     06-0725
     Bronx Household of Faith v. Bd. of Educ.

 1                     UNITED STATES COURT OF APPEALS
 2                         FOR THE SECOND CIRCUIT
 3
 4                            August Term 2006
 5    (Argued: September 28, 2006              Decided: July 2, 2007)
 6                         Docket No. 06-0725-cv
 7   -----------------------------------------------------x
 8   THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL, AND JACK
 9   ROBERTS,
10
11             Plaintiffs-Appellees,
12
13                        -- v. --
14
15   BOARD OF EDUCATION OF THE CITY OF NEW YORK and
16   COMMUNITY SCHOOL DISTRICT NO. 10,
17
18             Defendants-Appellants.
19
20   -----------------------------------------------------x
21
22   B e f o r e :   WALKER, LEVAL, and CALABRESI, Circuit Judges.

23        Appeal from denial of summary judgment in favor of, and

24   entry of permanent injunction against, Defendants-Appellants.

25        VACATED and REMANDED.

26                                   DAVID A. CORTMAN, Alliance Defense
27                                   Fund, Lawrenceville, GA (Jordan W.
28                                   Lorence, Benjamin W. Bull, and
29                                   Joseph P. Infranco, Alliance
30                                   Defense Fund, Scottsdale, AZ, on
31                                   the brief), for Plaintiffs-
32                                   Appellees.
33
34                                   JANE L. GORDON, Senior Counsel,
35                                   Corporation Counsel of the City of
36                                   New York (Michael A. Cardozo,
37                                   Corporation Counsel, Edward F.X.
38                                   Hart, Lisa Grumet, and Janice Casey
39                                   Silverberg, on the brief), New York
40                                   NY, for Defendants-Appellants.
41

                                     -1-
 1                                  DAVID WHITE, Attorney, United
 2                                  States Department of Justice, Civil
 3                                  Rights Division, Appellate Section
 4                                  (Wan J. Kim, Assistant Attorney
 5                                  General, Dennis J. Dimsey and Eric
 6                                  W. Treene, Attorneys, Washington,
 7                                  D.C., Michael J. Garcia, United
 8                                  States Attorney for the Southern
 9                                  District of New York, David J.
10                                  Kennedy and Andrew W. Schilling,
11                                  Assistant United States Attorneys,
12                                  New York, NY, on the brief),
13                                  Washington, D.C., for Amicus Curiae
14                                  United States of America.
15
16                                  MITCHELL A. KARLAN (Aric H. Wu,
17                                  Marci R. Etter, and Farrah L.
18                                  Pepper, Gibson, Dunn & Crutcher,
19                                  LLP, Carol Nelkin, Jeffrey P.
20                                  Sinensky, and Kara H. Stein, the
21                                  American Jewish Committee, on the
22                                  brief), Gibson, Dunn & Crutcher,
23                                  LLP, New York, NY, for Amicus
24                                  Curiae the American Jewish
25                                  Committee.
26
27                                  ANTHONY J. COSTANTINI, the
28                                  Committee on Education and the Law,
29                                  Association of the Bar of the City
30                                  of New York (Jonathan R. Bell,
31                                  Rosemary Halligan, and Laura L.
32                                  Himelstein, on the brief), New
33                                  York, NY, for Amicus Curiae
34                                  Committee on Education and the Law,
35                                  Association of the Bar of the City
36                                  of New York.
37
38   PER CURIAM:

39        The Bronx Household of Faith, a Christian church, has

40   applied to use New York City school facilities for Sunday worship

41   services.   In 2001, the Board of Education of the City of New

42   York denied Bronx Household’s application, relying on Standard

43   Operating Procedure Manual (SOP) § 5.11, its rule then in effect


                                     -2-
1    governing the use of school facilities by outside groups for

2    “social, civic, [or] recreational meetings, . . . and other uses

3    pertaining to the welfare of the community.”     New York Educ. L. §

4    414(1)(c).    The District Court for the Southern District of New

5    York (Loretta A. Preska, Judge) first preliminarily enjoined the

6    City’s enforcement of SOP § 5.11, concluding that the City could

7    not exclude Bronx Household.    This court affirmed the preliminary

8    injunction.    The district court then entered a permanent

9    injunction barring the City from enforcing a revision of SOP §

10   5.11.    (“Revised SOP § 5.11”).   (Judges Walker and Calabresi

11   believe the revision to be the current version of SOP § 5.11,

12   while Judge Leval questions whether the revision has been

13   formally adopted.)1

14        We hereby vacate the permanent injunction, although we reach

15   that conclusion in rather circuitous fashion.     Judge Calabresi

16   would hold that this dispute is ripe for adjudication and would

17   vacate the injunction because he concludes that Revised SOP §

18   5.11, while a restriction on the content of speech permitted on

19   school property, is viewpoint-neutral.     Judge Walker agrees that

20   the dispute is ripe for adjudication but would affirm the

21   injunction because he concludes that Revised SOP § 5.11 is

22   viewpoint-discriminatory.    Judge Leval expresses no opinion on

23   the merits, but votes to vacate the injunction because he


          1
1            Judges Calabresi and Leval describe the remaining salient
2    facts in their concurring opinions.

                                        -3-
1    concludes that the dispute is not ripe for adjudication.

2         Our disparate views of this case leave us without a

3    rationale to which a majority of the court agrees.   While two

4    judges who disagree on the merits believe the dispute is ripe for

5    adjudication, the court cannot decide the merits of the case

6    without the vote of the third judge, who disagrees as to

7    ripeness.   Judge Leval agrees that the dispute over Revised SOP §

8    5.11 would indisputably become ripe if the City were to deny

9    Bronx Household permission to use school facilities in reliance

10   on the terms of that rule.2

11        In vacating the judgment, we remand the action to the

12   district court for all purposes.   We have every reason to believe

13   that both parties hope to bring this protracted litigation to an

14   end by obtaining a decision on the merits.   The City is free to

15   adopt Revised SOP § 5.11 (if it has not already done so), and

16   then require that Bronx Household apply to use school buildings

17   pursuant to that rule.   In the event Bronx Household does so, and

18   the City denies the application, Bronx Household may seek review

19   of that denial in the district court on an expedited basis.

20   Either party’s appeal from any judgment of the district court


          2
1           We express no firm opinion respecting whether or not the
2    preliminary injunction, which preceded Revised SOP § 5.11 and
3    remains in effect, bars the enforcement of Revised SOP § 5.11 (if
4    it has been adopted), nor do we need to decide whether or not if
5    it does, that fact in itself renders the dispute ripe. Rather,
6    we note simply that we do not read the preliminary injunction to
7    preclude the City from adopting Revised SOP § 5.11 (if it has not
8    done so already).

                                     -4-
1    will be referred to this panel.    If the parties desire a speedy

2    resolution of their dispute, we believe all this can be

3    accomplished with little delay; indeed, we direct the parties to

4    advise us should they file another appeal and invite the parties,

5    should they wish to, otherwise to apprise us of subsequent

6    developments, in either case by directing a letter to the Clerk

7    of Court.

8         The permanent injunction of the District Court for the

9    Southern District of New York is VACATED.   Concurring opinions by

10   Judges Calabresi and Leval, as well as a dissenting opinion by

11   Judge Walker, follow.

12




                                       -5-
 1   CALABRESI, Circuit Judge:

 2        Is   worship    merely       the   religious      analogue      of   ceremonies,

 3   rituals, and instruction, or is worship a unique category of

 4   protected   expression?       I    believe     the    answer    to   that     question

 5   determines the result in this case brought under the Free Speech

 6   Clause of the First Amendment.

 7        The Bronx Household of Faith (“Bronx Household”), a Christian

 8   church, along with its pastors Robert Hall and Jack Roberts,

 9   attacked as viewpoint discrimination the refusal of the Board of

10   Education of the City of New York (“the Board”) and Community

11   School District No. 10 (“the School District”) to permit the church

12   to use school facilities for Sunday worship services. The district

13   court (Preska,      J.)   granted       summary      judgment   in    favor    of   the

14   plaintiffs and permanently enjoined defendants from enforcing their

15   policy that excludes worship services from school facilities. I

16   vote to vacate the court’s determination that, as a matter of law,

17   defendants’ exclusion of worship services from school facilities is

18   impermissible viewpoint discrimination, and remand the case to the

19   district court for further developments in light of this and the

20   other opinions of this panel filed today.


21                                      I. BACKGROUND
22
23
24        The relevant facts are not in dispute. The conflict between

25   these parties began in 1994, when the School District denied



                                              -6-
 1   plaintiffs’ request to rent space in the Anne Cross Mersereau

 2   Middle School (“M.S. 206B”) for Sunday morning meetings. Bronx

 3   Household’s weekly meetings would have included the “singing of

 4   Christian hymns and songs, prayer, fellowship with other church

 5   members and Biblical preaching and teaching, communion, sharing of

 6   testimonies” and a “fellowship meal” that allows attendees to talk

 7   and provide “mutual help and comfort to” one another. (First

 8   Affidavit of Robert Hall at 1).

 9        Under New York State law, local school districts may permit

10   their facilities to be used during after-school hours for a broad

11   range   of   purposes,   including   “social,   civic   and   recreational

12   meetings and entertainments, and other uses pertaining to the

13   welfare of the community; but such meetings, entertainment and uses

14   shall be nonexclusive and shall be open to the general public.”

15   N.Y. Education Code § 414(1)(c) (McKinney 2006). The statute

16   authorizes the “trustees or board of education of each district” to

17   allow access to school facilities for any use it chooses within

18   this range of purposes. § 414(1). District No. 10, a public school

19   district in the Bronx, is subject to the jurisdiction of the New

20   York City Board of Education.

21        In 1994, the School District enforced the Board’s Standard

22   Operating Procedures Manual (SOP) which, at the time, included a

23   provision barring outside organizations from conducting “religious

24   services or religious instruction on school premises after school,”



                                          -7-
 1   though it allowed groups to “discuss[] religious material or

 2   material   which    contains    a   religious     viewpoint.”    SOP   §   5.9.

 3   Plaintiffs brought an action against defendants to compel the

 4   School District to grant a permit for Bronx Household’s weekly use

 5   of   the   school   facilities,     but     the   district     court   granted

 6   defendants’ motion for summary judgment, and dismissed the suit.

 7   Bronx Household of Faith v. Community Sch. Dist. No. 10, No. 95

 8   Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). We affirmed. 127

 9   F.3d 207 (2d Cir. 1997), cert. denied, 523 U.S. 1074 (1998)

10   [hereinafter Bronx Household I].

11        We subsequently applied our reasoning from Bronx Household I

12   to another viewpoint discrimination challenge brought against the

13   Milford School District by a private Christian organization for

14   children (the Good News Club). We held that the Milford district

15   could deny the Good News Club a permit to conduct religious

16   instruction   in    school     facilities    because    this    amounted     to

17   “quintessentially religious” activity. Good News Club v. Milford

18   Central Sch., 202 F.3d 502 (2d Cir. 2000).

19        The Supreme Court, however, reversed our holding in that case.

20   533 U.S. 98 (2001). The Court found that the Good News Club was

21   seeking “to address a subject otherwise permitted [in the school],

22   the teaching of morals and character, from a religious standpoint.”

23   533 U.S. at 109. The High Court did not dispute the validity of

24   Justice Souter’s description of the Club’s activities as including



                                          -8-
 1   elements of worship, from the opening and closing of meetings with

 2   prayer, to activities such as “the challenge,” where already

 3   “saved” children would ask God for strength, and “the invitation,”

 4   during which the teacher would “invite” the “unsaved” children to

 5   “receive” Jesus as their “Savior from sin.” Id. at 137-38 (Souter,

 6   J., dissenting). Nevertheless concluding that the Good News Club’s

 7   activities were not “mere religious worship, divorced from any

 8   teaching of moral values,” id. at 112 n.4, the Court declared: “We

 9   disagree that something that is ‘quintessentially religious’ or

10   ‘decidedly      religious   in   nature’   cannot    also    be   characterized

11   properly as the teaching of morals and character development from

12   a particular viewpoint,” id. at 111. On this basis, and given that

13   other types of moral and character development teaching were

14   permitted “after school,” the Court condemned Milford’s exclusion

15   of the Good News Club as viewpoint discrimination. Id. at 102, 108-

16   109. It further held that while it is “not clear” whether a state

17   interest   in    avoiding   an   Establishment      Clause    violation   could

18   justify viewpoint discrimination, “[w]e need not . . . confront the

19   issue in this case, because we conclude the school has no valid

20   Establishment Clause interest.” Id. at 113.

21        After the Supreme Court’s decision in Good News Club, Bronx

22   Household in 2001 again applied for and was again denied a permit

23   to use District No. 10’s middle school for weekly Sunday meetings.

24   The grounds of this denial remained the Board’s SOP provision



                                          -9-
 1   prohibiting any “outside organization or group” from conducting

 2   “religious services or religious instruction on school premises

 3   after school.” SOP § 5.11 (the section was previously numbered 5.09

 4   in Bronx Household I). Bronx Household brought a new action against

 5   the defendants, and this time the district court, following the

 6   Supreme Court’s ruling in Good News Club, preliminarily enjoined

 7   the School District from denying the permit on the basis of SOP §

 8   5.11 and the religious nature of the church’s weekly meetings. 226

 9   F. Supp. 2d 401 (S.D.N.Y. 2002).1 A divided panel of our court

10   affirmed: “We find no principled basis upon which to distinguish

11   the activities set out by the Supreme Court in Good News Club from

12   the activities that the Bronx Household of Faith has proposed for

13   its Sunday meetings at Middle School 206B.” 331 F.3d 342, 354 (2d

14   Cir. 2003) [hereinafter Bronx Household II].

15         In so doing, however, the majority stated that “it cannot be

16   said that the meetings . . . constitute only religious worship,

17   separate and apart from any teaching of moral values,” and added:

18       Like the Good News Club meetings, the Sunday morning meetings
19       of the church combine preaching and teaching with such
20       “quintessentially religious” elements as prayer, the singing
21       of songs, and communion. The church’s Sunday morning meetings


     1
1      The action was initially brought under the First Amendment, the
2    Equal Protection Clause, and Sections 3, 8, and 11 of Article I of
3    the New York Constitution. Since the district court granted the
4    injunction requested by plaintiffs on the First Amendment free
5    speech ground without addressing the remaining claims, 226 F. Supp.
6    2d 401, 426-27 (S.D.N.Y. 2002), plaintiffs have not pursued the
7    alternative claims and they are not before us in the instant
8    appeal.


                                     -10-
 1     also encompass secular elements, for instance a fellowship
 2     meal during which church members may talk about their problems
 3     and needs.
 4   Id.

 5         Notably, in Bronx Household II, we specified that “[o]ur

 6   ruling is confined to the district court’s finding that the

 7   activities plaintiffs have proposed for their Sunday meetings are

 8   not simply religious worship, divorced from any teaching of moral

 9   values or other activities permitted in the forum.” Id. (emphasis

10   added). We thus left unresolved the instant appeal’s central

11   question:

12     How does the distinction drawn in our earlier precedent
13     between worship and other forms of speech from a religious
14     viewpoint relate to the dichotomy suggested in Good News Club
15     between “mere” worship on the one hand and worship that is not
16     divorced from the teaching of moral values on the other?

17   Id. at 355. Moreover, and despite our acknowledgment of an “obvious

18   tension” between our ruling in Bronx Household I and the district

19   court’s application of Good News Club, we specifically “decline[d]

20   to review the trial court’s further determinations that, after Good

21   News Club, religious worship cannot be treated as an inherently

22   distinct type of activity, and that the distinction between worship

23   and other types of religious speech cannot meaningfully be drawn

24   by the courts.” Id.

25         Bronx Household thereafter applied for, and was granted,

26   permission to use P.S. 15 in Bronx, New York, on Sundays from

27   10:00am to 2:00pm. Bronx Household has used the school facilities



                                    -11-
 1   since August 2002, with attendance on a given Sunday morning

 2   reaching approximately 85-100 people. The church’s Sunday meeting

 3   activities in the school facilities include “singing songs and

 4   hymns; teaching from the Bible; sharing testimonies from people in

 5   attendance;     socializing;        eating;        engaging     in     prayer;   and

 6   communion.” 400 F. Supp. 2d 581, 592 (S.D.N.Y. 2005).

 7        Subsequently, while the preliminary injunction was in effect

 8   and the church was exercising its permit to use school facilities,

 9   the Board of Education announced that it was modifying the enjoined

10   SOP provision. As revised, § 5.11 states:

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

18   (emphasis    added).    Having      altered    §    5.11,   defendants     notified

19   plaintiffs that:

20           Plaintiffs’ use of P.S. 15 for the Bronx Household of
21           Faith’s regular worship services is prohibited under the
22           revised section 5.11. Defendants are not currently
23           enforcing the revised section 5.11 . . . because of the
24           preliminary injunction Order that was entered in this
25           case. Should defendants prevail in this motion for
26           summary judgment and the preliminary injunction Order be
27           vacated, then any future application by plaintiffs to
28           hold their worship services at P.S. 15 or any other
29           school will be denied.
30   400 F. Supp. 2d at 588.

