to do in the instant case is to use the

 4   school as a house of worship. And since both religious worship and nonreligious worship

 5   (if there be any) are subject to the clause barring use of a school as “a house of worship,”

 6   the prohibition here is content- and not viewpoint-based.

 7          We also do not need to be concerned with whether in some other case it might be

 8   hard to say whether what the Appellees wish to do is to use the school as “a house of

 9   worship.” Nor need we worry that, in attempting to answer that question, we (or the

10   Appellants) might become unconstitutionally “entangle[d] with religion,” Lemon v.

11   Kurtzman, 403 U.S. 602, 613 (1971). For Appellees admitted in their permit request, see

12   J.A. at 3586, and in their briefs before this court, see Appellees’ Br. at 1, that they seek to

13   use school facilities for “worship.” When a group tells the government that what it

14   wishes to do is “worship,” the government is entitled to take the group at its word. See

15   Bronx Household I, 127 F.3d at 221-22 (Cabranes, J., concurring in part and dissenting in

16   part) (“There may be cases in which the parties dispute whether or not a proposed activity

17   for which permission to use school premises is denied actually constitutes religious

18   instruction or worship . . . . However, this issue does not arise in the instant case, as the

19   parties have stipulated that plaintiff seeks to use a school gymnasium for ‘religious

20   worship services.’”). That is all the Appellants did when they enforced SOP § 5.11,1 and



     1
       Whatever the Appellants may have done in deciding whether to grant previous permit
     applications not governed by the revised SOP § 5.11 is not before us. Under SOP § 5.11,
     the Appellants denied the Appellees’ permit application four days after it was submitted,
     because it described the activities to be conducted on school premises as “Christian
     worship services.” See J.A. at 3586, 3588. It also does not matter that the permit


                                                    2
1   it is all a court needs to do here. This case does not, therefore, present an appropriate

2   occasion for deciding how to resolve a dispute over whether something actually is

3   “worship.”




    application included the words “as we have done in the past,” J.A. at 3586, or that it
    might have been worded explicitly to include, in addition to worship, other activities that,
    if conducted separately from worship, could not constitutionally be excluded from the
    limited public forum. Once an applicant says that what it wishes to do is “worship,” no
    inquiry into whether the underlying or accompanying activities actually constitute
    worship is required.


                                                  3
 1   JOHN M. WALKER, JR., Circuit Judge, dissenting:

 2        The Board’s Standard Operating Procedure (“SOP”) § 5.11

 3   withholds otherwise broadly available school-use permits from

 4   religious groups seeking to use school facilities during non-

 5   school hours “for the purpose of holding religious worship

 6   services, or otherwise using a school as a house of worship.”

 7   Without addressing the “house of worship” ban, the majority

 8   concludes that the ban on “religious worship services” does not

 9   offend the First Amendment’s Free Speech Clause because it is a

10   neutral, content-based restriction that is reasonably implemented

11   to avoid an Establishment Clause violation.   I disagree: SOP

12   § 5.11 is impermissible viewpoint discrimination against

13   protected speech and is unsupported by a compelling state

14   interest.   In this case, Bronx Household’s worship services fit

15   easily within the purposes of the Board’s broadly available forum

16   and may not be the object of discrimination based upon the

17   religious viewpoint expressed by the services’ participants.    The

18   Board’s purported Establishment Clause concerns are

19   insubstantial: they are not reasonable, much less a compelling

20   reason for the Board to shut the door on Bronx Household’s

21   protected speech.

22                               * * * * * *

23        When this panel split in 2007, Judge Calabresi indicated

24   that he would uphold SOP § 5.11 as a reasonable content-based


                                     -1-
 1   restriction on the unique subject of “worship,” Judge Leval

 2   expressed no opinion on the merits of the case due to ripeness

 3   concerns, and I indicated that I would strike down the

 4   application of SOP § 5.11 as unconstitutional viewpoint

 5   discrimination.   See generally Bronx Household of Faith v. Bd. of

 6   Educ., 492 F.3d 89, 100-106 (Calabresi, J.), 110-123 (Leval, J.),

 7   and 123-32 (Walker, J.) (2d Cir. 2007).   At that time, I compared

 8   the purpose of Bronx Household’s proposed use of school property

 9   with the purposes for which the Board opened its limited forum to

10   the public under SOP § 5.6.2, and, after inquiring searchingly of

11   the government’s motives, concluded that the Board had engaged in

12   impermissible viewpoint discrimination by rejecting permit

13   applicants under SOP § 5.11.   Id. at 123-25.   In response to

14   Judge Calabresi’s willingness to uphold the Board’s prohibition

15   on religious worship, I countered that Judge Calabresi had not

16   engaged in any real analysis of the purpose of Bronx Household’s

17   proposed expressive activity in light of the purposes of the

18   forum and in comparison to the purposes of the activities the

19   Board had allowed, pointing out that he had erred by simply

20   comparing the speech already permitted on school premises with

21   “worship,” which he declared to be sui generis and thus readily

22   excludable from the forum.   See id. at 127-130; cf. Op. of J.

23   Calabresi at 1.

24        Now, in this latest iteration of what is effectively the


                                     -2-
 1   same facial challenge to the Board’s exclusions under SOP § 5.11,

 2   the majority opinion breaks with Judge Calabresi’s earlier

 3   analysis that “worship” is a separate category of speech that is

 4   readily excludable from the Board’s expansive community use

 5   policy, declining even to consider either the second part of SOP

 6   § 5.11 (which prohibits “using a school as a house of worship”)

 7   or whether “worship” may be lawfully excluded from the forum.

 8   Compare Maj. Op. at 11 & 11 n.6 (expressly avoiding a decision on

 9   “worship”), with Op. of J. Calabresi at 1-3 (readily excluding

10   “worship”).1   Rather, the majority adopts a position not argued

11   below or advanced by the Board by focusing solely on the Board’s

12   restriction against “religious worship services,” characterizing

13   SOP § 5.11 as merely the exclusion of “the conduct of an event or

14   activity that includes expression of a point of view,” Maj. Op.