31        In March 2005, the parties cross-moved for summary judgment.

32   Bronx    Household     moved   to    convert       the   July   2002    preliminary


                                            -12-
 1   injunction into a permanent injunction, contending the revised SOP

 2   § 5.11 is unconstitutional for the same reason the enjoined SOP

 3   provision was held to be unconstitutional. The district court

 4   granted plaintiffs’ motion for summary judgment, denied defendants’

 5   cross-motion for summary judgment, and permanently enjoined the

 6   Board from enforcing SOP § 5.11 against appellees.

 7         On    appeal,   defendants     argue   that:    (1)   their   categorical

 8   exclusion of worship services as an after-hours use of school

 9   facilities does not constitute viewpoint discrimination; and (2)

10   even if they are found to have discriminated on the basis of

11   viewpoint, such discrimination was justified to avoid violations of

12   the Establishment Clause. In response, plaintiffs acknowledge that

13   “[f]rom the particular theological perspective of the pastors, . .

14   .   these   activities   done   at    the    Sunday   morning   meeting   [are]

15   collectively a ‘worship service.’” (Brief of Appellees at 10). But

16   they contend that worship is protected like any other religious

17   speech, and that under Good News Club the state discriminates on

18   the basis of viewpoint when it excludes worship services from

19   school facilities. Additionally, plaintiffs argue that the state

20   does not possess a sufficiently overriding interest in avoiding an

21   Establishment Clause violation to justify viewpoint discrimination

22   against Bronx Household.

23

24



                                           -13-
 1                              II. DISCUSSION

 2

 3        In Bronx Household II we expressly reserved judgment on

 4   whether worship is simply speech expressing a religious viewpoint

 5   on the same subject addressed in a variety of ways in the rituals,

 6   ceremonies, and instruction of secular and religious organizations,

 7   or whether worship is a unique subject protected as a sui generis

 8   category under the Free Speech Clause. Cf. Bronx Household I, 127

 9   F.3d at 221 (Cabranes, J., concurring in part and dissenting in

10   part) (stating that “there is no real secular analogue to religious

11   ‘services’”). At that time, we upheld a preliminary injunction

12   against defendants’ regulation barring the use of school facilities

13   for “religious services or religious instruction,” since the latter

14   directly implicated the Supreme Court’s ruling in Good News Club.

15   But now the Board’s modified regulation excludes only worship

16   services that are not part and parcel of religious instruction. As

17   a result, I believe that we must consider the relationship, after

18   Good News Club, between worship, simpliciter, and other forms of

19   protected   speech,    including      religious   and   nonreligious

20   instructional speech and rituals.2


     2
1     Judge Leval argues that the propriety of a permanent injunction
2    against the revised SOP § 5.11 is not ripe for adjudication. The
3    question is a close one. It turns, in part, on whether the Board
4    has actually adopted the new SOP § 5.11, or whether the revision
5    has simply been proposed. While there are some comments in the
6    record that could be taken to mean the Board will adopt revised SOP


                                    -14-
 1
 1   § 5.11, there is also specific evidence in the record that
 2   defendants have already done so. See, e.g., Statement of Attorney
 3   for the Board (“It is a policy that has been approved at the
 4   highest levels of the Department of Education. The only reason that
 5   we have not implemented it at this time or applied it to the
 6   plaintiffs in this case is because of the court’s preliminary
 7   injunction.”); Letter from Lisa Grumet to Jordan Lorence and Joseph
 8   Infranco (Aug. 17, 2005), 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005)
 9   (“The use of P.S. 15 for . . . regular worship services is
10   prohibited under the revised section 5.11. . . . Should defendants
11   prevail in this motion for summary judgment and the preliminary
12   injunction Order be vacated, then any future application by
13   plaintiffs to hold their worship services at P.S. 15 or any other
14   school will be denied.”). In deciding to make the injunction
15   permanent and applying it directly to worship services, the court
16   below must be taken to have found that the new SOP § 5.11 was, in
17   fact, adopted, and I cannot say that this fact-finding was clearly
18   erroneous.
19        Judge Leval relies, as he must, on the Supreme Court’s leading
20   decisions on ripeness, including Abbott Laboratories v. Gardner,
21   387 U.S. 136 (1967), overruled on other grounds, Califano v.
22   Sanders, 430 U.S. 99 (1977). That case permitted, at a
23   constitutional level and at a prudential level, judicial
24   consideration of an agency regulation prior to its enforcement, in
25   part because the impact of the regulation on the plaintiffs was
26   “sufficiently direct and immediate.” Id. at 152. In this case,
27   there is one unmistakable “direct and immediate” consequence for
28   the parties; the case has been up and down the courts for years and
29   no resolution as to the rights of the Board or Bronx Household is,
30   as yet, forthcoming. At the prudential level, I do not believe we
31   should ignore that very practical consequence.
32        Moreover, I am not convinced that there are not more
33   traditionally legal consequences as well. If we simply vacate the
34   permanent injunction without reaching the merits, as Judge Leval’s
35   opinion would do, we leave in place the preliminary injunction
36   based on the old SOP § 5.11. That injunction correctly, in light of
37   Good News Club, prohibited the Board from excluding Bronx
38   Household’s use of school premises for conduct that included
39   “religious instruction,” but it did more. It barred the Board from
40   denying plaintiffs’ application to rent space in the school “for
41   morning meetings that include religious worship . . . .” (emphasis
42   added). That, by itself, more than minimally hampers the Board in
43   seeking to enforce the revised SOP § 5.11. I believe that this
44   comfortably meets the constitutional ripeness requirements of
45   Abbott and its progeny, and together with the effects of long delay
46   in this case, weighs heavily on the issue of prudential ripeness.
47        I fully agree that we should take very seriously our


                                    -15-
                Standard of Review
 1     A.
 2
 3          We review de novo the district court’s grant of summary

 4   judgment and construe the evidence in the light most favorable to

 5   the non-moving party. See World Trade Center Properties, L.L.C. v.

 6   Hartford Fire Ins. Co., 345 F.3d 154, 165-166 (2d Cir. 2003);

 7   Johnson v. Wing, 178 F.3d 611, 614 (2d Cir. 1999). Summary judgment

 8   is appropriate only if there are no genuine issues of material fact

 9   such that the party making the motion is “entitled to judgment as

10   a matter of law.” Fed. R. Civ. P. 56(c); see Peck v. Public Service

11   Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003). This standard

12   applies equally to cases, like the instant one, in which both

13   parties moved for summary judgment.       See   Morales v. Quintel

14   Entertainment, Inc., 249 F.3d 115, 121 (2d Cir. 2001). As a result,

15   when parties have filed cross-motions for summary judgment, the

 1   obligation to avoid unnecessary constitutional adjudication. And if
 2   I agreed with Judge Leval that this case was not ripe, I would,
 3   like him, happily defer consideration. And I would even hope that
 4   it would not return or do so only in some constitutionally easier
 5   factual context. But once I, unlike Judge Leval, conclude that the
 6   case is ripe, I cannot hide from the constitutional issues that are
 7   there, fully argued, smack in our faces, and where failure to
 8   resolve them subjects the parties to long delay and costly
 9   uncertainties. That is, having found ripeness, I must decide the
10   constitutional questions based on the facts before us today and not
11   fail to act in the hope that they might disappear in another case
12   involving other facts.
13        There are many arguments in favor of the position Judge Leval
14   takes, especially with respect to prudence. I do not wish to
15   undervalue them. All in all, though, I think the correct and
16   prudent thing to do in this case is to bite the bullet and decide
17   what the constitutional consequence of the exclusion of worship
18   services, as against religious instruction, is.


                                     -16-
 1   court “must evaluate each party’s motion on its own merits, taking

 2   care in each instance to draw all reasonable inferences against the

 3   party whose motion is under consideration.” Hotel Employees & Rest.

 4   Employees Union, Local 100 v. City of New York Dep’t of Parks &

 5   Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein,

 6   Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)).

                    Applicable Level of Constitutional Scrutiny
 7     B.
 8

 9          The Constitution does not guarantee unlimited freedom to speak

10   on government property. Cornelius v. NAACP Legal Defense & Educ.

11   Fund,    473    U.S.   788,   799   (1985).   The   scrutiny   applied   to

12   restrictions of speech on government property varies with the

13   nature of the forum in which the speech occurs. To guide us, in

14   this respect, the Supreme Court has defined four categories of

15   “fora for expression . . . that, correspondingly, fall along a

16   spectrum of constitutional protection.” Peck v. Baldwinsville Cent.

17   Sch. Dist., 426 F.3d 617, 625 (2d Cir. 2005).

18          In traditional public fora – streets, parks, and places that

19   “by long tradition . . . have been devoted to assembly and debate,”

20   Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-

21   46 (1983) – speakers can be excluded only if the exclusion is

22   “necessary to serve a compelling state interest and the exclusion

23   is narrowly drawn to achieve that interest.” Cornelius, 473 U.S. at

24   800.


                                         -17-
 1        We   apply     the   same   scrutiny   to    restrictions   in    a   second

 2   category, the “designated public forum.” “[W]hen the government has

 3   intentionally designated a place or means of communication as a

 4   public forum[,] speakers cannot be excluded without a compelling

 5   governmental interest,” id., and this remains so even though the

 6   forum is not traditionally open to public assembly and debate.

 7        The Court has also recognized a third category, the limited

 8   public forum. A limited public forum is created when the government

 9   designates “a place or channel of communication for use by the

10   public at large for assembly and speech, for use by certain

11   speakers, or for the discussion of certain subjects.” Id. at 802.

12   In the limited public forum, an entire class of speakers or

13   subjects may be excluded according to “reasonable, viewpoint-

14   neutral rules governing the content of speech allowed.” Peck, 426

15   F.3d at 626. But, once the government “allows expressive activities

16   of a certain genre, it may not selectively deny access for other

17   activities of that genre.” Travis v. Owego-Apalachin Sch. Dist.,

18   927 F.2d 688, 692 (2d Cir. 1991); see also Rosenberger v. Rector &

19   Visitors of the Univ. of Virginia, 515 U.S. 819, 829 (1995) (“[T]he

20   State must respect the lawful boundaries it has itself set. The

21   state   may   not    exclude     speech   where    its   distinction       is   not

22   reasonable in light of the purpose served by the forum, nor may it

23   discriminate against speech on the basis of its viewpoint.”)

24   (internal quotation marks and citations omitted).



                                          -18-
 1        Finally, in a nonpublic forum, which has not been opened by

 2   tradition or designation to the public for communication, speech

 3   may be excluded through any “reasonable” content-based restrictions

 4   so long as these do not “suppress expression merely because public

 5   officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S.

 6   at 46.

 7        In   Bronx   Household   I,   we    held      that   defendants’   school

 8   facilities constituted a limited public forum and, consequently,

 9   that speech could be barred only through restrictions that were

10   viewpoint neutral and reasonably related to the limited purposes

11   of the forum. 127 F.3d at 211-214. Bronx Household II did not

12   revisit this finding.3 We remain bound by our finding that the

13   school in the case at bar is a limited public forum. There is

14   nothing in the record that requires us to reconsider that holding.

15   And Good News Club in no way calls our reasoning on this point into

16   question.   533   U.S.   at   107;      id.   at    136   n.1   (Souter,   J.,

17   dissenting).4
     3
 1     Even prior to Bronx Household’s suits, we had repeatedly found
 2   that New York State, in its statute authorizing the use of school
 3   facilities, intended to create only a limited public forum. Deeper
 4   Life Christian Fellowship v. Sobol, 948 F.2d 79, 83-84 (2d Cir.
 5   2001) (citing Tretley v. Bd. of Ed., 65 A.D.2d 1 (N.Y. App. Div.
 6   1978)); see also Cornelius, 473 U.S. at 802; Lamb’s Chapel v.
 7   Center Moriches Union Free School District, 508 U.S. 384, 390
 8   (1993) (“There is no question that the [School] District, like the
 9   private owner of property, may legally preserve the property under
10   its control for the use to which it is dedicated.”).
     4
1      It bears observing that, in constituting this particular limited
2    public forum, defendants excluded in their entirety several other
3    classes of speakers and subjects apart from those at issue in the


                                          -19-
 1        Since the forum involved in this case is a limited public

 2   forum, the question of whether defendants’ exclusion of worship

 3   services constitutes content or viewpoint discrimination becomes

 4   crucial. For, as the Supreme Court has stated in Rosenberger:

 5     [I]n determining whether the State is acting to preserve the
 6     limits of the forum it has created so that the exclusion of a
 7     class of speech is legitimate, we have observed a distinction
 8     between, on the one hand, content discrimination, which may be
 9     permissible if it preserves the purposes of that limited
10     forum, and, on the other hand, viewpoint discrimination, which
11     is presumed impermissible when directed against speech
12     otherwise within the forum’s limitations.

13   515 U.S. at 829-30 (emphasis added).

14        It is, of course, not always easy to “draw[] a precise line of

15   demarcation” between “what amounts to a subject matter unto itself,

16   and what, by contrast, is best characterized as a standpoint from

17   which a subject matter is approached.” Peck, 426 F.3d at 630

18   (citing   Rosenberger,     515    U.S.    at   831).    Nevertheless,    the

19   distinction is essential to the Court’s balance between a required

20   protection   of   speech    and    an    essential     protection   of   the

21   government’s ability to define the bounds of a limited forum it

22   chooses to open. And, as the Court has written unequivocally, the

23   State may be justified “in reserving [its forum] for certain groups


1    instant case. Among those excluded were electoral candidates’
2    “political events, activities or meetings,” SOP § 5.7, and any
3    “commercial purposes, except for flea market operations.” SOP §
4    5.10. As a result, any redefinition of the nature of the school
5    forum before us would necessarily trigger searching scrutiny of the
6    Board’s exclusion from school facilities of political and
7    commercial activities as well as the worship services involved in
8    the current appeal.


                                        -20-
 1   or for the discussion of certain topics.” Rosenberger, 515 U.S. at

 2   829. It follows that we may uphold defendants’ exclusion of worship

 3   services from their limited public forum, but that we may only do

 4   so if we find that SOP § 5.11 is a “reasonable, viewpoint-neutral

 5   rule[] governing the content of speech allowed.” Peck, 426 F.3d at

 6   626    (first    emphasis    added)   (citing   Hotel   Employees   &   Rest.

 7   Employees Union Local 100, 311 F.3d at 545-6); see also New York

 8   Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 128 (2d Cir.

 9   1998).

10

11     C.        Viewpoint Neutrality
12

13          In the end, I conclude that the barring of worship services

14   from defendants’ school facilities is a content-based restriction

15   and does not constitute viewpoint discrimination. In reaching this

16   conclusion, I first examine how the Court has defined viewpoint

17   discrimination, and then analyze the restriction before us.

18
19            1. Defining Discrimination on the Basis of Viewpoint
20
21          In a limited public forum, speech addressing an otherwise

22   permitted subject may not be restricted on the basis of its

23   viewpoint, and this concept applies directly to protect religious

24   approaches to the subject that is being discussed. This core

25   principle       of   the    Supreme   Court’s   religious   discrimination

26   jurisprudence derives from three key decisions: Lamb’s Chapel v.


                                           -21-
 1   Center Moriches Union Free School District, 508 U.S. 384 (1993),

 2   Rosenberger v. Rector and Visitors of the University of Virginia,

 3   515 U.S. 819 (1995), and Good News Club v. Milford Central School,

 4   533 U.S. 98 (2001).

 5         In   Lamb’s   Chapel,     a   unanimous   Supreme      Court   declared

 6   unconstitutional the denial of an evangelical church’s request to

 7   use school facilities to show a film series addressing child-

 8   rearing questions from a Christian perspective. The Court concluded

 9   that “it discriminates on the basis of viewpoint to permit school

10   property to be used for the presentation of all views about family

11   issues and childrearing except those dealing with the subject

12   matter from a religious standpoint.” 508 U.S. at 393. The Court

13   emphasized that Lamb’s Chapel concerned not just any religious

14   speech, but specifically a religious perspective on the clearly

15   permitted subject of childrearing and family:

16     There is no suggestion . . . that a lecture or film about
17     child rearing and family values would not be a use for social
18     or civic purposes otherwise permitted . . . . That subject
19     matter is not one that the District has placed off limits to
20     any and all speakers.

21   Id.

22         In   Rosenberger,   the   Court   found   that   the    University   of

23   Virginia discriminated on the basis of viewpoint by denying funding

24   for a student group that published a newspaper with a Christian

25   editorial viewpoint:




                                         -22-
 1     By the very terms of the [University fund’s] prohibition, the
 2     University does not exclude religion as a subject matter but
 3     selects for disfavored treatment those student journalistic
 4     efforts with religious editorial viewpoints. Religion may be
 5     a vast area of inquiry, but it also provides, as it did here,
 6     a specific premise, a perspective, a standpoint from which a
 7     variety of subjects may be discussed and considered.

 8   515 U.S. at 831. Once again, the Court found it essential that

 9   “[t]he prohibited perspective, not the general subject matter,

10   resulted in the [University’s] refusal to make . . . payments.” Id.