15   at 13.   The majority does not disagree that Bronx Household’s

16   services fall squarely within the purposes of the limited public

17   forum; it holds, however, that SOP § 5.11's exclusion of services

18   is both viewpoint-neutral and justified by Establishment Clause

19   concerns.   Because I believe that neither conclusion is correct,

20   I would affirm the district court’s injunction.

21

          1
 1           While I disagree with Judge Calabresi’s analysis and
 2   conclusions, he at least recognizes that the two parts of SOP
 3   § 5.11 operate in tandem to effectively preclude worship and the
 4   practice of religion from school premises during non-school
 5   hours.

                                     -3-
 1   I.   SOP § 5.11's Ban on Religious Worship Services Constitutes
 2        Viewpoint Discrimination
 3
 4        As the majority recognizes, the Board has created a limited

 5   public forum by opening its schools for “uses pertaining to the

 6   welfare of the community.”   SOP § 5.6.2.   When the state creates

 7   such a forum, it “is not required to and does not allow persons

 8   to engage in every type of speech.”     Good News Club v. Milford

 9   Cent. Sch., 533 U.S. 98, 106 (2001).     The government may, for

10   example, reserve the limited public forum “for the discussion of

11   certain topics.”   Id. (quoting Rosenberger v. Rector & Visitors

12   of the Univ. of Va., 515 U.S. 819, 829 (1995)).     Any restrictions

13   on speech in a limited public forum must, however, be both

14   viewpoint neutral and “reasonable in light of the purpose served

15   by the forum.”   Cornelius v. NAACP Legal Defense & Educ. Fund,

16   Inc., 473 U.S. 788, 806 (1985).    SOP § 5.11 is neither.

17        Here, the Board opened its schools to the public for

18   purposes of “maximiz[ing] educational, cultural, artistic and

19   recreational opportunities for children and parents,” Cahill.

20   Decl. ¶ 13, “assist[ing] in . . . development generally,” id.,

21   “expand[ing] enrichment opportunities for children,” Farina Decl.

22   ¶ 9, and “enhanc[ing] community support for the schools,” id.

23   The parties agree, and the majority does not contest, that Bronx

24   Household’s intended use of P.S. 15 for “Christian worship

25   services”—which include prayer, the reading and singing of

26   psalms, Bible lessons, personal testimony, communion, preaching,

                                       -4-
 1   fellowship, and conversation—falls within the purposes of the

 2   forum.   See, e.g., Transcript of Oral Argument, 10/6/2009

 3   (“Tr.”), at 10:7-8, 21:20-21, & 22:20-22 (each statement

 4   conceding that Bronx Household’s intended use advances the

 5   forum’s purposes).   The majority nevertheless finds that the

 6   restriction on religious services is content discrimination that

 7   is reasonable in light of the purposes of the limited public

 8   forum.   I disagree and conclude that the Board’s discrimination

 9   against Bronx Household is based on its religious viewpoint.

10        The Supreme Court has consistently held that the exclusion

11   of private speakers from open fora or limited public fora on the

12   basis of their religious message constitutes viewpoint

13   discrimination.   In Widmar v. Vincent, for example, the Supreme

14   Court reaffirmed that “religious worship and discussion” are

15   “forms of speech and association protected by the First

16   Amendment.”   454 U.S. 263, 269 (1981).   On this basis, the Court

17   rejected a university’s attempt to prevent a student organization

18   from using an open forum to hold meetings, similar to those at

19   issue here, that included “prayer, hymns, Bible commentary, and

20   discussion of religious views and experiences.”    Id. at 265 n.2.

21   Significantly, the Court rejected a distinction between protected

22   religious speech and “a new class of religious speech act[s]

23   constituting worship.” Id. at 269 n.6 (alteration in original)

24   (citation and internal quotation marks omitted).   The Court


                                     -5-
 1   explained that this proposed distinction lacked “intelligible

 2   content” and would not “lie within the judicial competence to

 3   administer.”   Id.

 4        The Supreme Court first addressed private religious speech

 5   in a limited public forum in Lamb’s Chapel v. Center Moriches

 6   Union Free School District, 508 U.S. 384 (1993).    There, a church

 7   sought to use a school’s limited public forum, after hours, to

 8   show a six-part film series that dealt with “family and child-

 9   rearing issues” from a Christian perspective.    Id. at 387-89.

10   The Court found that the school district had engaged in viewpoint

11   discrimination by “permit[ting] school property to be used for

12   the presentation of all views about family issues and child

13   rearing except those dealing with the subject matter from a

14   religious standpoint.”   Id. at 393.   Similarly, in Rosenberger v.

15   Rector & Visitors of the University of Virginia, the Court

16   rejected the University of Virginia’s refusal to fund a student

17   newspaper on the basis that the newspaper “primarily promote[d]

18   or manifest[ed] a particular belie[f] in or about a deity or an

19   ultimate reality.”   515 U.S. 819, 823 (1995).   The Court

20   explained that viewpoint discrimination is a subset of content

21   discrimination and that while it is “something of an

22   understatement to speak of religious thought and discussion as

23   just a viewpoint, as distinct from a comprehensive body of

24   thought,” religion nevertheless “provides . . . a specific


                                     -6-
 1   premise, a perspective, a standpoint from which a variety of

 2   subjects may be discussed and considered.”   Id. at 830-31.     For

 3   that reason, the University’s refusal to fund a student

 4   publication because of its Christian perspective, while

 5   continuing to fund publications with other (secular)

 6   perspectives, was impermissible viewpoint discrimination.      Id. at

 7   831-32.