11          Finally, in Good News Club the Court affirmed the principle

12   that “speech discussing otherwise permissible subjects cannot be

13   excluded from a limited public forum on the ground that the subject

14   is discussed from a religious viewpoint.” 533 U.S. at 112. The Good

15   News   Club   had   applied   to   use       the   Milford   District’s   school

16   facilities for meetings that included “singing songs, hearing a

17   Bible lesson and memorizing scripture,” 533 U.S. at 103, with “the

18   purported purpose . . . to instruct children in moral values from

19   a Christian perspective.” 202 F.3d 502, 504 (2d Cir. 2000). The

20   Club   characterized    itself     as    a     youth   organization   that   aids

21   children’s moral and spiritual development through the use of Bible

22   stories to teach such “values as obedience or resisting jealousy.”

23   Id. at 509. The Club described these and its other activities as

24   follows:

25     The Club opens its session with Ms. Fournier taking
26     attendance. As she calls a child’s name, if the child recites
27     a Bible verse the child receives a treat. After attendance,
28     the Club sings songs. Next[,] Club members engage in games
29     that involve, inter alia, learning Bible verses. Ms. Fournier


                                             -23-
 1     then relates a Bible story and explains how it applies to Club
 2     members’ lives. The Club closes with prayer. Finally, Ms.
 3     Fournier distributes treats and the Bible verses for
 4     memorization.

 5   Id. at 507. The Club’s materials included a prayer booklet called

 6   the “Daily Bread,” which “contained stories that refer to the

 7   second coming of Christ, accepting the Lord Jesus as the Savior

 8   from sin, and believing in the Resurrection and in the descent of

 9   the Lord Jesus from Heaven.” Id. On this basis, the school district

10   concluded that the Club’s activities were not discussing “secular

11   subjects such as child rearing, development of character and

12   development of morals from a religious perspective, but were in

13   fact the equivalent of religious instruction itself.” Id.

14        The   Supreme   Court   overturned   this   court’s   finding   that

15   Milford’s exclusion of the Club was viewpoint neutral. Likening the

16   Club’s Bible study instruction to the Lamb’s Chapel film series,

17   the Court held:

18     The only apparent difference between the activity of Lamb’s
19     Chapel and the activities of the Good News Club is that the
20     Club chooses to teach moral lessons from a Christian
21     perspective through live storytelling and prayer, whereas
22     Lamb’s Chapel taught lessons through films. This distinction
23     is inconsequential. Both modes of speech use a religious
24     viewpoint.

25   533 U.S. at 109-10. Significantly, the Court held that even if the

26   Club’s activities were “quintessentially religious” or “decidedly

27   religious in nature,” they could still be characterized properly

28   as the teaching of morals and character development: “What matters



                                      -24-
 1   for purposes of the Free Speech Clause is that we can see no

 2   logical difference in kind between the invocation of Christianity

 3   by the Club and the invocation of teamwork, loyalty, or patriotism

 4   by other associations to provide a foundation for their lessons.”

 5   Id. at 111 (emphasis added).


 6          2. The Category of Worship Services

 7        What, then, is worship? Is it an approach to or a way of

 8   considering an otherwise permitted subject of discussion, or is it

 9   a unique subject? Defendants argue that, while a film series on

10   childrearing,   a   student   newspaper,   and   instruction   on   moral

11   development “no doubt dealt with . . . subject[s] otherwise

12   permissible,” Lamb’s Chapel, 508 U.S. at 394, worship is not simply

13   another standpoint on a secular subject. Worship is the sui generis

14   subject “that the District has placed off limits to any and all

15   speakers,” regardless of their perspective. Id. at 393.5 I agree.




     5
 1     Much of my discussion is consistent with and derives from the
 2   very powerful opinion of Judge Cabranes, concurring in part and
 3   dissenting in part in Bronx Household I, 127 F.3d at 221 (“Unlike
 4   religious ‘instruction,’ there is no real secular analogue to
 5   religious ‘services,’ such that a ban on religious services might
 6   pose a substantial threat of viewpoint discrimination between
 7   religion and secularism.”). The Ninth Circuit has reached the same
 8   conclusion in an analogous case, Faith Ctr. Church Evangelistic
 9   Ministries v. Glover, 462 F.3d 1194, 1211 (9th Cir. 2006)
10   (“Religious worship . . . is not a viewpoint but a category of
11   discussion within which many different religious perspectives
12   abound.”).


                                      -25-
 1        Indeed, the Good News Club Court itself recognized this

 2   subject matter, worship, as falling outside the boundary of its

 3   viewpoint discrimination jurisprudence. In finding that the Club’s

 4   religious instruction was just one viewpoint among many on moral

 5   character and development, the Court emphasized the distinction

 6   between this instructional “viewpoint” and the separate category

 7   of “mere religious worship, divorced from any teaching of moral

 8   values.” 533 U.S. at 112 n.4. And the Court’s majority specified

 9   that the Second Circuit had not characterized the Club’s activities

10   as “religious worship.” Id. It was for this reason that – while

11   acknowledging that the Club’s activities would include prayer and

12   be of a “quintessentially religious” nature – the Court found no

13   basis for considering the group’s “use of religion as something

14   other than a viewpoint merely because of any evangelical message

15   it conveys.” Id. By contrast, the record in the case before us

16   makes clear that Bronx Household’s use of religion was expressly

17   for worship in itself, and not as a form of discussion of or

18   approach to other topics.6

     6
 1     Justice Souter, in dissent, argued that the Good News Club’s
 2   activities constituted “an evangelical service of worship.” 533
 3   U.S. at 138. Plaintiffs suggest that, because the Court
 4   acknowledged Justice Souter’s conclusion and determined that
 5   “[r]egardless of the label . . . what matters is the substance of
 6   the Club’s activities,” id. at 112 n.4, the High Court must have
 7   deemed “worship services” to be a viewpoint on an otherwise
 8   permitted subject. This argument fails, however, because the
 9   majority did no more than validate Justice Souter’s recitation of
10   the Club’s activities, not his label of them as a worship service.
11   Indeed, the Court expressly stated that these activities did not


                                    -26-
 1          In applying for a permit to use school facilities, Bronx

 2   Household’s pastor described the proposed activities with three

 3   words: “Christian worship service.” (EBT Transcript of Robert Hall

 4   (Jan. 24, 2005)). Despite subsequent changes in plaintiffs’ account

 5   of    these   activities,      Pastor    Hall   repeatedly     confirmed    that

 6   “Christian worship service” is an “accurate description” of that

 7   for which Bronx Household requested permission to use school

 8   facilities. Id.7 Specifically, Bronx Household called its meetings

 9   a “church service” and enumerated the activities engaged in as

10   including     the   “singing    of   Christian   hymn   and    songs,   prayer,

11   fellowship    with   other     church    members,   Biblical    preaching   and

12   teaching, communion, sharing of testimonies and social fellowship

13   among the church members.” (First Affidavit of Robert Hall).

14   Plaintiff described these many “component activities that go to

15   make up a worship service,” as follows:

16        In our church service, we seek to give honor and praise to
17        our Lord and Savior Jesus Christ in everything that we do. To

1    “constitute mere religious worship, divorced from any teaching of
2    moral values.” Id.
     7
 1      Defendants note that in subsequent permit applications,
 2   plaintiffs listed only the component activities of the Sunday
 3   meetings and did so in order to avoid the term “worship.” Pastor
 4   Hall stated: “As a tactical move, we decided beforehand to avoid
 5   using the dreaded ‘W’ word for (shudder) worship. From their point
 6   of view, the school rents it building to groups involved in
 7   community, civic, and social activity. But worship, according to
 8   them, is a uniquely religious activity for which there is no
 9   ‘secular analog.’” Given Pastor Hall’s clear record statement of
10   what the facilities were to be used for, I need not, and do not,
11   consider whether defendants’ description of plaintiffs’ later
12   permit applications as mere “litigation strategy” is correct.


                                             -27-
 1     that end we sing songs and hymns of praise to our Lord. We
 2     read the Bible and the pastors teach from it because it tells
 3     us about God, what He wants us to do and how we should live
 4     our lives. We celebrate the Lord’s Supper (communion) each
 5     Sunday . . . .

 6   (emphasis added). And Hall expressly characterized his Sunday

 7   morning meetings as worship services because “[w]e ascribe worth,

 8   our supreme worth, to Jesus Christ.”

 9          On appeal to us, however, plaintiffs and their amici argue

10   that    the   activities    in   worship    services    amount    only   to   the

11   expression of a viewpoint on the discussions of social, civic, and

12   community welfare subjects as to which “thousands of permits have

13   been granted [by defendants] to diverse groups, including sports

14   leagues,      Legionnaire   Greys,   Boy     and   Girl   Scouts,    community

15   associations, and a college for holding English instruction.” In

16   doing     this,    plaintiffs      challenge,      in     three     ways,     the

17   characterization of worship as a unique subject. First, they claim

18   that the activities composing their worship services are the same

19   as those involved in the religious instruction protected as a

20   viewpoint in Good News Club. Second, plaintiffs argue the church’s

21   worship services “parallel” the ceremonies and rituals conducted by

22   other groups who are granted access to defendants’ schools. In this

23   respect, they claim their “worship” services stand in the same

24   relationship to these permitted rituals as the moral development

25   lessons taught by the Boy Scouts stood, according to the Good News

26   Club Court, to the lessons in moral development taught from a


                                          -28-
 1   religious perspective by the Good News Club. Third, plaintiffs

 2   contend, based on Supreme Court precedent, that there can be no

 3   intelligible content to the distinction between worship and other

 4   religious speech. I believe all three arguments are unavailing.


 5                                          (i)

 6        In    Good   News    Club   the    Court       held   that    the   religious

 7   instruction under consideration expressed a protected viewpoint on

 8   the permitted subjects of instruction, i.e., character and moral

 9   development, and only on these. The Court specifically concluded

10   that Milford had interpreted “its policy to permit discussions of

11   subjects   such   as     child   rearing,     and    of    the    ‘development   of

12   character and morals.’” 533 U.S. at 108; see also id. (holding

13   that, according its “Community Use Policy” establishing the limited

14   forum, “there is no question that teaching morals and character

15   development to children is a permissible purpose under Milford’s

16   policy”). And the Court’s reasoning confirmed that the boundary of

17   its ruling must be defined by the otherwise permitted subject

18   matter at stake. See, e.g., 533 U.S. at 111 (“[W]hen the subject

19   matter is morals and character, it is quixotic to attempt a

20   distinction between religious viewpoints and religious subject

21   matters.”) (quoting 202 F.3d at 512 (Jacobs, J., dissenting)

22   (emphasis added)). In the case at bar, by contrast, the subject,

23   “worship,” is not a viewpoint on a “subject matter[,] morals and



                                            -29-
 1   character,” id.; the subject is not a lecture or film about

 2   childrearing or family values; and the subject is not a variety of

 3   topics for journalistic exploration that the defendants permitted,

 4   except when they are undertaken from a religious perspective.

 5         Were we to follow plaintiffs’ construction of Good News Club

 6   and consider worship to be just a religious viewpoint on the

 7   subject of the welfare of the community, we would, whenever speech

 8   implicates religion, eviscerate the Supreme Court’s distinction

 9   between viewpoint and the subject matter to which that viewpoint

10   or approach is applied. That is not the meaning of Good News Club,

11   and such a meaning severely misunderstands the nature of worship.

12         To be sure, some of the same activities that were part of the

13   religious instruction validated in Good News Club are included in

14   the worship services that Bronx Household seeks to conduct. The

15   record confirms that the church’s proposed activities included the

16   singing of Christian hymns and songs along with Biblical preaching

17   and   teaching.   But   the   Good   News   Club   Court   sanctioned   such

18   activities, of a “quintessentially religious nature,” only because

19   they could “also be characterized properly as” the viewpoint from

20   which students were instructed in moral and character development.

21   533 U.S. at 111. The worship services before us today cannot be

22   properly so characterized. For, as Pastor Hall acknowledged, even

23   though the church may “do the same things that a Bible study group

24   does,” significant differences separate the subject of worship


                                          -30-
 1   services from moral instruction given from a religious viewpoint:

 2   “The Bible study club would not administer the sacraments of

 3   baptism and the Lord’s supper. That would be a big difference.”

 4                                         (ii)

 5        Worship services, moreover, are not in any sense simply the

 6   religious analogue of ceremonies and rituals conducted by other

 7   associations that are allowed to use school facilities. Indeed,

 8   holding that worship is only an agglomeration of rites would be a

 9   judicial finding on the nature of worship that would not only be

10   grievously wrong, but also deeply insulting to persons of faith. As

11   one such person, I find the notion that worship is the same as

12   rituals    and     instruction   to   be     completely    at   odds   with   my

13   fundamental beliefs. Prayer and worship services are not religious

14   viewpoints on the subjects addressed in Boy Scouts rituals or in

15   Elks Club ceremonies. Worship is adoration, not ritual; and any

16   other characterization of it is both profoundly demeaning and

17   false.

18        Not   surprisingly,     therefore,       Pastor   Hall’s   own    testimony

19   belies plaintiffs’ claim that they seek to conduct only the same

20   viewpoint-expressive activities as those of other groups discussing

21   permitted subjects. Hall wrote and distributed an article to church

22   members pointedly distinguishing the church from such other clubs

23   or associations. Unlike an       “Ecclesiastical club” or a “political

24   club,”    Pastor    Hall   explained,      “the   church    [i]s   a   covenant


                                           -31-
 1   community”; the church is “not a group of people who have a common

 2   interest in the same way that stamp collecting and coin collecting

 3   bring people together.” And Hall explicitly contrasted his group’s

 4   meetings    with    those    of    the   Boy     Scouts     whose    rituals   –   flag

 5   ceremonies, the Pledge of Allegiance, and the Scout Oath – “might

 6   be a parallel, but [are] different”: “We engage in the teaching and

 7   preaching of the word of God. We administer the sacraments of

 8   baptism and the Lord’s supper. Those would be the differences. We

 9   sing hymns. We sing Christian songs. We pray.”

10        One cannot read what Pastor Hall is saying – or for that

11   matter     virtually    any       religious       description        of     worship   –

12   sympathetically, without concluding that to worship is not only

13   more than    engaging       in    rituals,     but   that    it     is   categorically

14   different. In other words, it would be absurd to characterize the

15   Scouts as worshipping the teachings of Lord Baden-Powell, the

16   founder of the Scouts movement, simply because Scout ceremonies and

17   rituals ascribe worth to his message. What the Scouts are doing and

18   what worshippers do, are categorically different!


19                                            (iii)

20        Plaintiffs base their final argument – that there is no

21   difference between worship and other forms of religious speech –

22   on the Supreme Court’s ruling in Widmar v. Vincent, 454 U.S. 263

23   (1981).    Widmar    held    that    worship,        like    all    other    religious



                                              -32-
 1   expression, is protected under the Free Speech Clause of the First

 2   Amendment. Of course it is. The Widmar majority rejected the claim

 3   of the Justices in “dissent . . . that ‘religious worship’ is not

 4   speech generally protected by the ‘free speech’ guarantee,” 454

 5   U.S. at 269 n.6, and rightly so. But that is not the issue before

 6   us.

 7         The Widmar Court was concerned solely with whether worship was

 8   religious speech, and held that it was. The Court did not consider

 9   whether worship was speech of a unique sort, a subject of address

10   that transcended and was different in kind from the subjects whose

11   discussion from a religious viewpoint the Court protected in Good

12   News Club, Rosenberger, and Lamb’s Chapel. As a result, the Widmar

13   Court certainly did not conclude that the exclusion of worship

14   constituted viewpoint discrimination. It understandably held that

15   a   university’s   exclusion   of   “religious    worship   and   religious

16   discussion”   from   school    facilities   was   impermissible     content

17   discrimination in that public forum. 454 U.S. at 265, 269-70.

18   Consequently, plaintiffs’ invocation of Widmar to show that worship

19   cannot be a separate subject of speech is unavailing.

20

21           3. Must Worship be Religious?

22         The bulk of this opinion has been written on the premise that

23   worship is always a religious matter. But I am not sure there

24   cannot be secular as well as religious worship. When people speak


                                         -33-
 1   of “worshipping” mammon, sex, or art, are they simply speaking

 2   metaphorically, or are they expressing a relationship of adoration

 3   that is the secular equivalent of religious worship and is of a

 4   different order from participating in ritual or ceremony? While the

 5   answer to that question seems to me to be anything but clear, in

 6   the end a resolution does not matter for this decision.

 7        If we treat worship as being solely religious, then the first

 8   provision in the Board’s regulation – barring use of the school for

 9   “religious worship services” – is a trivial redundancy that does

10   not affect worship’s status as sui generis. If, instead, we treat

11   worship as something that can also be secular, then the Board’s

12   exclusion of religious (as against secular) worship is clearly

13   invalid. See Good News Club, 533 U.S. 98. But the second part of

14   the Board’s regulation, which bars use of the school “as a house of

15   worship,” nevertheless remains in force. For it excludes religious

16   and secular worship alike. Assuming arguendo, therefore, that

17   secular worship exists, that provision does not distinguish between

18   religious and secular approaches, but instead bars the whole

19   category. Accordingly, it constitutes content rather than viewpoint

20   discrimination.

21        The record is undisputed that plaintiffs wish to use the

22   school facilities as a house of worship. It follows that, if

23   content discrimination is permitted, then Bronx Household can be

24   excluded.


                                    -34-
                    Reasonableness of Content Discrimination
 1        D.
 2
 3             Content discrimination, even in a limited public forum, must

 4   be    reasonable    in   light   of   the   purposes   of   the   forum   to   be

 5   constitutionally permitted. Perry Educ. Ass’n, 460 U.S. at 49.

 6   Given our prior holdings, the Board’s exclusion of worship services

 7   from school facilities meets this requirement.

 8             In Bronx Household I, this court stated:

 9        We think that it is reasonable in this case for a state and a
10        school district to adopt legislation and regulations denying
11        a church permission to use school premises for regular
12        religious worship. We think that it is reasonable for state
13        legislators and school authorities to avoid the identification
14        of a middle school with a particular church. We think that it
15        is reasonable for these authorities to consider the effect
16        upon the minds of middle school children of designating their
17        school as a church. And we think that it is a proper state
18        function to decide the extent to which church and school
19        should be separated in the context of the use of school
20        premises for regular church services. Education, after all, is
21        a particularly important state function, and the use of school
22        premises is properly a matter of particular state concern.
23        Finally, it is certainly not unreasonable to assume that
24        church services can be undertaken in some place of public
25        assembly other than a public middle school in New York City.

26   127 F.3d at 214. We construed the purposes of the “school” limited

27   public forum in the same way in Deeper Life Christian Fellowship v.

28   Board of Education of the City of New York, 852 F.2d 676, 680 (2d

29   Cir. 1988); see also Deeper Life Christian Fellowship v. Sobol

30   [Deeper Life II], 948 F.2d 79, 83 (2d Cir. 1991) (“We follow our

31   prior opinion in Deeper Life I in holding that under § 414, ‘access

32   to the school property is permitted only where it serves the



                                           -35-
 1   interests of the public in general, rather than that of sectarian

 2   groups . . . .’”).

 3         Similarly, we rejected the claim of the Good News Club that

 4   its exclusion – even if it constituted only content discrimination

 5   – would be unreasonable because “there is little risk that children

 6   would confuse the Club’s use of school facilities with the school’s

 7   endorsement of the religious teachings.” We wrote:

 8       This argument is foreclosed by precedent. In Bronx Household
 9       of Faith, we stated that “it is a proper state function to
10       decide the extent to which church and school should be
11       separated in the context of the use of school premises.”
12       Furthermore, “it is reasonable for state legislators and
13       school authorities to avoid the identification of a . . .
14       school with a particular church.”

15   202 F.3d at 509 (quoting Bronx Household I, 127 F.3d at 214)

16   (internal citation omitted).

17         Although the Supreme Court reversed our holding that Milford’s

18   restriction was viewpoint neutral, the Court did not address our

19   conclusion that were the restriction only content-based, it would

20   be reasonable in light of the purposes of the limited school forum.

21   Accordingly, we remain bound by our finding in Bronx Household I

22   that the content-based restriction in SOP § 5.11 is reasonable.8

     8
1       Moreover, the record discloses several grounds on which
2    defendants’ exclusion of worship services, if only content-based,
3    can reasonably rest. First, defendants pointed to the concern that
4    “[b]ecause most activities that occur in schools during nonschool
5    hours are, in fact, sponsored by the school, . . . children are
6    unlikely to understand that weekly worship services are not
7    sponsored or supported by the school.” (Brief of Petitioners at
8    18); see also Declaration of Carmen Farina (testifying to
9    children’s confusion about the church’s relationship with the


                                     -36-
 1
 1   school district after the preliminary injunction compelled access);
 2   Declaration of Thomas Goodkind (same); Declaration of Veronica
 3   Najjar (same). Deputy Chancellor Fiorina testified that “[a]
 4   congregation’s presence in a school may be particularly confusing
 5   for children”:
 6     I know from my training and experience that children –
 7     especially elementary school or middle school children – . .
 8     . are unlikely to understand that a church that uses their
 9     school for its religious worship services is not sponsored or
10     supported by the school. . . . Young children . . . could
11     easily and understandably conclude that the religious
12     institution is supported by the school.
13        Second, defendants asserted that members of the community who
14   are not church members would feel “marginalized, confused, and shut
15   out by the long-term presence of weekly congregational worship
16   services in their local public school.” In this respect, the record
17   reflects many complaints sent to the Board by parents and other
18   community members expressing concerns that public school buildings
19   in their neighborhoods were becoming identified with the church and
20   its religious worship services. We need not resolve here how these
21   complaints would inform an examination of a putative challenge,
22   under the Establishment Clause, to the use of the school as a house
23   of worship. I take note of this concern only as it constitutes an
24   additional   reasonable   basis   for   defendants’   content-based
25   restriction of worship services given the purposes of this limited
26   forum.
27        Finally, it was reasonable for the Board to determine not to
28   open the use of its limited forum to a class of speech which, in
29   practice, could only be engaged by some but not all religions.
30   Defendants point out that “certain denominations and congregations
31   are shut out of the forum because their day of worship is not
32   Sunday.” (Reply Brief of Petitioners at 20). Schools are schools,
33   and are in session during all weekdays. Traditionally, and without
34   any view towards discriminating between one religion and another,
35   many school activities also take place on Saturdays. We need not
36   here concern ourselves with the historical reasons why the school
37   week is such as it is and the possible link to Christianity of that
38   schedule. That long has been settled. See, e.g., Gallagher v. Crown
39   Kosher Super Market of Mass., 366 U.S. 617 (1961); Two Guys from
40   Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961). As a
41   result, school facilities are only limitedly available during the
42   week or even on Saturday. That means that if the facilities are to
43   be used for worship, which in almost all religions takes place most
44   intensely on a particular day of the week, permission to use school
45   facilities for worship must, as a practical matter, favor Christian
46   over other     –  especially   Jewish   and   Muslim  –   religious


                                    -37-
1                                 III. CONCLUSION

2
3         I would hold that defendants’ exclusion of worship services

4   is   viewpoint   neutral.    Further,   seen    only   as   a   content-based

5   restriction, I would find that the exclusion is reasonable in light

6   of the purposes of the limited public forum involved. Given the

7   positions taken by the other members of this panel, however, my

8   disposition   is   limited   to   holding   that   the      district   court’s

9   permanent injunction and grant of summary judgment are VACATED, and

    the case is REMANDED for further developments.




1   organizations. We need not decide here whether this lack of
2   neutrality among religions would implicate a potential violation of
3   the Establishment Clause that would be sufficiently overriding as
4   to permit discrimination on the basis of viewpoint. For the
5   question now before us is not viewpoint discrimination, but simply
6   the existence of a reasonable justification for content-based
7   rules. And defendants’ desire to avoid seeming to favor some
8   religions is a reasonable ground for limiting this forum only to
9   speech that does not include the category “worship.”


                                       -38-
 1   LEVAL, Circuit Judge:

 2        This appeal is brought by the defendants, the             Board of

 3   Education of the City of New York (“the Board”) and Community

 4   School District No. 10 (“the School District”) (collectively, “the

 5   City” or “the City defendants”), from a permanent injunction

 6   entered by the District Court for the Southern District of New York

 7   (Preska, J.).   The injunction bars the City from enforcing a newly

 8   proposed   Standard   Operating   Procedure   §   5.11   (“Proposed   SOP

 9   § 5.11”) so as to exclude the plaintiff, Bronx Household of Faith

10   (“Bronx Household”), from using a City-owned school building for

11   Sunday church services. Proposed SOP § 5.11 would prohibit the use

12   of New York City public schools for “religious worship services”

13   or as a “house of worship.”       The district court, relying on the

14   Supreme Court’s ruling in Good News Club v. Milford Central School,

15   533 U.S. 98 (2001), found that the City’s enforcement of Proposed

16   SOP § 5.11 to deny Bronx Household permission to use school

17   facilities for its services would violate the First Amendment.

18        In ruling on the City defendants’ appeal from the judgment,

19   our court divides three ways.     Judge Walker would affirm, finding

20   that the district court was correct in enjoining enforcement of

21   Proposed SOP § 5.11.    Judge Calabresi would vacate the judgment,

22   finding it to be in error.    I would also vacate the judgment but

23   for a different reason, expressing no opinion whether the judgment

24   was based on a correct or incorrect perception of the substantive


                                       -39-
 1   standards of the First Amendment.      In my view, the judgment should

 2   be vacated because there was no ripe dispute between the parties

 3   involving the constitutionality of Proposed SOP § 5.11 which the

 4   court could appropriately adjudicate.

 5        At the time of the district court’s judgment, Bronx Household

 6   was suffering no harm by reason of the City’s proposed adoption of

 7   the new SOP.    The proposed rule had never been invoked by the City

 8   as a basis for denying Bronx Household access to school facilities.

 9   Indeed it had not even been adopted, but was only a proposed rule

10   that had been provisionally approved by City officials.          Rather,

11   a former version of SOP § 5.11 (“Old SOP § 5.11”) had been invoked

12   to   exclude    Bronx   Household    from   using   school   facilities.

13   Litigation over the exclusion under Old SOP § 5.11 had resulted in

14   a preliminary injunction prohibiting enforcement of that provision

15   to exclude Bronx Household.     Subsequently, in asking the district

16   court to make its final adjudication on the basis of the new

17   proposed SOP, rather than with regard to the SOP which had been

18   invoked in denying Bronx Household’s application, the City asserted

19   that, if the preliminary injunction against it were lifted and it

20   were granted summary judgment (effectively allowing the City to

21   exclude Bronx Household under the old standard), the City would

22   then invoke Proposed SOP § 5.11 to deny Bronx Household’s future

23   applications.    Given the contingent nature of the City’s stated

24   intentions, Proposed SOP § 5.11 may never be enforced against Bronx


                                         -40-
 1   Household.    Indeed, it may never be adopted.

 2          There was no present controversy between the parties involving

 3   application of the new standard.              The question whether the City

 4   might constitutionally exclude Bronx Household in reliance on

 5   Proposed SOP § 5.11 was speculative and hypothetical.                          In fact,

 6   notwithstanding the City’s prediction of how it would rule on an

 7   application    which    had    never       been    made,     there      is    sufficient

 8   difference between the new standard and the old rule upon which the

 9   City previously denied Bronx Household’s application as to leave

10   substantial uncertainty as to how such an application might play

11   out.

12          Especially in view of the undesirablity of rushing into

13   unnecessary        constitutional          adjudications,            the      sensitive

14   constitutional question of whether Proposed SOP § 5.11 violates the

15   First Amendment would be better adjudicated by a court after the

16   rule   has   been    adopted    and    an    administrative          proceeding        has

17   explicitly    confronted      and    ruled    on       its   applicability       to    the

18   activities    of    Bronx   Household.            No    party    would       suffer    any

19   meaningful harm if the court deferred adjudication until such time.

20   In   my view, the question whether the City could, consistent with

21   the First Amendment, exclude Bronx Household from using school

22   property under authority of Proposed SOP § 5.11 was therefore

23   unripe for adjudication.              Accordingly, I vote to vacate the

24   judgment.     See    National       Park    Hospitality         Ass’n    v.    Dep’t   of



                                            -41-
 1   Interior, 538 U.S. 803, 808 (2003) (“[T]he question of ripeness may

 2   be considered on a court’s own motion.”).
 3
 4                                  BACKGROUND

 5        New York Education Law § 414 authorizes local school boards

 6   to permit the use of school facilities by outside groups for, among

 7   other activities, “social, civic and recreational meetings and

 8   entertainments, and other uses pertaining to the welfare of the

 9   community,” as long as such meetings are “non-exclusive” and “open

10   to the general public.”   New York Educ. L. § 414(1)(c).    Pursuant

11   to this law, the Board of Education promulgated a written policy

12   permitting the use of school facilities by outside groups for these

13   “social, civic and recreational” meetings.        Standard Operating

14   Procedure § 5.6.2.     The written policy also included Standard

15   Operating Procedure (“SOP”) § 5.9, which prohibited the use of

16   school property for “religious services or religious instruction

17   on school premises after school.”1       Bronx Household of Faith v.

          1
 1            SOP § 5.9 provided:
 2
 3        No outside organization or group may be allowed to
 4        conduct religious services or religious instruction on
 5        school premises after school. However, the use of
 6        school premises by outside organizations or groups
 7        after school for the purpose[] of discussing religious
 8        material or material which contains a religious
 9        viewpoint or for distributing such material is
10        permissible.
11
12   Bronx Household of Faith v. Community School District No. 10, 127
13   F.3d 207, 210 (2d Cir. 1997).


                                       -42-
 1   Community School District No. 10, 127 F.3d 207, 210 (2d Cir. 1997)

 2   (“Bronx Household I”).

 3        Bronx Household describes itself as an “urban church whose

 4   primary purpose is to bring the Gospel of Jesus Christ to the

 5   streets   of    New   York.”      See    The     Bronx   Household   of   Faith,

 6   http://www.bhof.org/bhof1.html (last visited June 22, 2007).                 The

 7   current dispute between Bronx Household and the City began in 1994,

 8   when Bronx Household applied to use space in a middle school

 9   located in Community School District Number 10 for its Sunday

10   morning meetings.           Bronx Household I, 127 F.3d at 211; Bronx

11   Household of Faith v. Board of Education, 331 F.3d 342, 345 (2d

12   Cir. 2003) (“Bronx Household II”).             Concluding that the activities

13   described      in   Bronx    Household’s       application   would   constitute

14   “religious services or religious instruction” and would therefore

15   violate § SOP 5.9, the City denied Bronx Household’s application.

16   Bronx Household I, 127 F.3d at 211.

17        Bronx Household brought suit to challenge the denial.                   The

18   district court found no First Amendment violation and thus granted

19   summary judgment in favor of the Board and School District.                Bronx

20   Household of Faith v. Community School Dist. No. 10, No. 95 Civ.

21   5501, 1996 WL 700915, at *6 (S.D.N.Y. Dec. 5, 1996).                 On appeal,

22   we affirmed the judgment.        Bronx Household I, 127 F.3d at 217.          We

23   found that the Board and School District had created a limited

24   public forum by opening school facilities only to certain types of


                                             -43-
 1   speakers and subjects, and that the exclusion of religious services

 2   and religious instruction was viewpoint neutral and reasonable in

 3   light of the purposes served by the forum.               Id. at 211-15; see also

 4   id. at 215 (“[R]eligious worship services may well be considered

 5   the ultimate in speech from a religious viewpoint in an open forum.

 6   But the question is whether a distinction can be drawn between it

 7   and other forms of speech from a religious viewpoint that District

 8   # 10 has elected to allow in the limited forum of a public middle

 9   school.      We think it can.”).

10          The Supreme Court denied certiorari, Bronx Household of Faith

11   v. Board of Education, 523 U.S. 1074 (1998), and the dispute then

12   lay dormant for some years.              It was resurrected in 2001, after the

13   Supreme Court issued its decision in Good News Club, which was

14   arguably incompatible with our decision in Bronx Household I.

15          In Good News Club, the Supreme Court ruled                    that it was

16   unconstitutional for another school district in the State of New

17   York    to    exclude    from      its     facilities    a   “private    Christian

18   organization for children ages 6 to 12” which had requested

19   permission to use the school during afterschool hours to sing

20   songs, read Bible lessons, memorize scripture, and pray.                   533 U.S.

21   at 103.       Milford Central School had enacted a “community use

22   policy”      similar    to   the   City’s     Standard   Operating      Procedures,

23   whereby school facilities could be used for “social, civic and

24   recreational meetings and entertainment events, and other uses


                                                -44-
 1   pertaining to the welfare of the community, provided that such uses

 2   shall be nonexclusive and shall be opened to the general public,”

 3   but could not be used “by any individual or organization for

 4   religious purposes,” which school district officials interpreted

 5   as prohibiting “religious worship” or “religious instruction.” Id.

 6   at 103-04 (quotation marks omitted).    Noting that “any group that

 7   ‘promote[s] the moral and character development of children’ is

 8   eligible [under Milford’s policies]    to use the school building,”

 9   and that “the [Good News] Club teaches morals and        character

10   development to children,” albeit from “a religious standpoint,” the

11   Court concluded that exclusion of the Good News Club from school

12   facilities was unconstitutional viewpoint discrimination, id. at

13   108-10 (first alteration in original).

14        Taking comfort from the Supreme Court’s decision in Good News

15   Club, Bronx Household again requested to use school facilities for

16   Sunday services.    Bronx Household II, 331 F.3d at 346.       The

17   application was again denied, pursuant to the same SOP (since

18   renumbered as § 5.11).    Id. at 346-48.     Bronx Household again

19   brought suit to challenge the denial. This time the district court

20   granted a preliminary injunction, provisionally requiring the City

21   defendants to allow Bronx Household to use the school during the

22   pendency of the litigation.   Bronx Household of Faith v. Board of

23   Education, 226 F. Supp. 2d 401, 427 (S.D.N.Y. 2002).    On appeal,

24   we affirmed the preliminary injunction. Bronx Household II, 331


                                    -45-
 1   F.3d at 354.

 2         Bronx Household then moved in the district court for summary

 3   judgment to convert the preliminary injunction into a permanent

 4   ruling.     The City cross-moved for summary judgment in its favor.

 5   Up to this point, all adjudications had been with reference to SOP

 6   § 5.9, renumbered as SOP § 5.11 (in other words, Old SOP § 5.11).