 8        More recently, in Good News Club v. Milford Central School,

 9   533 U.S. 98 (2001), the Supreme Court applied its holdings in

10   Lamb’s Chapel and Rosenberger to activities that could be labeled

11   “worship.”    Milford had created a limited public forum that, like

12   SOP § 5.6.2 here, opened its school for purposes “pertaining to

13   the welfare of the community.”   Good News Club, 533 U.S. at 102.

14   The Good News Club, a private Christian organization, sought to

15   use this forum for weekly meetings, at which participants would

16   “sing[] songs, hear[] a Bible lesson and memoriz[e] scripture.”

17   533 U.S. at 103.   In finding Milford’s exclusion of these

18   meetings unconstitutional, the Court explained that “something

19   that is ‘quintessentially religious’ or ‘decidedly religious in

20   nature’ can[] also be characterized properly as the teaching of

21   morals and character development from a particular viewpoint.”

22   Id. at 111.    While declining to challenge Justice Souter’s

23   characterization of the Club’s activities as “an evangelical

24   service of worship,” the Court wrote that “what matters is the


                                      -7-
 1   substance of the Club’s activities,” which the Court found to be

 2   “materially indistinguishable from the activities in Lamb’s

 3   Chapel and Rosenberger.”   Id. at 112 n.4.   Because non-religious

 4   groups were permitted to teach morals and character development

 5   from a secular viewpoint, excluding the Good News Club’s efforts

 6   to do the same from a religion viewpoint was impermissible.

 7        The majority argues in this case that the Board has not

 8   discriminated on the basis of viewpoint and tries to distinguish

 9   these prior Supreme Court decisions by focusing narrowly on the

10   Board’s exclusion of “religious worship services.”    The Board,

11   however, has not differentiated these services from religious

12   worship or the practice of religion.   Indeed, how could it do so?

13   Nor has the Board offered a definition of religious worship

14   services.   Rather, the majority offers its own self-styled

15   definition of “religious worship services,” without reference to

16   the record or briefs, as “the conduct of a particular type of

17   event:   a collective activity characteristically done according

18   to an order prescribed by and under the auspices of an organized

19   religion, typically but not necessarily conducted by an ordained

20   official of the religion,” the conduct of which “has the effect

21   of placing centrally, and perhaps even of establishing, the

22   religion in the school.”   Maj. Op. at 12.   The majority’s

23   formulation of “religious worship services,” including its shoe-

24   horning of a supposed Establishment Clause problem, is


                                     -8-
 1   conveniently tailored to support its arguments, but leaves no

 2   doubt that it is “religious services” and “worship” that the

 3   Board is targeting for exclusion.     The Board is otherwise

 4   unconcerned with comparable ceremonial speech occurring on school

 5   premises.2   The majority’s definition, it bears noting, leads to

 6   anomalous results: while a Catholic or Episcopal service would be

 7   shut out of the forum, a Quaker meeting service, Buddhist

 8   meditation service, or other religions worship convocation could

 9   be allowed because it would not follow a “prescribed order” or

10   because the leader is not “ordained.”    Ultimately, the majority’s

11   definition also obscures the central issue, barely discussed in

12   the majority opinion, of whether Bronx Household is engaging in

13   speech that fulfills the purposes of the forum and is consistent

14   with non-religious speech occurring on school premises.

15        The core of the majority’s argument is that by prohibiting

16   “religious worship services,” the Board has only prohibited “the


          2
 1           Indeed, the majority’s attempt to differentiate between
 2   the “conduct of services,” which it defines as “the performance
 3   of an event or activity,” Maj. Op. at 11, and the conduct of
 4   “religious worship services” as two distinct categories of
 5   activity relies explicitly on the religious nature of the latter
 6   activity. Whereas a Boy Scouts merit badge service constitutes
 7   “a collective activity characteristically done according to an
 8   order prescribed by and under the auspices of an organized [civic
 9   group]” and is “typically . . . conducted by an . . . official of
10   the [group],” Maj. Op. at 12, Bronx Household’s weekly “event or
11   activity” is barred solely because it is performed under the
12   auspices of an organized religion and conducted by an ordained
13   official of the religion. Thus, these purportedly distinguishing
14   criteria squarely depend on the fact that religion is the
15   underlying motivation for the expressive activity.

                                     -9-
 1   conduct of an event or activity that includes expression of a

 2   point of view,” rather than “excluding the expression of that

 3   point of view.”   Maj Op. at 12.    The majority’s attempt to

 4   differentiate between the conduct of an event, here labeled

 5   “services,” and the protected viewpoints expressed during the

 6   event is futile because the conduct of “services” is the

 7   protected expressive activity of the sort recognized in Good News

 8   Club and, earlier, in Widmar.      The majority turns its back on the

 9   Supreme Court’s holding in Good News Club that it is viewpoint

10   discrimination for a school to exclude what is effectively “an

11   evangelical service of worship” from a limited public forum that

12   in every material respect is identical to the forum that the

13   Board established in this case.     Compare Good News Club, 533 U.S.

14   at 112 n.4, with id. at 137-38 (Souter, J., dissenting).        The

15   Board cannot lawfully exclude the conduct of an event based

16   solely on the religious viewpoints expressed during the event.

17        Indeed, in rejecting the claim that religious worship is not

18   protected speech in Widmar, Justice Powell explained that a

19   carve-out of worship from protected religious speech does not

20   have intelligible content and likely would not “lie within the

21   judicial competence to administer.”     454 U.S. at 269 n.6.    The

22   carve-out, Justice Powell wrote, also lacks “relevance” because

23   there is “no reason why the Establishment Clause, or any other

24   provision of the Constitution, would require different treatment


                                     -10-
 1   for religious speech designed to win religious converts than for

 2   religious worship by persons already converted.”    Id. (citation

 3   omitted).