 7   The City, however, wrote to the district court advising that the

 8   City “seek[s] to implement a policy with language that varies from

 9   the policy language that has been preliminarily enjoined.”                 The

10   City explained that in contrast with the old rule, which prohibited

11   use   of   school    property   for    “religious   services    or   religious

12   instruction,” the Proposed SOP § 5.11 would prohibit use of school

13   property for “religious worship services, or otherwise using a

14   school as a house of worship.”2         The City told the court that with

15   respect to the motions for summary judgment, the City would be

16   defending the new policy.             The district court expressed doubt

17   whether,     given    Article   III’s     limitations   on     federal   court

           2
 1             Proposed SOP § 5.11 provides:
 2
 3         No permit shall be granted for the purpose of holding
 4         religious worship services, or otherwise using a school
 5         as a house of worship. Permits may be granted to
 6         religious clubs for students that are sponsored by
 7         outside organizations and otherwise satisfy the
 8         requirements of this chapter on the same basis that
 9         they are granted to other clubs for students that are
10         sponsored by outside organizations.
11
12   Bronx Household of Faith v. Board of Educ. of City of New York,
13   400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005).


                                            -46-
 1   jurisdiction, it could properly rule on the constitutionality of

 2   a proposed SOP, which had not been invoked against Bronx Household.

 3   Seeking to allay the court’s doubts, the City explained in a

 4   letter:

 5            Should [the City] defendants prevail in their motion for
 6            summary judgment and the preliminary injunction Order be
 7            vacated, then any future application by [Bronx
 8            Household] to hold their worship services at P.S. 15 .
 9            . . will be denied [pursuant to the proposed SOP].
10
11   Bronx Household of Faith v. Board of Educ. of City of New York

12   (“Bronx Household III”), 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005)

13   (quoting the City’s letter of August 17, 2005).3                   The district

14   court     was   thereby   persuaded    that    it    was    presented    with   a

15   justiciable controversy involving the application of Proposed SOP

16   § 5.11.     The court then granted summary judgment in favor of Bronx

17   Household,      permanently   enjoining      the   City    from   enforcing   the

18   proposed SOP against Bronx Household.               Id. at 601.         The City

19   defendants then brought this appeal.

          3
 1              The letter stated:
 2
 3        Plaintiffs’ use of P.S. 15 for the Bronx Household of
 4        Faith’s regular worship services is prohibited under
 5        the revised section 5.11. Defendants are not currently
 6        enforcing the revised section 5.11 (or advising the
 7        field of this change) because of the preliminary
 8        injunction Order that was entered in this case. Should
 9        defendants prevail in their motion for summary judgment
10        and the preliminary injunction Order be vacated, then
11        any future application by plaintiffs to hold their
12        worship services at P.S. 15 or any other school will be
13        denied.
14
15   Bronx Household III, 400 F. Supp. 2d at 588.


                                           -47-
 1                                  DISCUSSION

 2         In my view, the district court’s first instincts were sound,

 3   and the court was led astray by the City’s speculation on possible

 4   future adoption and enforcement of the proposed SOP.          In my view,

 5   no ripe dispute involving the enforcement of Proposed SOP § 5.11

 6   was before the court.

 7

 8   I.    Principles of Standing and Ripeness That Apply to This Case

 9         Article III of the Constitution limits the judicial power of

10   the   federal   courts   to    the    adjudication    of     “cases”    and

11   “controversies.”     Aspects   of    this   generalized    limitation   are

12   classified in terms of whether a plaintiff has standing, or whether

13   a dispute is ripe.

14         Although standing itself has multiple aspects, see Flast v.

15   Cohen, 392 U.S. 83, 99 (1968) (noting that standing has been called

16   one of the most amorphous concepts in public law), its “core

17   component” is that, in order to have claims adjudicated by a

18   federal court, the plaintiff     “must allege personal injury fairly

19   traceable to the defendant’s allegedly unlawful conduct and likely

20   to be redressed by the requested relief,” Allen v. Wright, 468 U.S.

21   737, 751 (1984).   While the requirements implicit in the notion of

22   “injury” are “not susceptible of precise definition,” id., they

23   have been described in terms of whether the plaintiff has a

24   “personal stake in the outcome,” and whether the injury in question


                                         -48-
 1   is “particular [and] concrete,” and whether it results “direct[ly]”

 2   from the defendant’s actions, United States v. Richardson, 418 U.S.

 3   166,   179-80       (1974)    (quotation       marks   omitted).          “It   is   an

 4   established principle that to entitle a private individual to

 5   invoke   the    judicial       power   [of     the   United   States      courts]    to

 6   determine the validity of executive or legislative action he must

 7   show   that    he    has     sustained    or    is   immediately     in     danger   of

 8   sustaining a direct injury as the result of that action and it is

 9   not sufficient that he has merely a general interest common to all

10   members of the public.” Id. at 177-78 (quoting Ex parte Levitt, 302

11   U.S. 633, 634 (1937) (quotation marks omitted)).

12          Ripeness     overlaps     in    some    respects   with   standing,      “most

13   notably in the shared requirement that the [plaintiff’s] injury be

14   imminent rather than conjectural or hypothetical,” Brooklyn Legal

15   Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2d Cir.

16   2006), and courts at times use either term to refer to this

17   requirement.         Nonetheless,        the   central    concerns     of    ripeness

18   doctrine are somewhat distinct from standing.                    Standing, in its

19   “fundamental aspect,” “focuses on the party seeking to get his

20   complaint before a federal court” and whether that party suffers

21   a sufficiently direct and concrete injury to be heard in complaint.

22   Flast, 392 U.S. at 99.           By contrast, the fundamental concern of

23   ripeness is whether at the time of the litigation the issues in the

24   case are “‘fit’ for judicial decision.”                National Park Hospitality


                                              -49-
 1   Ass’n v. Dep’t of the Interior, 538 U.S. 803, 814 (2003) (Stevens,

 2   J., concurring); see also Regional Rail Reorganization Act Cases,

 3   419 U.S. 102, 140 (1974) (“ripeness is peculiarly a question of

 4   timing”).   The concept of ripeness assumes that the relationship

 5   between the parties might at some point ripen into an injury

 6   sufficiently direct and realized to satisfy the requirements of

 7   Article III standing.   It recognizes, however, that some disputes

 8   mature in stages, going through preliminary phases during which the

 9   injury is as yet but a speculative possibility, too remote or

10   hypothetical to warrant present submission to a federal court.

11   Such a dispute is considered as yet “unripe” for adjudication.

12        In the present dispute, there can be no doubt that if the City

13   were to reject Bronx Household’s application to use school property

14   on the ground that such use would violate Proposed SOP § 5.11,

15   Bronx Household’s claim that such a rejection violates the First

16   Amendment would fully satisfy the requirements of standing and

17   ripeness. In those circumstances, the City’s invocation of its SOP

18   to deny a permit would be causing an immediate, direct, and

19   concrete injury to Bronx Household.     The concern I express is

20   whether any dispute over the application of Proposed SOP § 5.11 has

21   as yet caused any ripe injury to Bronx Household.    I accordingly

22   will focus in the following discussion on those decisions which

23   concern the ripeness of the dispute, regardless of whether they

24   speak in terms of “ripeness” or of “standing.”


                                    -50-
 1          In its leading case on these concerns, Abbott Laboratories v.

 2   Gardner, the Supreme Court explained that the “basic rationale” of

 3   the doctrine     of ripeness is to “prevent the courts, through

 4   avoidance of premature adjudication, from entangling themselves in

 5   abstract disagreements” and to prevent “judicial interference”

 6   until the effects of a defendant’s actions are “felt in a concrete

 7   way” by the plaintiffs.           Abbott, 387 U.S. 136, 148-49 (1967),

 8   overruled on other grounds, Califano v. Sanders, 430 U.S. 99

 9   (1977).      As outlined in Abbott, the ripeness inquiry generally

10   requires a federal court to consider “the fitness of the issues for

11   judicial decision and the hardship to the parties of withholding

12   court consideration.”      Id. at 149.

13          The plaintiffs in Abbott, who were proprietary pharmaceutical

14   manufacturers,     brought    a     challenge      to   a   Food    and     Drug

15   Administration     regulation      which    required    that   each    time     a

16   proprietary drug’s brand name appeared on a label, the generic name

17   had to be given as well.     Id. at 138.         The regulations, which were

18   already in effect when the plaintiffs brought suit but had not been

19   enforced against the plaintiffs in any way, carried heavy potential

20   criminal and civil sanctions for violations.            Id. at 151-52.        The

21   Court found that the claim was ripe for adjudication.                 It noted

22   that   the    question   presented    was    a    “purely   legal   one,”     the

23   regulation constituted “final agency action” within the meaning of

24   the Administrative Procedures Act, id. at 149 (quotation marks


                                          -51-
 1   omitted), and the impact of the regulations on the plaintiffs was

 2   “sufficiently      direct     and    immediate    as     to    render     the    issue

 3   appropriate for judicial review,” id. at 152.                  In particular, the

 4   Court noted that the regulation’s mere existence put the plaintiffs

 5   “in a dilemma” – they had to either comply with the regulations,

 6   incurring substantial economic costs to alter their labeling in a

 7   manner likely to harm their sales, or risk severe sanctions.                       Id.

 8   For more or less the same reasons, the Court found that the

 9   plaintiffs had standing to sue.            Id. at 154.

10         On the same day, the Supreme Court dismissed a companion case,

11   Toilet Goods Association v. Gardner, 387 U.S. 158 (1967), which

12   illustrates the flip-side of the coin.            The plaintiffs, a group of

13   cosmetics    manufacturers,         challenged    an     FDA    regulation       which

14   required the plaintiffs to grant the agency access to inspect their

15   manufacturing facilities, processes, and formulae.                      Id. at 161.

16   The FDA had as yet made no demand under the regulations for access

17   to   the   plaintiffs’       facilities.      A    number       of     questions    of

18   application       remained    unresolved,     including         what     enforcement

19   problems    the     FDA   had   encountered       that    would        justify    such

20   inspections, the reasons that the FDA Commissioner might give to

21   justify a particular order of inspection, and the safeguards the

22   agency would devise to protect trade secrets.                  Id. at 163-64.      The

23   Court dismissed the case as unripe, explaining: “We believe that

24   judicial appraisal of these factors is likely to stand on a much


                                            -52-
 1   surer footing in the context of a specific application of this

 2   regulation    than   could   be   the   case    in   the    framework   of   the

 3   generalized challenge made here.”              Id. at 164.         Of special

 4   importance, the Court noted the lack of “hardship” to the parties

 5   from postponing judicial review until “more light may be thrown on

 6   the Commissioner’s statutory and practical justifications for the

 7   regulation”: “This is not a situation in which primary conduct is

 8   affected . . . . [N]o advance action is required . . . [and] no

 9   irremediable adverse consequences flow from requiring a later

10   challenge.”    Id. at 164.

11        In Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993),

12   a class of alien plaintiffs challenged certain Immigration and

13   Naturalization Service regulations which had raised barriers to an

14   undocumented alien’s ability to obtain authorization for permanent

15   residency.    The Court found the issues presented to be unripe (at

16   least as to some plaintiffs) largely because the regulations at

17   issue, as in Toilet Goods, “impose[d] no penalties for violating

18   any newly imposed restriction,” but rather “limit[ed] access to a

19   benefit . . . not automatically bestowed on eligible aliens.”                Id.

20   at 58 (emphasis added).      In other words, a plaintiff’s claim was

21   unripe unless the alien had taken all possible steps to gain access

22   to the immigration benefit, and had been denied the benefit on

23   account of the disputed regulation.            Id. at 59.

24        Particularly illustrative is National Park Hospitality Ass’n


                                         -53-
 1   v. Department of the Interior, 538 U.S. 803 (2003). The plaintiff,

 2   an association of concessioners doing business in national parks,

 3   sought pre-enforcement review of whether a National Park Service

 4   regulation could exclude concession contracts from the protective

 5   reach of the Contract Disputes Act of 1978.    Id. at 804-05.    The

 6   Court concluded that the plaintiff’s claims were not yet ripe.    As

 7   in Toilet Goods, the Court noted the lack of hardship to the

 8   parties from delaying review, given that the regulation does not

 9   “command anyone to do anything or to refrain from doing anything,”

10   does not “grant, withhold, or modify any formal legal license,

11   power, or authority,” does not “subject anyone to any civil or

12   criminal liability,” and creates “no legal rights or obligations.”

13   Id. at 809 (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S.

14   726, 733 (1998) (quotation marks omitted)).   The Court also found

15   the issue unfit for judicial review, given the parties’ explicit

16   or implicit acknowledgment that different types of concession

17   contracts might present different legal questions.     Id. at 812.

18   As a result, the Court found that “further factual development

19   would ‘significantly advance our ability to deal with the legal

20   issues presented,’” and therefore adjudication should “await a

21   concrete dispute about a particular concession contract.”        Id.

22   (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438

23   U.S. 59, 82 (1978)).

24        The concurring and dissenting Justices in National Park agreed


                                    -54-
 1   with the framework of the majority’s ripeness analysis, while

 2   disagreeing   with    some   of    the    majority’s    conclusions.           The

 3   concurring opinion would have found that the case was ripe for

 4   review but that the plaintiff lacked standing.              See National Park,

 5   538 U.S. at 814-17 (Stevens, J., concurring).                 Justice Breyer’s

 6   dissenting opinion would have found that the dispute satisfied both

 7   standing and ripeness requirements.           In his view, the challenged

 8   regulation “causes a present injury” that is “immediate” and

 9   “concrete,” in the form of higher contract implementation costs

10   which force concessioners bidding for government contracts to pay

11   more to obtain a contract than they believe it is worth.                    Id. at

12   818-19 (Breyer, J., dissenting).

13        In concluding that a case is “unripe,” courts often mean that

14   the dispute has not yet matured into a “case” or “controversy”

15   within the meaning of Article III, so that the court is without

16   jurisdiction to enter judgment.          See, e.g., Marchi v. Bd. of Coop.

17   Educ. Servs., 173 F.3d 469, 478 (2d Cir. 1999) (describing and

18   applying   ripeness     analysis   as    a   constitutional      prerequisite,

19   without    discussing    prudential      concerns).         Courts   have    also,

20   however, invoked the ripeness doctrine to justify dismissal in

21   circumstances    where    adjudication       would    not    necessarily      have

22   exceeded the courts’ constitutional power but the prospect of

23   injury was nonetheless sufficiently remote or conjectural that the

24   court considers it prudent not to exercise jurisdiction until the


                                         -55-
 1   dispute has further ripened to produce a more palpable injury.

 2   See, e.g., Simmonds v. I.N.S., 326 F.3d 351, 358, 361 (2d Cir.

 3   2003) (finding that plaintiff’s claims “surely present a live case

 4   or controversy,” but dismissing the petition on the grounds of

 5   prudential unripeness).          Although in many cases courts fail to

 6   employ      a    strict   taxonomy   distinguishing    constitutional     from

 7   prudential considerations, see, e.g., National Park, 538 U.S. at

 8   808 (noting simply that ripeness doctrine derives from Article III

 9   and       from    prudential    considerations),       other     courts   have

10   distinguished        “prudential     unripeness”      from     “constitutional

11   unripeness,” see Simmonds, 326 F.3d at 357.4
           4
 1           In Simmonds we explained these two aspects of ripeness as
 2   follows:
 3
 4             These two forms of ripeness are not coextensive in
 5             purpose. Constitutional ripeness is a doctrine that,
 6             like standing, is a limitation on the power of the
 7             judiciary. It prevents courts from declaring the
 8             meaning of the law in a vacuum and from constructing
 9             generalized legal rules unless the resolution of an
10             actual dispute requires it. But when a court
11             declares that a case is not prudentially ripe, it
12             means that the case will be better decided later and
13             that the parties will not have constitutional rights
14             undermined by the delay. It does not mean that the
15             case is not a real or concrete dispute affecting
16             cognizable current concerns of the parties within the
17             meaning of Article III. Of course, in deciding
18             whether “better” means later, the court must consider
19             the likelihood that some of the parties will be made
20             worse off on account of the delay. But that, and its
21             degree, is just one – albeit important – factor the
22             court must consider. Prudential ripeness is, then, a
23             tool that courts may use to enhance the accuracy of
24             their decisions and to avoid becoming embroiled in
25             adjudications that may later turn out to be
26             unnecessary or may require premature examination of,


                                           -56-
 1        The ripeness principles elaborated in the foregoing cases

 2   bear heightened importance when, as in the present case, the

 3   potentially     unripe     question       presented      for   review   is   a

 4   constitutional question.          “If there is one doctrine more deeply

 5   rooted   than    any     other    in     the   process    of   constitutional

 6   adjudication, it is that we ought not to pass on questions of

 7   constitutionality . . . unless such adjudication is unavoidable.”

 8   Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944).

 9   The principle of constitutional avoidance is an integral part of

10   the ripeness analysis in such cases, and tilts the balance in

11   favor of finding a constitutional issue unripe for review.              Poe v.