 4        Fixing upon the label “services” for the program of worship

 5   at issue here as a carve-out from protected speech–as opposed to

 6   other characterizations such as “meeting,” “gathering,” “prayer

 7   group,” or “time of worship”–does nothing to resolve the

 8   underlying carve-out problems identified by Justice Powell in

 9   Widmar.     The same concerns–lack of intelligible content, judicial

10   manageability, and relevance–persist.    While the majority tries

11   to address these concerns through its own definition of services,

12   the concerns raised in Widmar adhere in the application of the

13   majority’s definition.    It is as difficult for a court to

14   ascertain when it is dealing with “services” as with “worship”

15   generally and to manage any such distinction.    And ultimately,

16   any distinction between “services” and protected religious speech

17   is irrelevant because, regardless of labels, “what matters is the

18   substance of the [group’s] activities.”    Good News Club, 533 U.S.

19   at 112 n.4.

20        Moreover, that SOP § 5.11 exclusively targets religious

21   viewpoints is evident from the fact that, as in Good News Club,

22   only “religious” services are shut out of the forum.    No similar

23   restriction is placed on secular gatherings that are materially

24   indistinguishable from Bronx Household’s use of P.S. 15.      While


                                      -11-
 1   the Board denies Bronx Household a space to celebrate its ideals,

 2   it permits other outside organizations, such as the Legionnaire

 3   Greys Program and the Boy Scouts, to meet on school premises to

 4   further their secular ideals of “military leadership,” or

 5   “character building, citizenship, and personal and physical

 6   fitness.”   The Board permits these secular uses despite the fact

 7   that these groups also meet according to a prescribed order of

 8   conduct that they consider integral to the accomplishment of

 9   their goals.   See, e.g., 1st Aff. of David Laguer, at ¶¶ 3, 4, &

10   6 (describing Legionnaire Greys Program meetings as “structured

11   and ordered,” each consisting of, inter alia, a ceremonial flag

12   presentation, trumpets playing the national anthem, flag salutes,

13   unit lessons, leadership training, and character building); Aff.

14   of Jeffrey G. Fanara, at ¶¶ 5, 6, & 8 (describing Boy Scout troop

15   meetings as consisting of a “pre-opening, a half-hour gathering

16   period, . . . a formal opening ceremony . . . with a flag

17   ceremony and [ ] a recitation of the Pledge of Allegiance and the

18   Scout Oath or Law,” and a “closing ceremony” that “includes a

19   motivational message . . . based on Scouting’s values”).    There

20   can be little doubt that the Board would similarly allow the use

21   of its facilities by fraternal organizations, such as the Elks or

22   the Freemasons, with comparable missions and ceremonies.

23        Just as each of these groups meets to address and discuss

24   universal concerns while advancing its organizational mission, so


                                    -12-
 1   too does Bronx Household’s “Sunday morning meeting [act as] the

 2   indispensable integration point for [the group].    It provides the

 3   theological framework to engage in activities that benefit the

 4   welfare of the community.”    First Aff. of Robert Hall (“1st Hall

 5   Aff.”), at ¶ 7.   Further, it is during Bronx Household’s

 6   gatherings that participants are taught “to love their neighbors

 7   as themselves, to defend the weak and disenfranchised, and to

 8   help the poor regardless of their particular beliefs.    It is a

 9   venue where people . . . come to talk about their particular

10   problems and needs.”3   Id.   Plainly, there can be no claim that

11   Bronx Household’s gatherings fail to address subjects that are

12   otherwise permitted in the forum or that they differ from secular

13   groups’ meetings in any way other than their invocation of

14   religious doctrine.4


          3
 1           For this reason, the majority errs by distinguishing Good
 2   News Club on the basis of the Supreme Court’s statement that the
 3   Club meetings in that case did not involve “mere religious
 4   worship.” 533 U.S. at 112 n.4; see Maj. Op. at 25, 38. The
 5   majority, however, omits a critical modifier: the Court made
 6   clear that it did not consider the Club’s activities to be “mere
 7   religious worship, divorced from any teaching of moral values.”
 8   Id. (emphasis added). The same is true here: Bronx Household’s
 9   worship services cannot be divorced from the teaching of moral
10   values that are part and parcel of those services, which include
11   Bible lessons and instruction. Indeed, how can the majority’s
12   conception of religious worship services ever be divorced from
13   promoting moral values?
          4
 1           While this case was argued under the First Amendment’s
 2   Free Speech and Establishment Clauses, the Board’s action also
 3   raises Free Exercise Clause concerns. “At a minimum, the
 4   protections of the Free Exercise Clause pertain if the law at
 5   issue discriminates against some or all religious beliefs or

                                      -13-
 1

 2        The majority also relies on a number of hypothetical

 3   activities to argue that the Board could deny a permit

 4   application in order to avoid “either harm to persons or

 5   property, or liability, or a mess, which those activities may

 6   produce.”   Maj. Op. at 13.   Irrespective of the Board’s power to

 7   deny permits for such hypothetical uses out of a concern for

 8   safety, sanitation, and non-interference with other uses of the

 9   schools, see Capitol Square Review & Adv. Bd. v. Pinette, 515

10   U.S. 753, 758 (1995), none of these concerns has ever been

11   present in this case.   Strikingly, while quick to proffer these

12   hypothetical uses, the majority never comes to grips with the

13   significant fact that the Board allows most outside organizations



 1   regulates or prohibits conduct because it is undertaken for
 2   religious reasons.” Church of the Lukumi Babalu Aye, Inc. v.
 3   City of Hialeah, 508 U.S. 520, 532 (1993); see also Employment
 4   Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 877
 5   (1990). Thus, “if the object of a law is to infringe upon or
 6   restrict practices because of their religious motivation, the law
 7   is not neutral; and it is invalid unless it is justified by a
 8   compelling interest and is narrowly tailored to advance that
 9   interest.” Church of the Lukumi Babalu Aye, 508 U.S. at 533
10   (internal citation omitted). Given the plain language of SOP
11   § 5.11, the Board’s persistent exclusion of outside organizations
12   seeking to use school facilities for religious purposes, and the
13   Board’s repeated statements that SOP § 5.11 is aimed at the
14   practice of religion, it is undisputable that SOP § 5.11 is not
15   neutral. See Smith, 494 U.S. at 877-78. Because SOP § 5.11
16   specifically burdens religious practices, it must advance a
17   compelling government interest to pass constitutional muster.
18   See id. at 894-95 (O’Connor, J., concurring). Such a compelling
19   interest is absent in this case for the reasons stated in Part
20   II.