12   Ullman, 367 U.S. 497, 503-04 (1961) (“The various doctrines of

13   ‘standing,’ ‘ripeness,’ and ‘mootness’ . . . are but several

14   manifestations – each having its own ‘varied application’ – of the

15   primary conception that federal judicial power is to be exercised

16   to strike down legislation, whether state or federal, only at the

17   instance of one who is himself immediately harmed, or immediately

18   threatened    with   harm,   by    the    challenged     action.”   (footnotes

19   omitted)).      In cases involving the constitutionality of state

1          especially, constitutional issues that time may make
2          easier or less controversial.
3
4    Simmonds, 326 F.3d at 357. It is unclear to me why the Simmonds
5    Court believed that prudential ripeness requires that the parties
6    “will not have constitutional rights undermined by the delay.”
7    In my view, the undermining of any rights, and not only
8    constitutional rights, argues against a finding of unripeness.
9


                                            -57-
 1   legislation the Supreme Court has therefore warned federal courts

 2   to consider, before passing on the merits of the question, whether

 3   “questions of construction, essentially matters of state law,

 4   remain unresolved or highly ambiguous.”      Rescue Army v. Municipal

 5   Court of City of Los Angeles, 331 U.S. 549, 568, 574 (1947); cf.

 6   Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997)

 7   (“Warnings   against   premature     adjudication   of   constitutional

 8   questions bear heightened attention when a federal court is asked

 9   to invalidate a State’s law, for the federal tribunal risks

10   friction-generating error when it endeavors to construe a novel

11   state Act not yet reviewed by the State’s highest court.”).

12   Jurisdiction should be exercised in such cases only when the

13   constitutional issues are presented “in clean-cut and concrete

14   form, unclouded by any serious problem of construction.”         Rescue

15   Army, 331 U.S. at 584.

16

17                II.    Adjudication of Proposed SOP § 5.11

18        The circumstances confronted by the district court when asked

19   to rule on the constitutionality of Proposed SOP § 5.11 are those

20   which have led courts to the conclusion that the case was unripe

21   for adjudication.

22

23

24


                                        -58-
 1    A.    Lack of Present Harm to the Party Opposing the Regulation

 2          To start with two obvious propositions: (1) There is without

 3   question a ripe controversy between the parties involving the

 4   application of Old SOP § 5.11 to bar Bronx Household from using

 5   school property.      The fact, however, that one controversy between

 6   the parties is ripe for adjudication does not mean that all

 7   disputes between the parties present ripe questions.                 Without

 8   doubt the district court could properly have entered a final

 9   judgment on the constitutionality of Old SOP § 5.11.               It is the

10   adjudication of the constitutionality of the new proposed SOP that

11   is problematic.       (2) Had Proposed SOP § 5.11 been invoked by the

12   City as the basis for denying Bronx Household use of school

13   property, Bronx Household would have standing to challenge its

14   constitutionality, and the dispute would be ripe for adjudication.

15   This, however, has not happened.         In fact, it appears the proposed

16   SOP has not even been adopted, and that the City is awaiting the

17   court’s judgment on its constitutionality before adopting it.

18          Not only has the City never relied on Proposed SOP § 5.11 to

19   deny Bronx Household’s application, but Bronx Household has never

20   even   applied   to    use    school   property   under   the   standards   of

21   Proposed SOP § 5.11.         Bronx Household has been excluded under the

22   standards of the predecessor SOP and has obtained a preliminary

23   injunction granting it provisional access to school property on

24   the basis of the probable unconstitutionality of that SOP.                  At


                                            -59-
 1   present Bronx Household is therefore not being excluded from the

 2   schools at all, much less by reason of the proposed SOP.

 3        I recognize that a regulation can cause harm to a covered

 4   entity even without being enforced.         Thus in Abbott the Supreme

 5   Court found that the FDA’s labeling regulation caused actual harm

 6   to covered drug manufacturers even without being enforced, because

 7   the manufacturer was required either to adopt a disadvantageous

 8   change   in   its   labeling   practices   or    risk   incurring   serious

 9   penalties and liabilities.       See Abbott, 387 U.S. at 153 (“[W]here

10   a regulation requires an immediate and significant change in the

11   plaintiffs’    conduct   of    their   affairs   with   serious   penalties

12   attached to noncompliance, access to the courts . . . must be

13   permitted . . . .”); see also AT&T Corp. v. Iowa Utilities Bd.,

14   525 U.S. 366, 386 (1999) (“When . . . there is no immediate effect

15   on the plaintiff’s primary conduct, federal courts normally do not

16   entertain pre-enforcement challenges . . . .”); Texas v. United

17   States, 523 U.S. 296, 301 (1998) (no “hardship” because plaintiff

18   “is not required to engage in, or to refrain from, any conduct”).

19   And in National Park, the majority and the dissent disagreed over

20   whether the obligation on would-be concessioners to increase their

21   bids in anticipation of increased operating costs resulting from

22   the questioned regulation caused sufficient injury to confer

23   ripeness on the concessioners’ challenge to the regulation.

24        Here, the City’s proposed adoption of a new SOP causes no


                                        -60-
 1   such harm to Bronx Household.          Even if the proposed SOP had been

 2   adopted, Bronx Household would not be obligated by it to amend its

 3   practices in any way.            The provision would not command Bronx

 4   Household to do anything or to refrain from doing anything, nor

 5   would it grant, withhold, or modify any legal license, power, or

 6   authority, nor would it subject Bronx Household to civil or

 7   criminal liability.        See National Park, 538 U.S. at 809.              The

 8   proposed SOP would merely create a possibility that at some future

 9   time, it may cause Bronx Household to be excluded from use of the

10   schools – at which time Bronx Household could challenge its

11   constitutionality.         See Simmonds, 326 F.3d at 360 (“The mere

12   possibility of future injury, unless it is the cause of some

13   present detriment, does not constitute hardship.”).

14

15              B.     Lack of Harm to Either Party from Delay

16        Among the factors courts examine to determine ripeness is

17   whether either party to the dispute would be harmed by delaying

18   adjudication until the dispute ripens.               I think it clear that

19   neither   party   would     be   harmed    by   delay   in   adjudicating   the

20   constitutionality     of    Proposed      SOP   §   5.11.    Bronx   Household

21   continues to be protected by the preliminary injunction, and there

22   is no impediment to the entry of final judgment relating to the

23   SOP that was actually enforced against it (Old SOP § 5.11).                 The

24   City will suffer no harm if adjudication of the constitutionality


                                          -61-
 1   of Proposed SOP § 5.11 awaits such time as it is actually adopted

 2   and invoked.      The parties may find it convenient to get this

 3   resolved now.    But loss of such convenience is not sufficient harm

 4   to   make   a   hypothetical   future    dispute   ripe   for   immediate

 5   adjudication.

 6        In a deviation from the conventional pattern, it is the

 7   governmental entity sponsoring the regulation, rather than the

 8   person potentially affected, that has asked that the lawfulness of

 9   the regulation be immediately adjudicated. However, the City is

10   not barred from vindicating its governmental interest by adopting

11   and enforcing the proposed standard against Bronx Household.          The

12   preliminary injunction, which was in effect when the parties

13   cross-moved for summary judgment, barred the City from excluding

14   Bronx Household under the old rule.      It did not purport to bar the

15   City from adopting or enforcing different standards.5
          5
 1           The preliminary injunction barred the defendant “from
 2   enforcing the [Old SOP § 5.11] so as to deny plaintiffs’
 3   application.” It contained no suggestion that the City was
 4   barred from adopting or enforcing a new, different standard.
 5   The Order stated:
 6
 7        It is hereby ordered, adjudged and decreed that, for
 8        the reasons set forth in the Opinion dated June 26,
 9        2002, defendants are hereby enjoined from enforcing the
10        New York City Board of Education’s Standard Operating
11        Procedure § 5.11 [Old SOP § 5.11] so as to deny
12        plaintiffs’ application to rent space in a public
13        school operated by the Board of Education for morning
14        meetings that include religious worship or the
15        application of any similarly-situated individual or
16        entity.
17
18   (Although this has little or no bearing on the present


                                       -62-
 1        When   the   City’s   attorney   expressed   a   concern   that   the

 2   preliminary injunction might bar the City from enforcing the new

 3   policy, the district court judge responded,“I don’t recall that

 4   the injunction prohibited the [Department of Education] from

 5   changing its policy.”      If the City still entertained doubts about

 6   a risk of contempt, it could have sought further assurance from

 7   the district court.6

 8        By asking the court to rule on the constitutionality of a

 9   policy that had neither been enforced nor even adopted, the City

10   was essentially asking for an advisory ruling on courses of action

11   it had contemplated but not taken.       The City was asking the court:

 1   dispute, I question the appropriateness of the district
 2   court’s grant of injunctive relief barring the City not only
 3   from denying the application of the plaintiffs, but also
 4   from denying the application of “any similarly-situated
 5   individual or entity.”   Assuming such an order may be
 6   proper in some circumstances (even absent class
 7   certification), cf. Galvan v. Levine, 490 F.2d 1255, 1261
 8   (2d Cir. 1973), I believe it was not appropriate in this
 9   case, at least without the court also giving a reasonably
10   precise definition of the meaning of “similarly-situated.”
11   There are many grounds upon which the City might reject
12   another entity’s permit application, which might raise
13   altogether different issues than those involved in Bronx
14   Household’s case. A defendant ought not to be subjected to
15   the risk of contempt without a reasonably clear delineation
16   of the circumstances in which the defendant is forbidden to
17   act.)
18
          6
 1           In the unlikely event that the district court would have
 2   advised the City that the court would regard such action as a
 3   violation of the injunction, the City would then have been armed
 4   with an argument supporting ripeness to adjudicate the
 5   constitutionality of the new SOP, as the City would then have
 6   been harmed by denial of the opportunity to enforce the new
 7   standard pending final adjudication of the constitutionality of
 8   the old.


                                       -63-
 1   if the City adopts the proposed SOP, and if Bronx Household

 2   applies to use school space under that new provision, and if the

 3   City denies that permit application on the grounds that Bronx

 4   Household plans to use the school space for “worship,” would that

 5   denial be constitutional?   To answer would be to give an advisory

 6   opinion on a hypothetical question.

 7

 8                     C.   Fitness For Adjudication

 9        The circumstances that have led courts to find that issues

10   are unfit for adjudication are present here.       The proposed SOP,

11   focusing on the exclusion of “worship,” has played no role in the

12   exclusion of Bronx Household from use of the school facilities.

13   Furthermore, adjudication of the constitutionality of the new SOP

14   would be illuminated by the resolution of questions that will

15   inevitably come into play if and when the City enforces the

16   proposed SOP upon Bronx Household’s application.          See Toilet

17   Goods, 387 U.S. at 164.   In Toilet Goods, Reno, and National Park,

18   the Supreme Court determined that adjudication of the legal

19   question was unripe in part because the adjudication would benefit

20   from having the “factual components fleshed out” by “some concrete

21   actions applying the regulation.”      National Park, 538 U.S. at 808

22   (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 891

23   (1990) (quotation marks omitted)).

24        The same considerations apply here.     It is impossible to know


                                     -64-
 1   at   this   stage      exactly   how   the      process   of   Bronx   Household’s

 2   application and the City’s ruling will play out when so much

 3   remains     uncertain.        For   starters,      how    will    Bronx   Household

 4   describe its proposed activities in an application designed to

 5   secure admission under this policy focused on worship?                    One cannot

 6   assume that a new application seeking approval under the new SOP

 7   will be formulated in the same terms as Bronx Household’s previous

 8   applications, which were addressed to different standards.                       The

 9   term “worship,” which did not appear in the old SOP but is central

10   to the new one, is of uncertain meaning.                  I recognize that, when

11   worship was not determinative, Bronx Household described the

12   activities for which it sought permission as “worship.”                     It will

13   not necessarily continue to do so when seeking admission under a

14   rule which explicitly excludes “worship.”                 In any event, what will

15   matter    on   a     new   application    is     not   whether    Bronx   Household

16   considers      its    activities    to    be     “worship,”      but   whether   its

17   activities are “worship” within the meaning of the City’s new SOP.

18   It is uncertain how the City will interpret its new criterion.

19   Will the City formulate guidelines to help determine what does and

20   what does not constitute forbidden worship?                    How will the City

21   define the term in passing on applications?

22         After the Supreme Court’s decision in Good News Club, the

23   constitutional significance of “worship” is far from clear.                      In a

24   footnote responding to Justice Souter’s observation in dissent


                                              -65-
 1   that the Good News Club’s activities added up to “an evangelical

 2   service of worship,” the majority asserted that the activities “do

 3   not constitute mere religious worship, divorced from any teaching

 4   of moral values.”       Good News Club, 533 U.S. at 112 n.4 (emphasis

 5   added); see also id. at 138 (Souter, J., dissenting).                      Later in

 6   the   same    footnote,     the   Court    acknowledged       Justice      Souter’s

 7   characterization       of   the   Club’s    activities      as   “worship,”       but

 8   responded simply that “[r]egardless of the label Justice Souter

 9   wishes to use, what matters is the substance of the Club’s

10   activities . . . .”         Id. at 112 n.4.

11         The Court’s insistence that Good News Club’s activities did

12   not constitute “mere worship” seems to indicate that the Court

13   attaches constitutional significance to whether “worship” was

14   involved, and may even suggest, as Judge Calabresi notes, that the

15   Supreme   Court   will      ultimately     conclude    that      worship    may    be

16   excluded, while associated teaching of moral values may not.                      See

17   Calabresi Op., supra at 26. Otherwise, there would be little point

18   in distinguishing the Club’s activities from “mere worship.”                      On

19   the   other    hand,   the    Court’s      dismissal   of     Justice      Souter’s

20   characterization of the activities as “worship” as essentially

21   irrelevant may suggest it is constitutionally irrelevant whether

22   an applicant to use public school facilities intends to conduct

23   worship services. Cf. Walker Op., post at 93.

24         When and if the City faces Bronx Household’s application to


                                          -66-
 1   use school facilities under Proposed SOP § 5.11, given the City’s

 2   obligation to act consistently with the Constitution, it will need

 3   to    interpret    the    Supreme      Court’s       First      Amendment    position.

 4   Perhaps by that time the Supreme Court will have given additional

 5   guidance.        The    City   will    have     to    determine      the    meaning    of

 6   “worship” as used in the new SOP, and do so in consideration of

 7   whatever light new court rulings may have shed on the puzzling

 8   ambiguities of the footnote in Good News Club.                     Before a federal

 9   court adjudicates whether the City’s exclusion of “worship” is

10   constitutionally permissible, it would be useful to know how the

11   City construes excluded “worship,” and the best way to find out is

12   to wait until the City relies on its rule to deny an application.

13   Until the City denies Bronx Household’s application based on a

14   policy forbidding “worship,” there is no ripe question of the

15   constitutionality of such an action.

16          Because    the    central      question       in   the   dispute     is   one   of

17   constitutionality, the importance of the conclusion that the

18   present dispute is not yet fit for adjudication is heightened by

19   the   general     rule    counseling      against         deciding    constitutional

20   questions unnecessarily.           This court has been asked to adjudicate

21   a significant and delicate question of constitutional law, whose

22   outlines are by no means clearly dictated by prior authority; the

23   answer may turn in part on how the City interprets and enforces

24   its policy.      This is exactly the type of question the court should


                                              -67-
 1   not reach out to decide prematurely, when many factors which may

 2   influence the analysis are as yet undeveloped.                As the Supreme

 3   Court noted in Spector Motor Service:

 4        [A]s questions of federal constitutional power have
 5        become more and more intertwined with preliminary doubts
 6        about local law, we have insisted that federal courts do
 7        not decide questions of constitutionality on the basis
 8        of preliminary guesses regarding local law. Avoidance
 9        of such guesswork . . . merely heeds this time-honored
10        canon of constitutional adjudication.
11
12   Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944)

13   (citations omitted).         In the present case the constitutional

14   question may be substantially altered – or even mooted entirely –

15   by whether the City ever enforces Proposed SOP § 5.11 and, if so,

16   the manner in which enforcement proceeds.

17        It would in no way answer these ripeness concerns to say

18   that, because the constitutionality of the City’s Proposed SOP

19   will need to be decided soon, we might as well decide it now

20   rather than make the parties wait.           There are at least two strong

21   responses to any such argument.              For starters, the question

22   whether   Proposed     SOP    §    5.11   embodies   prohibited     viewpoint

23   discrimination   (as    the       district   court   found)   may   never   be

24   presented to the court.       Second, and more important, the ripeness

25   doctrine assumes that the question may well need to be decided in

26   the future, but nonetheless avoids premature decision based on the

27   belief that the adjudication will be better informed and wiser if

28   it occurs when the dispute has crystallized, thus bringing its


                                           -68-
 1   latencies to the surface.               I discuss these two considerations

 2   below.

 3          Courts that have dismissed on the grounds of unripeness have

 4   noted that, as the dispute among the parties advances, the unripe

 5   issue may become moot and thus may never be presented to a court,

 6   or alternatively may be presented in a much altered form.                               See

 7   Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433

 8   F.3d 1199, 1217 (9th Cir. 2006) (en banc) (three-judge plurality

 9   opinion) (finding the case unripe because, in part, “[w]e are . .