                                     -14-
 1   to access its facilities for uses that “pertain[ ] to the welfare

 2   of the community” and “promot[e] [children’s] development

 3   generally,” so long, of course, as those organizations’

 4   activities do not amount to religious worship services or

 5   transform the school into a “house of worship.”    Despite the

 6   majority’s arguments to the contrary, it is readily apparent that

 7   the Board singles out religious worship for disfavored treatment.

 8   The majority’s argument that SOP § 5.11 is nothing more than a

 9   content-based restriction on a specific type of activity, albeit

10   a religious one, plainly fails.5

11        Finally, the majority argues that my finding of viewpoint

12   discrimination overlooks the Board’s Establishment Clause

13   rationale.   Maj. Op. at 33-37.    As an initial matter, I disagree

14   that the Board’s Establishment Clause concerns are reasonable,

15   for the reasons discussed in Part II.    Nevertheless, even if the

16   Board were to have legitimate Establishment Clause concerns,



          5
 1           The Board’s separate reliance on Faith Center Church
 2   Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007),
 3   to argue that SOP § 5.11 is content, not viewpoint,
 4   discrimination is misplaced. In Faith Center, the Ninth Circuit
 5   concluded that Contra Costa County’s exclusion of a religious
 6   congregation from its library meeting space was content, not
 7   viewpoint, discrimination because the congregation’s intended use
 8   of the space during normal operating hours for “Praise and
 9   Worship” services was incompatible with (a) the purpose for which
10   the meeting room forum had been created, and (b) the “library’s
11   primary function as a sanctuary for reading, writing, and quiet
12   contemplation . . . available to the whole community.” Id. at
13   902, 909-11. No such incompatibility in either purpose or
14   facility is present here.

                                       -15-
 1   those concerns could do nothing to undermine my conclusion that

 2   the Board engaged in viewpoint discrimination; at most, they

 3   could only serve as a potential justification for such

 4   discrimination.

 5         Thus, whether the Board’s actions under SOP § 5.11 are

 6   properly characterized as the exclusion of worship, the exclusion

 7   of “religious worship services,” or the exclusion of “the conduct

 8   of an event or activity that includes expression of a [religious]

 9   point of view,” Maj. Op. at 13, the Board has discriminated

10   against Bronx Household on the basis of religious viewpoint.    The

11   group’s proposed use of P.S. 15 fits plainly within the purpose

12   of the limited public forum created under SOP § 5.6.2; is not

13   incompatible with any time, place, and manner restrictions

14   imposed by the Board; and has been denied solely because Bronx

15   Household wishes to address otherwise permissible subjects from a

16   religious viewpoint through its conduct of religious “worship

17   services.”

18

19   II.   Bronx Household’s Intended Use of P.S. 15 Raises No
20         Legitimate Establishment Clause Concerns
21
22         After concluding that SOP § 5.11 is content discrimination,

23   the majority next considers the reasonableness of SOP § 5.11.

24   However, it does so not in light of the forum’s stated purposes,

25   but rather in light of the Board’s stated concern that allowing

26   the conduct of “religious worship services” in schools would give

                                    -16-
 1   rise to a sufficient appearance of endorsement to constitute a

 2   violation of the Establishment Clause.     See Maj. Op. at 19.

 3   Unlike my colleagues in the majority and the Board, I am not

 4   prepared to shut out constitutionally-protected speech from a

 5   neutral forum on the sole basis that it is “quintessentially

 6   religious.”   Good News Club, 533 U.S. at 111.    I would hold that

 7   the actions of Bronx Household, a private party, cannot transform

 8   the government’s neutral action into an Establishment Clause

 9   violation.    The Board’s fear of being perceived as establishing a

10   religion is therefore not reasonable, if the exclusion is viewed

11   (erroneously) as content discrimination, much less sufficiently

12   compelling to justify the viewpoint discrimination that I believe

13   is occurring.

14        Just like the defendants in Widmar, the Board and the

15   majority “misconceive[] the nature of the case.”    454 U.S. at 273.

16   The Board has not created a forum open only to religious speech.

17   Rather, “it has opened its facilities for use by [the community],

18   and the question is whether it can now exclude groups because of

19   the content of their speech.”   Id.    In fact, the Supreme Court has

20   “[m]ore than once . . . rejected the position that the

21   Establishment Clause even justifies, much less requires, a refusal

22   to extend free speech rights to religious speakers who participate

23   in broad-reaching government programs neutral in design.”

24   Rosenberger, 515 U.S. at 839 (citing Lamb’s Chapel, 508 U.S. at


                                     -17-
 1   393-94; Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v. Mergens,

 2   496 U.S. 226, 248, 252 (1990)).    Because the Establishment Clause

 3   looks only to the government’s role, if any, in establishing

 4   religion and not the private speaker’s choice in exercising his

 5   free speech rights, I reach the opposite conclusion from the

 6   majority as to whether a reasonable person would perceive the

 7   Board’s grant of the neutral-forum permit sought here to be an

 8   endorsement of religion.

 9        The Board and the majority invoke Lemon v. Kurtzman, 403 U.S.

10   602 (1971), to demonstrate that SOP § 5.11 is reasonable, but they

11   misapply the Lemon test, thereby reaching several conclusions that

12   directly contradict controlling Supreme Court precedent.    In

13   particular, the majority offers five bases for concluding that SOP

14   § 5.11 is reasonably based on the Board’s supposed concern that

15   granting Bronx Household a permit for “Christian worship services”

16   might have the “principal or primary effect” of endorsing

17   religion, see id. at 612, thereby violating the Establishment

18   Clause.6   The battle that the majority and the Board wish to


          6
 1           The five bases the majority cites are as follows: (1)
 2   after-hours use of school premises for “religious worship
 3   services” transforms the school into a church because “[t]he
 4   church has made the school the place for the performance of its
 5   rites,” Maj. Op. at 20; (2) the Board might reasonably fear that
 6   allowing access for “religious worship services” results in the
 7   Board’s substantial subsidization of religion, Maj. Op. at 21;
 8   (3) granting access for “religious worship services” might
 9   permanently convert a school on Sundays into a state-subsidized
10   church “by reason of public perception of endorsement” that “is
11   made particularly acute by the fact that P.S. 15 and other

                                       -18-
 1   fight, however, has already been lost.   The Supreme Court has

 2   rejected Establishment Clause concerns, including those raised by

 3   the majority, in this context because they are premised on the

 4   mistaken belief that permitting religious groups to use school

 5   facilities for religious purposes on a non-school day in a neutral

 6   forum creates a realistic danger that the public will perceive the

 7   Board as endorsing religion.

 8        The relevant question to be asked is not whether any person

 9   might mistakenly perceive the Board as conveying a message of

10   endorsement or disapproval; rather, the endorsement test asks

11   whether “an objective observer, acquainted with the text,

12   legislative history, and implementation of the [challenged law or

13   policy], would perceive it as a state endorsement of [organized

14   religion] in public schools.”   Santa Fe Indep. Sch. Dist. v. Doe,

15   530 U.S. 290, 308 (2000) (emphasis added) (quoting Wallace v.

16   Jaffree, 472 U.S. 38, 73, 76 (1985) (O’Connor, J., concurring)).

17   Thus, the majority confuses its analysis when it emphasizes the

18   private speaker’s conduct, rather than the government’s role, in

19   establishing religion.   The fact that a community member might



 1   schools used by churches are attended by young and impressionable
 2   students,” Maj. Op. at 22-23; (4) increased availability of
 3   Sunday permits would favor Christian groups over other
 4   denominations, see Maj. Op. at 23-24; and (5) deliberate
 5   exclusion of certain members of the general public, such as
 6   persons excommunicated from the church who advocate the Islamic
 7   religion, by a religious organization aggravates existing
 8   Establishment Clause concerns, see Maj. Op. at 24.

                                     -19-
 1   witness an outside organization using a school during non-school

 2   hours to further its religious cause does not in itself raise a

 3   legitimate concern that the government has acted in contravention

 4   of the Establishment Clause.   See Capitol Square, 515 U.S. at 767

 5   (Scalia, J., for the plurality) (“By its terms th[e]

 6   [Establishment] Clause applies only to the words and acts of

 7   government. It was never meant, and has never been read by this

 8   Court, to serve as an impediment to purely private religious

 9   speech connected to the State only through its occurrence in a

10   public forum.” (emphasis in original)).

11        For these reasons, the majority’s focus on the “religious

12   nature” of the speech, without regard to the nature of the

13   speaker, is misplaced.   The majority cites McCreary County v.

14   ACLU, 545 U.S. 844 (2005); County of Allegheny v. ACLU, 492 U.S.

15   573 (1992); and Lee v. Weisman, 505 U.S. 577 (1992), as

16   foundational to its Establish Clause analysis, and of course they

17   would be highly relevant to this case were we dealing with

18   religious speech by the government.    In McCreary and County of

19   Allegheny, the government’s placement of the Ten Commandments and

20   a nativity creche, respectively, in county courthouses violated

21   the Establishment Clause, as did the government in Lee v. Weisman

22   when a school official invited a rabbi to give an invocation and

23   benediction at a middle-school commencement exercise.   In the case

24   before us, however, the most the government has done is to open up


                                     -20-
 1   a neutral public forum limited by its laudable educational and

 2   community-building purposes.   Unlike in these three cited cases,

 3   it has neither promoted nor endorsed a religious message.

 4        Also, “a significant factor in upholding government programs

 5   in the face of Establishment Clause attack is their neutrality

 6   towards religion.”   Good News Club, 533 U.S. at 114 (quoting

 7   Rosenberger, 515 U.S. at 839).   Indeed, the Free Speech Clause’s

 8   requirement of viewpoint neutrality by the government in opening a

 9   forum tends to undermine, if not preclude, a finding of school

10   sponsorship in the Establishment Clause context.   See Good News

11   Club, 533 U.S. at 114 (“Because allowing the Club to speak on

12   school grounds would ensure neutrality, not threaten it, [the

13   school district] faces an uphill battle in arguing that the

14   Establishment Clause compels it to exclude the Good News Club.”).7

15   To an objective, fully informed observer, the fact that the forum

16   is open to a wide spectrum of participants bespeaks the state’s


          7
 1           Indeed, it bears noting that it was, at least in part,
 2   the Second Circuit’s previous approval of the Board’s rejection
 3   of Bronx Household’s permit application pursuant to an earlier
 4   formulation of the religious-use prohibition (“No outside
 5   organization or group may be allowed to conduct religious
 6   services or religious instruction on school premises after
 7   school.”) that prompted the Court to grant certiorari in Good
 8   News Club. See 533 U.S. at 105-106 (citing Bronx Household I as
 9   one of a number of circuit court cases contributing to a circuit
10   conflict “on the question whether speech can be excluded from a
11   limited public forum on the basis of the religious nature of the
12   speech”). It would not have been unreasonable for the Court to
13   have expected that its Good News Club decision would end this
14   case as well.