10   . uncertain about whether, or in what form, [the] question might

11   be presented to us”); Simmonds v. I.N.S., 326 F.3d 351, 357 (2d

12   Cir. 2003) (Calabresi, J.) (“Prudential ripeness is . . . a tool

13   that    courts     may    use   .   .   .    to     avoid   becoming       embroiled     in

14   adjudications that may later turn out to be unnecessary or may

15   require    premature       examination        of,      especially,     constitutional

16   issues that time may make easier or less controversial.”).                              In

17   this case as well, there is a significant possibility that the

18   constitutional       issue      which       the    district    court    undertook       to

19   determine will be mooted by future events, and either will never

20   be     presented    for    adjudication           or   will    be   presented      in    a

21   substantially different form.                Notwithstanding the City’s facile

22   prediction       that     it    would        deny      Bronx   Household’s         future

23   applications       under    the     proposed        SOP,    there    are    many    other

24   reasonable possibilities.           Among them: The City’s administration,


                                                 -69-
 1   whose composition inevitably will change over time, might adopt a

 2   different approach.       The City might become persuaded – perhaps by

 3   subsequent rulings of the Supreme Court or other courts – that it

 4   cannot    constitutionally     exclude      worship,     and   might   therefore

 5   decide not to adopt the proposed SOP, or it might grant Bronx

 6   Household’s application notwithstanding the SOP.                The City might

 7   grant Bronx Household’s application in part, allowing it to use

 8   school facilities for some of its projected activities – those the

 9   City recognizes are protected by Good News Club – but specifying

10   that others – those which the City views as “worship” and beyond

11   the protection of Good News Club – are not permissible.                 The free

12   speech concerns underlying the district court’s decision might

13   also be mooted if the City concluded that, in practice, any

14   attempt    to   enforce   Proposed     SOP    §   5.11    would    violate   the

15   Establishment Clause of the First Amendment, because of church-

16   state entanglement resulting from the City’s need to distinguish

17   “worship” from other religious activities. See Widmar v. Vincent,

18   454 U.S. 263, 272 n.11 (1981) (“We agree . . . that the University

19   would risk greater ‘entanglement’ by attempting to enforce its

20   exclusion of ‘religious worship’ and ‘religious speech.’”); Bronx

21   Household    III,   400   F.   Supp.   2d    at   598    (merely   identifying

22   “religious worship services” fosters “an excessive government

23   entanglement with religion”); see Walker Op., post at 95.                 Or, as

24   noted above, for any of a number of reasons, Bronx Household might


                                          -70-
 1   never reapply.

 2        Furthermore, in denying Bronx Household’s future application

 3   the City might also rely on a ground which either moots the

 4   constitutional inquiry or at least alters the constitutional

 5   calculus.   The New York statute authorizing the Board to open its

 6   schools   for   public   use   for   “social,     civic   and   recreational

 7   meetings and entertainments, and other uses pertaining to the

 8   welfare of the community” specifies that such uses “shall be non-

 9   exclusive and shall be open to the general public.”                New York

10   Educ. L. § 414(1)(c) (emphasis added).7          While Bronx Household has

11   described its meetings as “open to the public,” the City has

12   questioned this characterization, and the evidence already adduced

13   suggests that Bronx Household’s meetings may not be open to the

14   public.     It appears, for instance, that Bronx Household has

15   “excommunicated two Church members since they began meeting at

16   P.S. 15,” and that an excommunicated member “is not permitted to

17   attend [Bronx Household’s] services, unless the person seeks to be

18   restored to the Church.”       Grounds for discipline include publicly

19   advocating the Islamic religion.            Furthermore, Bronx Household’s

20   Pastor has also testified that “communion,” which is part of Bronx

          7
1            Although in Bronx Household I we dismissed the relevance
2    of the possibly exclusive nature of Bronx Household’s meetings,
3    we did so in the context of upholding on other grounds the
4    City’s denial of a permit to Bronx Household. See Bronx
5    Household I, 127 F.3d at 215. The discussion did not imply that
6    exclusivity could not furnish an alternate ground for the City’s
7    denial.


                                          -71-
 1   Household’s typical Sunday service, is not given to “people who

 2   have not been baptized.”    For these and other reasons, there may

 3   therefore be a substantial question whether Bronx Household’s

 4   meetings are truly “open” to people who reject Christianity.

 5        If such evidence were further developed, it is reasonably

 6   possible that upon Bronx Household’s future application under the

 7   proposed SOP the City would deny access on the ground that Bronx

 8   Household’s Sunday meetings are out of compliance with New York’s

 9   statutory mandate that all meetings be “non-exclusive” and “open

10   to the general public.”    New York Educ. L. § 414(1)(c).   Were the

11   City to exclude Bronx Household on this basis, the question

12   whether the City may constitutionally exclude “worship” would in

13   all likelihood be mooted.    Cf.    Capitol Square Review & Advisory

14   Bd. v. Pinette, 515 U.S. 753, 761 (1995) (even in a “public forum”

15   the state may regulate protected expression with “reasonable,

16   content-neutral time, place, and manner restrictions”).

17        The fact that the proposed provision has never been applied

18   against Bronx Household and may never be applied as the basis for

19   excluding the group from school facilities counsels strongly in

20   favor of finding the question of its constitutionality unfit for

21   judicial review.   See Simmonds, 326 F.3d at 359 (fitness analysis

22   “is concerned with whether the issues sought to be adjudicated are

23   contingent on future events or may never occur” (quoting Isaacs v.

24   Bowen, 865 F.2d 468, 478 (2d Cir.1989) (quotation marks omitted));


                                        -72-
 1   Motor Vehicle Mfrs. Ass’n v. New York State Dep’t of Envtl.

 2   Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996) (“The [ripeness]

 3   doctrine prevents the premature adjudication of issues that may

 4   never arise.”). Refraining from decision on issues that may never

 5   materialize is particularly important where the underlying issue,

 6   as here, is of constitutional import.                See Lyng v. Northwest

 7   Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A

 8   fundamental   and     longstanding     principle     of   judicial   restraint

 9   requires that courts avoid reaching constitutional questions in

10   advance of the necessity of deciding them.”).

11        Even   if   it   were   certain    that   the    constitutionality     of

12   Proposed SOP § 5.11 would be back before the court, that is not a

13   reason to decide that question prematurely, before a dispute over

14   the application of the SOP has crystallized or caused harm.                The

15   ripeness doctrine seeks better information and thus improved

16   accuracy in decision making.         As discussed above, there are many

17   ways in which the constitutional question may be shaped and

18   informed by the manner in which the City chooses to apply and

19   interpret its proposed policy. We cannot anticipate the exact form

20   this dispute will take when it ripens into an actual conflict.

21   The ripeness doctrine requires that our decision await that time

22   (even if it is in the near future), because the issue will be

23   better illuminated when the contours of the conflict are clear.

24   At this stage, the particulars of the dispute between Bronx


                                          -73-
 1   Household and the City regarding the new proposed SOP are a matter

 2   of speculation.

 3         A finding that Bronx Household’s meetings are not open to the

 4   public or that it refuses sacraments based on whether the person

 5   professes the Christian faith might also present a different

 6   constitutional issue. The Supreme Court found in Lamb’s Chapel v.

 7   Center Moriches Union Free School District, 508 U.S. 384 (1993),

 8   that the school did not violate the Establishment Clause by

 9   permitting religious groups to use school facilities because the

10   activity “would not have been during school hours, would not have

11   been sponsored by the school, and would have been open to the

12   public, not just to church members.         The District property had

13   repeatedly been used by a wide variety of organizations.              Under

14   these circumstances . . . there would have been no realistic

15   danger that the community would think that the District was

16   endorsing religion . . . .”      Id. at 395 (emphasis added).        Again,

17   in   Capitol   Square   Review   and   Advisory   Board   v.   Pinette,   a

18   plurality of the Court repeated these sentiments:               To   permit

19   “access by a religious group in Lamb’s Chapel, it was sufficient

20   that the group’s activity was not in fact government sponsored,

21   that the event was open to the public, and that the benefit of the

22   facilities was shared by various organizations.”           515 U.S. 753,

23   767 (1995) (plurality opinion) (emphasis added). Finally, in Good

24   News Club the Court rejected the defendant’s Establishment Clause


                                       -74-
 1   defense by noting: “As in Lamb’s Chapel, the Club’s meetings were

 2   held after school hours, not sponsored by the school, and open to

 3   any student who obtained parental consent, not just to Club

 4   members.”   533 U.S. at 113 (emphasis added); cf. id. at 144

 5   (Souter, J., dissenting) (permitting Good News Club to meet on

 6   school property might result in an Establishment Clause violation,

 7   in part because “[t]he club is open solely to elementary students

 8   (not the entire community, as in Lamb’s Chapel)”).

 9        These cases may suggest that there is a constitutional

10   requirement that religious meetings conducted on public school

11   property be “open to the public,” and that would-be recipients not

12   be denied sacraments on the basis of their failure to espouse the

13   tenets of a particular faith, lest such exclusions be perceived as

14   state “endorsement” of a particular faith.    Cf. Lamb’s Chapel, 508

15   U.S. at 395.    Were the City to permit Bronx Household to use

16   school facilities to perform activities such as communion only for

17   those of a certain faith, or to close the school doors to persons

18   who reject Christianity, this might well be deemed a violation of

19   the Establishment Clause.   Cf. Good News Club, 533 U.S. at 113

20   (“[I]t is not clear whether a State’s interest in avoiding an

21   Establishment   Clause   violation    would     justify   viewpoint

22   discrimination.”).

23        In any event, the possibility that the City’s response to an

24   application under the proposed SOP might be affected by such


                                   -75-
 1   considerations, such that the provision will never be applied in

 2   the manner currently anticipated by the parties (if at all),

 3   argues   against     the   fitness    of    the   question   for   present

 4   adjudication.   Courts do not rush to adjudicate unripe disputes,

 5   especially   those    involving   constitutional     questions,    because

 6   judgments on important questions will be better informed and

 7   sounder if they await the time when the dispute has crystallized

 8   and a party has suffered harm.8
          8
 1           My colleagues offer a number of arguments in favor of a
 2   finding of ripeness. I do not find them convincing. Judge
 3   Calabresi, acknowledging that it is a “close” question, argues
 4   as follows. First, he contends the record reflects actual
 5   promulgation of the revision and adds that the district court
 6   “must be taken to have found” that the City adopted the rule.
 7   Nothing in the district court’s discussion suggests that the
 8   court made such a finding; furthermore, when the court raised
 9   the ripeness concern, counsel for the City acknowledged that
10   while the revision had been “approved at the highest levels of
11   the Department,” it had neither been “implemented” nor “applied
12   . . . to the plaintiffs.” The City subsequently acknowledged
13   that it was “not currently enforcing the revised section 5.11”
14   nor even “advising the field of this change.” Bronx Household
15   III, 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005).
16        More importantly, however, my finding of unripeness does
17   not turn on whether the revision was adopted by the Board as an
18   SOP. It is undisputed that the revision was never applied
19   against Bronx Household. While the apparent failure of the City
20   to promulgate the revision formally makes the unripeness of the
21   dispute more obvious, my conclusion would be the same, for the
22   reasons expressed throughout this opinion, regardless of whether
23   the revision was adopted but not invoked against Bronx
24   Household, or not even adopted. The most important factor is
25   that the revision caused Bronx Household no harm.
26        Judge Calabresi seems to concede that this revision of the
27   SOP has caused no harm to Bronx Household; at least he makes no
28   argument to the contrary. He argues that ripeness may be found
29   on two bases: first, that a finding of unripeness would further
30   delay the ultimate resolution of the dispute, and second, that
31   the City should be entitled to get a ruling on the
32   constitutionality of the revision, even before applying it,


                                          -76-
 1
 1   because the City might have believed that the terms of the
 2   preliminary injunction prohibited the City from enforcing it.
 3        As for the delay, there are two answers. First, the delay
 4   necessary to await a true ripe conflict over the revised SOP
 5   need not have been lengthy. Had the district court declined to
 6   adjudicate the constitutionality of the revised SOP until the
 7   City invoked it to exclude Bronx Household, and the parties
 8   desired speedy resolution, the resulting delay would have been
 9   extremely brief. If, instead of trying to convince the court to
10   adjudicate the constitutionality of a rule that had never been
11   enforced, the City had advised the court that it was adopting a
12   different standard, and invited Bronx Household to apply under
13   the new standard, Bronx Household could then have promptly
14   submitted an application, and the City could have promptly
15   ruled. The parties could then have cross-moved for summary
16   judgment. Any delay in the court’s ruling until a true
17   adversity developed between the parties over a new standard thus
18   need not have exceeded a few weeks.   Second, and more
19   important, resultant delay of adjudication is ordinarily not the
20   kind of harm that renders an unripe claim ripe. Delay is an
21   inevitable consequence whenever a court declines to adjudicate a
22   question by reason of unripeness. In several cases discussed in
23   the body of this opinion, the Supreme Court and this court have
24   declined to adjudicate because of the unripeness of the
25   question, notwithstanding that the refusal to adjudicate would
26   cause the parties delay in securing an answer to the question.
27   If such delay conferred ripeness, no case would ever be unripe
28   for adjudication.
29        Judge Calabresi finally argues that ripeness can be derived
30   from the harm to the City of being barred by the preliminary
31   injunction from implementing its newly revised policy. As
32   explained more fully in earlier passages of this opinion, the
33   terms of the preliminary injunction simply did not forbid the
34   City from revising its policy or from enforcing a policy
35   different from the one enjoined. When the City’s attorney
36   advised the district court, “We did not believe that, in light
37   of the preliminary injunction, that we could go forward [with
38   implementation of the revised policy] without this court’s
39   approval,” the court responded, “I don’t recall that the
40   injunction prohibited the DOE [Department of Education] from
41   changing its policy.” If the City had further qualms, it could
42   have asked the judge for assurance.
43        Judge Walker argues that the issue is ripe because Bronx
44   Household is harmed by an “in terrorem effect” of the revised
45   rule – the in terrorem effect being that Bronx Household must
46   concern itself that, if the revised standard is some day
47   enforced against it, it would be forced to seek another location


                                   -77-
 1

 2                                   CONCLUSION

 3        The    district   court    should    not    have       entertained   and

 4   adjudicated the question whether the City may constitutionally

 5   exclude Bronx Household from access to City school facilities

 6   under the provisions of Proposed SOP § 5.11.          The question was not

 7   ripe for adjudication.      It is unnecessary to determine whether

 8   this was prudential unripeness, constitutional unripeness, or

 9   both.    The question was at least prudentially unripe.             The court

10   should   have   declined   to   jump   ahead    to   make    this   premature

11   adjudication.    I therefore vote to vacate the judgment.

12


 1   to conduct worship services. In support, Judge Walker cites the
 2   Supreme Court’s decision in Abbott. However, the reason the
 3   Supreme Court found ripeness in Abbott, notwithstanding that the
 4   new regulations had not been enforced, was that the plaintiff
 5   drug manufacturers needed immediately either to adopt the
 6   disadvantageous labeling practices mandated by the regulation or
 7   risk serious punishments. Their vulnerability to punishment was
 8   crucial to the finding of ripeness. Here, there is no such
 9   thing. The revised SOP causes no harm to Bronx Household. It
10   is free for the time being to conduct its worship services in
11   the schools without any risk of punishment. The recognition
12   that the revised SOP might some day be enforced to exclude Bronx
13   Household from conducting its worship services in the schools
14   causes it no present harm. If the mere possibility of future
15   enforcement of a new rule were sufficient to confer ripeness, a
16   governmental entity’s mere adoption of a new rule would allow
17   all persons who might some day be required by it to change their
18   practices to challenge its lawfulness in federal court. This is
19   clearly not the accepted standard of ripeness.
20        The arguments of my colleagues do not persuade me that a
21   ripe controversy exists over the constitutionality of this
22   revision of the City’s SOP, which has clearly not been enforced
23   and has caused Bronx Household no harm.


                                        -78-
 1   JOHN M. WALKER, JR., Circuit Judge, dissenting:

 2        This   dispute     between   the   Bronx   Household   of   Faith,   a

 3   Christian church, and the New York City Board of Education is old

 4   and bitter.   Bronx Household wishes to use school facilities for

 5   Sunday worship services; the Board wishes to keep them out and

 6   invokes a rule precluding groups who meet on school premises after

 7   hours from “holding religious worship services, or otherwise using

 8   a school as a house of worship.”          Standard Operating Procedures

 9   Manual § 5.11 (“SOP § 5.11”).1

10        While I agree with Judge Calabresi that this dispute is ripe

11   for adjudication, and join his opinion in that limited respect

12   without reservation,2 I cannot agree that SOP § 5.11 is viewpoint

13   neutral.      Indeed,    after    comparing     the   purposes   of   Bronx

          1
 1          What is termed “Revised” SOP § 5.11 in the court’s per
 2   curiam opinion, I call simply SOP § 5.11.
 3
          2
 1          I agree with Judge Leval that we should not reach out to
 2   decide unnecessary constitutional questions. The Board,
 3   however, has repeatedly and implacably sought to exclude
 4   religious viewpoints -- whether out of the mistaken belief that
 5   such exclusion is necessary to comply with the Establishment
 6   Clause or due to some hostility to religious groups. Indeed,
 7   this marks the third time that a New York school board has
 8   denied religious groups access to school property. Under these
 9   circumstances, and in light of the fact that I believe the Board
10   has adopted SOP § 5.11, I think we owe the litigants a duty to
11   decide this dispute now; the alternative would permit the Board
12   to rely on the in terrorem effect of SOP § 5.11 to prevent Bronx
13   Household from pursuing its principal goal -- the establishment
14   of a community of believers -- as Bronx Household would need to
15   account at every turn for the possibility that at any moment it
16   might be forced to resume its peripatetic search for a building
17   wherein to house its worshipers. Cf. Abbott Labs. v. Gardner,
18   387 U.S. 136, 152 (1967).