                                      -21-
 1   neutrality, not its favoring of religion or any other group.

 2        In any event, even if a private actor’s conduct could somehow

 3   transform a neutral forum into a state endorsement of religion,

 4   Bronx Household’s services would not do so here.   Just as in

 5   Lamb’s Chapel and Good News Club, Bronx Household’s use of P.S. 15

 6   takes place during non-school hours (actually on a day when there

 7   is no school), lacks school sponsorship, occurs in a forum

 8   otherwise available for a wide variety of uses, and is open to the

 9   public.   See 1st Hall Dep. at 30 (“Worship services are always

10   open to the public.”); 1st Hall Aff., ¶ 5 (“Our Sunday morning

11   meetings are open to all members of the public.    The meetings are

12   not closed to a limited group of people, such as church members

13   and their guests.”).8   And while the majority in this case cites

14   the “particularly acute” danger that young and impressionable

15   students will perceive the weekend use of their schools by

16   religious groups as the Board’s endorsement of religion or certain

17   religious denominations, see Maj. Op. at [23], the Supreme Court


          8
 1           While Bronx Household, in accordance with its religious
 2   tenets, limits communion to church members who have been
 3   baptized, all members of the public are free to attend its Sunday
 4   worship services and there is no evidence that Bronx Household
 5   has ever refused admission to anyone. The majority’s statement
 6   that Bronx Household “excludes. . . persons who have been
 7   excommunicated or who advocate the Islamic religion from full
 8   participation in its services,” Maj. Op. at 23, rests on Pastor
 9   Robert Hall’s answers to hypothetical questions posed to him by
10   the Board during his deposition that specifically addressed
11   church membership, not public attendance at Sunday worship
12   services. See 2nd Hall Dep. at 35-42.

                                     -22-
 1   rejected this same argument in Good News Club, where it was

 2   presented with facts less favorable to Good News Club than those

 3   the majority cites to here.   See, e.g., Good News Club, 533 U.S.

 4   at 117-18.   Specifically, the Good News Club’s activities took

 5   place directly after school and catered to children ages 6-12,

 6   id.; here, by contrast, Bronx Household’s services occur on

 7   Sundays, when the only children present at the school are those

 8   attending the services, presumably with their parents.

 9        The majority argues at some length that permitting weekly

10   worship services at P.S. 15 transforms the school into a church.

11   See, e.g., Maj. Op. at 20 (“When worship services are performed in

12   a place, . . . [t]he place has, at least for a time, become the

13   church.”).   The majority then equates permitting worship services

14   to “subsidizing churches” and “allowing schools to be converted

15   into churches.”   Maj. Op. at 21.    The “church” reference appears

16   no less than twelve times in the majority opinion.    Such an

17   argument–that somehow a neutral forum is physically (or perhaps

18   metaphysically) transformed into a non-neutral forum by the

19   private activity undertaken there–has the feel of rhetoric.     The

20   same claim could have been made in Widmar and Good News Club, in

21   which decidedly church-related activities were permitted to occur

22   on a regular basis.   Bronx Household’s services do not convert

23   P.S. 15 into a church any more than the Boy Scout’s meetings

24   convert it into a Boy Scout lodge.

                                     -23-
 1        The majority also errs in relying on the fact that some

 2   outside religious organizations may more easily obtain school-use

 3   permits because they worship on Sundays, not Fridays and

 4   Saturdays.   See Maj. Op. at 23-24.     An Establishment Clause

 5   violation does not result from either private choice or

 6   happenstance.   See Zelman v. Simmons-Harris, 536 U.S. 639, 652

 7   (2002); Good News Club, 533 U.S. at 119 n.9; Harris v. McRae, 448

 8   U.S. 297, 319 (1980) (“[I]t does not follow that a statute

 9   violates the Establishment Clause because it happens to coincide

10   or harmonize with the tenets of some or all religions.” (internal

11   quotation marks omitted)).   Moreover, that an increasing number of

12   Christian groups have sought Sunday-use permits under SOP § 5.6.2

13   does not equate to permit unavailability for other religious

14   groups.   Indeed, while the majority states that “Jews and Muslims

15   generally cannot use school facilities for their services because

16   the facilities are often unavailable on the days that their

17   religions principally prescribe for services,” Maj. Op. at 23-24,

18   the record is clear that Jewish and Muslim groups have been

19   granted weekend access to school premises across the city under

20   the community use policy.    See, e.g., J.A. at 88 (Friday permit

21   for Downtown Synagogue’s “religious services”); id. at 185

22   (Saturday permit for Downtown Synagogue’s “religious services”);

23   id. at 179 (Saturday permit for Hope of Israel’s “fellowship

24   meetings”); id. at 183 (Saturday permit for Khal Bais Yitzchok’s


                                      -24-
 1   “religious fellowship meetings”); id. at 229 (Saturday permit for

 2   Muslimmah of NA’s “religious services”).9   Finally, the majority’s

 3   reliance on County of Allegheny v. ACLU, 492 U.S. 573 (1989), and

 4   Lynch v. Donnelly, 465 U.S. 668 (1984), is misplaced because those

 5   cases “neither hold[ ] nor even remotely assume[ ] that the

 6   government’s neutral treatment of private religious expression can

 7   be unconstitutional.”   Capitol Square, 515 U.S. at 765 (Scalia,

 8   J., for the plurality).

 9        Supreme Court caselaw also refutes the Board’s argument that

10   granting Bronx Household Sunday access to P.S. 15 constitutes

11   direct aid to religion because it allows Bronx Household to bypass

12   the expensive New York City real estate market that might

13   otherwise preclude it from establishing a congregation.   Cf. Maj.

14   Op. at 21.   The Board’s argument runs afoul of Rosenberger:



          9
 1           The majority relies on the Board’s denial of one group’s
 2   request to hold Jewish services on Saturdays in a school
 3   generally used for Christian services on Sundays in support of
 4   its argument that permits are unavailable to Jewish and Muslim
 5   groups. See Maj. Op. at 24. While the Board implies that there
 6   is a lack of availability of Friday and Saturday permits for use
 7   of its 1,197 buildings, its own evidence demonstrates that
 8   approximately 750 buildings are available for after-school use on
 9   Fridays, that 400 buildings are available for Saturday use, and
10   that 900 buildings are available for Sunday use. See Appellant’s
11   Br. at 13-14. Thus, that some religious denominations use school
12   premises more often than others may simply indicate their lack of
13   other adequate meeting space in the community and not any
14   increased ability on their part to secure a permit. See 2nd Hall
15   Dep. at 105-06. That some religious groups utilize the extended
16   use policy more than others simply does not give rise to a
17   legitimate perception that the Board grants permits to particular
18   denominations to the exclusion of others.

                                     -25-
 1        It does not violate the Establishment Clause for a
 2        [school] to grant access to its facilities on a
 3        religion-neutral basis to a wide spectrum of student
 4        groups, including groups that use meeting rooms for
 5        sectarian activities, accompanied by some devotional
 6        exercises. . . . The government usually acts by
 7        spending money. Even the provision of a meeting room,
 8        as in Mergens and Widmar, involved governmental
 9        expenditure, if only in the form of electricity and
10        heating or cooling costs. The [analytical] error . . .
11        lies in focusing on the money that is undoubtedly
12        expended by the government, rather than on the nature of
13        the benefit received by the recipient. If the
14        expenditure of governmental funds is prohibited whenever
15        those funds pay for a service that is, pursuant to a
16        religion-neutral program, used by a group for sectarian
17        purposes, then Widmar, Mergens, and Lamb’s Chapel would
18        have to be overruled.

19   515 U.S. at 842-43 (emphasis added).   Even Justice Souter, who

20   dissented in Rosenberger, agreed that the government does not

21   provide impermissible direct aid to religion each time a non-

22   government speaker utilizes a limited public forum for private

23   religious speech.   See id. at 888 (Souter, J., dissenting).    Thus,

24   established Supreme Court precedent effectively forecloses the

25   argument that permitting Bronx Household access to P.S. 15 for the

26   purpose of engaging in private religious speech results in the

27   Board’s unlawful provision of direct aid to a religious group.

28        In sum, while the majority argues that allowing Bronx

29   Household weekly use of P.S. 15 for “religious worship services”

30   would force the Board to render direct aid to religion, convey a

31   message that the Board endorses religion over non-religion, and

32   exhibit a preference for certain religious denominations over

33   others, these arguments are without merit.   Rather, the neutrality

                                     -26-
 1   of the forum is preserved when religious speech, like non-

 2   religious speech, is allowed.   Accordingly, if Lemon v. Kurtzman

 3   is to apply,10 I would hold that the Board has failed to

 4   demonstrate that granting Bronx Household Sunday access to P.S. 15

 5   for worship services would have the principal or primary effect of

 6   advancing religion or otherwise conveying a message of

 7   endorsement.11   While I would require the Board to demonstrate some

 8   sort of government endorsement (an uphill task, to say the least,

 9   given the Free Speech Clause’s requirement of forum neutrality)

10   before allowing it to restrict the viewpoint advanced by private

11   religious speech that otherwise falls within the purposes of the



          10
 1           The Supreme Court recently noted that many of its
 2   Establishment Clause cases “have not applied the Lemon test,”
 3   while others “have applied it only after concluding that the
 4   challenged practice was invalid under a different Establishment
 5   Clause test.” Van Orden v. Perry, 545 U.S. 677, 686 (2005).
          11
 1           The majority cites Capitol Square for the proposition
 2   that a private religious group may so dominate a forum so as to
 3   convey a message of governmental approval. See Maj. Op. at 21.
 4   While Bronx Household’s four-hour use of P.S. 15 on Sundays
 5   hardly dominates the limited public forum the Board has created
 6   under SOP § 5.6.2, any concern over a given group’s prolonged or
 7   dominant use of the forum can be addressed through reasonable
 8   time, place, and manner restrictions. For example, in order to
 9   ensure greater weekend availability of a particular school’s
10   facilities to more outside organizations, the Board could limit
11   the number of times per year that any one outside organization
12   may use school facilities. Likewise, the Board may revoke any
13   organization’s permit if it fails to adhere to neutral rules
14   imposed by the Board, i.e., by failing to include the Board’s
15   sponsorship disclaimer in written materials or by actively
16   creating an impression of school sponsorship. The majority’s
17   reliance on Pleasant Grove City, see Maj. Op. at 20, is similarly
18   misplaced.

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 1   forum, the lack of a basis in law for the Board’s establishment

 2   concerns undermines any holding that SOP § 5.11 is reasonable,

 3   even under the majority’s flawed analysis that SOP § 5.11 is mere

 4   content discrimination, much less a compelling justification for

 5   the Board’s viewpoint discrimination.

 6                              * * * * * *

 7        I have no doubt that this case stirs deep feelings and

 8   carries implications far broader than the Board’s exclusion of

 9   Bronx Household’s “Christian worship services” under SOP § 5.11.

10   This case also presents important doctrinal considerations worthy

11   of the Supreme Court’s attention.   In the meantime, however, as a

12   result of the majority’s decision that “religious worship

13   services” can be barred from the neutral limited public forum the

14   Board created under SOP § 5.6.2, numerous religious groups that

15   provide recognized benefits to the people and their communities,

16   consistent with the forum’s purposes, will be denied access to

17   otherwise available school space simply because their private

18   speech is intertwined with their standard devotional practices and

19   deeply-held religious beliefs.   Others will be chilled.   Because

20   SOP § 5.11's ban on religious worship services violates the Free

21   Speech Clause, I respectfully dissent.




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