                                        -79-
 1   Household’s proposed use of school property with the purposes for

 2   which the Board has opened that property to the public, I can only

 3   conclude that by promulgating SOP § 5.11 the Board has engaged in

 4   a form of invidious viewpoint discrimination forbidden by the

 5   First Amendment.      With the history of this dispute in mind and in

 6   light of the Supreme Court’s recent decision in Good News Club v.

 7   Milford Central School, 533 U.S. 98 (2001), I vote to affirm the

 8   district court’s permanent injunction.

 9        Rather than inquiring into the purposes of the proposed

10   expressive activity and the purposes of the forum, Judge Calabresi

11   follows a different analytical course, with which I cannot agree.

12   Starting with the premise that in a “limited public forum” the

13   government may restrict any expressive activity that does not

14   “parallel” expressive activity the government has already chosen

15   to permit, Judge Calabresi asks whether “worship [is] merely the

16   religious analogue of ceremonies, rituals, and instruction [which

17   the Board has chosen to permit], or . . . [whether it is] a unique

18   category of protected expression.”        Calabresi Op., supra at 6.         He

19   then completes the syllogism by holding that worship is sui

20   generis, unlike expressive activity the Board has already chosen

21   to   permit,    and   thus   impermissible.        The   result   is    Bronx

22   Household’s excommunication from the broad group of after-school

23   users who are welcome on school property.

24        Judge     Calabresi’s   approach     is   fatally   defective     in   two


                                        -80-
 1   principal ways: (1) He fails to define the “limits” of the Board’s

 2   limited public forum, rendering the comparison he draws between

 3   permitted    expressive    activity   and    Bronx   Household’s    proposed

 4   expressive activity so indeterminate and malleable that its result

 5   is foreordained; and (2) He fails to articulate an objective

 6   definition of “worship,” the term he uses to describe Bronx

 7   Household’s proposed expressive activity, choosing instead to

 8   leave that task to the Board and thereby likely ensuring that the

 9   Board’s entanglement in the process will violate the Establishment

10   Clause.

11        The First Amendment is not like a book in the “Choose Your

12   Own Adventure” series, in which it is easy –- albeit theoretically

13   improper –- to select an outcome and, working backwards, decide

14   how the plot and characters will develop; nor, for that matter,

15   may we decline the adventure itself.         The First Amendment does not

16   teach Judge Calabresi’s simple calculus.             Cf. Int’l Soc’y for

17   Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 693-94 (1992)

18   (Kennedy, J., concurring) (“Our public forum doctrine ought not to

19   be a jurisprudence of categories rather than ideas . . . .”).

20   Because I agree with Judge Calabresi that we must decide this

21   case,     because   I   conclude   that     the   Board    has   engaged   in

22   impermissible       viewpoint   discrimination,      and    because    Judge

23   Calabresi’s approach relies more on judicial legerdemain than

24   judicial reasoning, I must respectfully dissent from the court’s



                                        -81-
 1   decision to vacate the permanent injunction.

 2   I. Bronx Household’s Free Speech Claim

 3          A. The Board’s Viewpoint Discrimination

 4          Despite the two flaws in Judge Calabresi’s approach, I begin

 5   with three points on which he and I are in agreement.                  I agree

 6   that in a limited public forum, the government may exclude all

 7   entities except those “entities of similar character” to those it

 8   has chosen to include, Perry Educ. Ass’n v. Perry Local Educators’

 9   Ass’n, 460 U.S. 37, 48 (1983), as long as any such exclusion is

10   not a facade for covert viewpoint discrimination, Cornelius v.

11   NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 812 (1985).

12   Indeed, we have concluded, a limited public forum is (1) a sub-set

13   of the designated public forum as to “expressive activities of

14   [the] genre” the government has chosen to permit on its property,

15   Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.

16   1991), and (2) a sub-set of the nonpublic forum as to all other

17   expressive activities.        See also Arkansas Educ. Television Comm’n

18   v.    Forbes,   523   U.S.   666,    677    (1998)   (holding   that   if   the

19   government excludes “a speaker who falls within the class to which

20   a    designated   public     forum   is    made   generally   available”    its

21   decision is subject to strict scrutiny).              I also agree that we

22   must be careful not to articulate a standard that would simply

23   require that “any public school opened for civic meetings . . .

24   [be] open[] for use as a church, synagogue, or mosque.”            Good News


                                           -82-
 1   Club, 533 U.S. at 139 (Souter, J., dissenting).                         And, finally, I

 2   agree that courts should not analyze the “substance” of proposed

 3   expressive activity as the district court did in this case.                             See

 4   Bronx Household of Faith v. Bd. of Educ. (Bronx Household III),

 5   400    F.   Supp.    2d   581,    591       (S.D.N.Y.       2005)    (describing     Bronx

 6   Household’s       proposed    activity         as        “singing    songs     and   hymns;

 7   teaching from the Bible.”).                 By deconstructing religious worship

 8   into components, the district court denigrates it.3

 9          Judge Calabresi and I part ways, however, in how we propose

10   to    ascertain     whether      the    Board       is    just    excluding     an   entity

11   dissimilar to those it has already chosen to permit on its

12   premises     or     whether      it    is     engaging       in     unlawful    viewpoint

13   discrimination. I would compare the purposes of Bronx Household’s

14   proposed expressive activity to the purposes for which the Board

15   has created its limited public forum and, if the fit is close,

16   inquire searchingly of the government’s motives.                             This accords

17   with the various cases Judge Calabresi cites in his opinion, but


            3
 1          The district court’s approach is also impractical, for if
 2   worship is merely the singing of hymns and reading from the
 3   Bible, the singing of hymns might be considered simply a
 4   vibration of the vocal chords; finally, the district court’s
 5   approach seems in tension with the Supreme Court’s decision in
 6   Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 109, 111
 7   (1943) (“[T]he mere fact that the religious literature is ‘sold’
 8   by itinerant preachers rather than ‘donated’ does not transform
 9   evangelism into a commercial enterprise.”). I note in passing
10   that for these same reasons I fail to see how the Board could
11   grant Bronx Household’s putative future application in part
12   while denying it in part. Cf. Leval Op., supra at 70.


                                                  -83-
 1   barely   analyzes.     The    Good    News     Club   Court,    for    instance,

 2   emphasized purpose.     Compare Good News Club, 533 U.S. at 108

 3   (“Milford has opened its limited public forum to activities that

 4   serve a variety of purposes . . . .”) (emphasis added), and id.

 5   (“[T]here is no question that teaching morals and                      character

 6   development to children is a permissible purpose under Milford’s

 7   policy . . . .”), and id. at 109 (discussing “the [Lamb’s Chapel]

 8   films’ purpose”), with id. at 131 (Stevens,                   J.,    dissenting)

 9   (distinguishing discussion of “political issues from meetings

10   whose principal purpose is to recruit new members to join a

11   political organization”) (emphasis added).4               And our court has

12   often deemed analysis of the parties’ purposes essential to

13   resolution   of   limited    public    forum    cases.        See    Deeper   Life

14   Christian Fellowship, Inc. v. Bd. of Educ., 852 F.2d 676, 680 (2d

15   Cir. 1988) (government’s purpose relevant to determining whether

16   property is public forum or nonpublic forum);                   Knolls Action

17   Project v. Knolls Atomic Power Lab., 771 F.2d 46, 50 (2d Cir.

18   1985) (ostensible subject-matter restriction “impermissible [if]

19   it was motivated [in fact] by a dislike                  of    the    content of

20   [plaintiff]’s message”).

21        More    importantly,     whether        Bronx    Household’s       proposed
          4
1           See also Rosenberger v. Rector & Visitors of the Univ. of
2    Virginia, 515 U.S. 819, 829 (1995); id. at 846 (O’Connor, J.,
3    concurring) (“This insistence on government neutrality toward
4    religion explains why we have held that schools may not
5    discriminate against religious groups by denying them equal
6    access to facilities that the schools make available to all.”).


                                           -84-
 1   expressive activity constitutes “worship” can only be discerned by

 2   inquiring of that activity’s purpose.      See Welsh v. United States,

 3   398 U.S. 333, 339 (1970) (accepting the subjectivity of “religious

 4   belief” and abjuring any objective definition of the term); United

 5   States v. Seeger, 380 U.S. 163 (1965) (same); cf. Murdock, 319

 6   U.S. at 109 (noting evangelical purpose to sale of religious

 7   literature).

 8           Under the approach most faithful to Supreme Court precedent,

 9   whether Pastor Hall chooses to label Bronx Household’s proposed

10   expressive activity a “worship service” is not determinative; we

11   must independently examine the purpose of that activity.          Compare

12   McCreary County v. ACLU, 125 S. Ct. 2722, 2732 (2005) (discerning

13   hidden religious purpose) with N. Pac. Union Conference Ass’n of

14   the Seventh-Day Adventists v. Clark County, 118 Wash. App. 22, 28-

15   29 (2003) (discussing whether “education” should be considered “‘a

16   vital part of the Church’s worship program’” for tax purposes).

17   Defendants’ purpose in opening school property to the public is to

18   improve “school-community relations in ways that can enhance

19   community support for the school.”         Cahill Decl. ¶ 14; Farina

20   Decl. at ¶ 9 (noting that the Board wishes to “expand enrichment

21   opportunities for children and to enhance community support for

22   the schools”) (emphasis added).        Simply put, defendants wish to

23   foster a community in their geographic vicinity in ways that will

24   inure   to   their   benefit.   Upon    review   of   the   record,   Bronx


                                      -85-
 1   Household’s     proposed   expressive      activity    fits   within    this

 2   paradigm.     Bronx Household’s essential purpose is the development

 3   of a community of believers, which has as its anticipated result

 4   increased community support for the school.           See 1st Hall Dep. at

 5   19, 20, 38, 46.

 6        Because the fit between the government’s purpose in opening

 7   the forum and the purpose of Bronx Household’s proposed expressive

 8   activity is sufficiently close, more searching scrutiny of the

 9   government’s motives is required.            Cf. Peck ex rel. Peck v.

10   Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 631 (2d Cir. 2005)

11   (Calabresi, J.) (postulating hostility to religion from teacher’s

12   conduct).     The Board’s avowed purpose in enforcing the regulation

13   in this case, see Bronx Household III, 400 F. Supp. 2d at 599

14   (noting that “[t]he Board is quite candid in acknowledging its

15   intent   to    ‘reinstitute     a   policy   that     would   prevent    any

16   congregation     from   using   a   public    school    for   its   worship

17   services’”), and its long-standing hostility to religious groups,

18   leads ineluctably to the conclusion that the Board, in fact, has

19   undertaken to exclude a particular viewpoint from its property.

20        I acknowledge Judge Calabresi’s concern that New York’s

21   schools not resemble St. Patrick’s Cathedral.           However, analysis

22   of the parties’ purposes does not raise that concern; it leaves

23   the Board ample room to regulate the use of its property.5             As the
          5
1           Moreover, because the Board has a compelling interest in
2    avoiding Establishment Clause violations, it can exclude


                                         -86-
 1   Supreme Court explained in Good News Club, the government “may be

 2   justified ‘in reserving [a forum] for certain groups.’” 533 U.S.

 3   at 106 (emphasis added); Perry, 460 U.S. at 49 (“We believe it is

 4   more accurate to characterize the access policy as based on the

 5   status of the respective unions . . . .”) (emphasis added).    The

 6   Board thus remains free to distinguish between outside speakers

 7   and student-sponsored groups (as indeed the text of SOP § 5.11

 8   hints it may).     Cf. Bronx Household III, 400 F. Supp. 2d at 600

 9   n.18 (noting that the Board could “amend the SOPs to create a

10   neutral distinction based on the speaker”).    Moreover, the Board

11   may also impose reasonable time, place or manner restrictions on

12   Bronx Household.

13        B. Two Flaws in Judge Calabresi’s Reasoning

14        Judge Calabresi’s conclusion that “defendants’ exclusion of

15   worship services is viewpoint neutral,” Calabresi Op., supra at

16   38, is grounded not upon a comparison of the purposes of the

17   activities allowed and the purpose of Bronx Household’s proposed

18   activity, but upon a comparison between the expression already

19   permitted on school premises and “worship.”      Compare Calabresi

20   Op., supra at 31 (comparing worship services to “Boy Scouts

21   rituals or . . . Elks Club ceremonies” and finding substantial

22   differences) with Good News Club, 533 U.S. at 111 (finding few

1    religious groups whose presence would convey to the public the
2    message that the government endorses religion (or a particular
3    religion). Cf. Lamb’s Chapel, 508 U.S. at 394-395.


                                     -87-
 1   differences between Good News Club’s proposed activity and Boy

 2   Scouts rituals).       After he pronounces worship sui generis, Judge

 3   Calabresi not surprisingly finds that “worship” is not included

 4   within the set of expressive activity hitherto permitted by the

 5   Board.      This will not do.        In order to determine whether an

 6   element is within a set, a court should both define the set, see

 7   Child     Evangelism    Fellowship    of   New   Jersey   Inc.   v.    Stafford

 8   Township Sch. Dist., 386 F.3d 514, 527 (3d Cir. 2004) (discussing

 9   the limited public forum’s limits), and analyze the element, to

10   discern whether it has the attributes required for admission to

11   the set, see Goulart v. Meadows, 345 F.3d 239, 252 (4th Cir. 2003)

12   (explaining the importance of identifying “which of . . . various

13   indicia of similarity is the relevant one”).          See generally Nix v.

14   Hedden, 149 U.S. 304 (1893) (determining whether tomatoes should

15   be classified as “fruit” or “vegetable” by first defining “fruit”

16   and   “vegetable”      and   then   analyzing    “tomatoes”).         Yet   Judge

17   Calabresi defines neither the set –- the “limits” of the limited

18   public forum –- nor the element –- “worship.”             His comparison is

19   therefore susceptible to reductio ad absurdum, as both the scope

20   of the set and the nature of its prospective member remain

21   substantially unknown.6

           6
1           Indeed, Judge Calabresi holds that “worship” is sui
2    generis. But how is it possible to determine whether one
3    activity that is by hypothesis in a class of its own, Webster’s
4    Third International Dictionary 2286 (1981) (defining “sui
5    generis”), is within a set comprised of other activities?


                                           -88-
 1             (1)   Judge Calabresi does not define the limits of the
 2                   limited public forum.
 3
 4        The first flaw in Judge Calabresi’s analysis lies with his

 5   delimitation of the limited public forum.    He says that we are

 6   bound by our decision in Bronx Household of Faith v. Community

 7   School District No. 10 (Bronx Household I), 127 F.3d 207, 211-14

 8   (2d Cir. 1997), that the school has created a limited public

 9   forum.   But the character of a forum is defined by its uses and

10   the uses to which it is put change over time.      See Paulsen v.

11   County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991); cf. Grayned v.

12   City of Rockford, 408 U.S. 104, 116 (1972) (stating that “[t]he

13   crucial question is whether the manner of expression [that the

14   petitioner wishes to engage in] is basically incompatible with the

15   normal activity of a particular place at a particular time”)

16   (emphasis added).   Therefore, while his implicit assumption that

17   the character of the forum has not changed may be correct, he

18   cannot reach this conclusion by simple judicial say-so; such a

19   conclusion must be based on a factual inquiry into the forum’s

20   current uses, not those of a decade ago.

21        Even were I to agree with Judge Calabresi that we should

22   unquestioningly adopt our decade-old legal analysis of the forum,

23   the term “limited public forum” does no judicial work unless we

24   know “the class to which . . . [the] forum is made generally

25   available,” Forbes, 523 U.S. at 677.       And on this point his




                                    -89-
 1   opinion is silent.7
          7
 1          I hold no illusion that defining the limits of a limited
 2   public forum is an easy task. For instance, Cornelius instructs
 3   that we should consider the government’s intent. 473 U.S. at
 4   802; see, e.g., Deeper Life, 852 F.2d at 680; Calash v. City of
 5   Bridgeport, 788 F.2d 80, 83 (2d Cir. 1986). But how to
 6   distinguish a change of mind –- which the government, like any
 7   property owner, is assuredly permitted, see, e.g., Perry, 460
 8   U.S. at 46 –- from viewpoint hostility? Compare Knolls, 771
 9   F.2d at 49-50 (“In the instant case, therefore, whatever
10   previous use has been allowed does not foreclose KAPL from
11   asserting its rights at this time.”) (emphasis added) with
12   Robert C. Post, Between Management and Governance: The History
13   and Theory of the Public Forum, 34 UCLA L. Rev. 1713, 1756 (“If
14   the reach of the forum is determined by the intent of the
15   government, and if the exclusion of the plaintiff is the best
16   evidence of that intent, then the plaintiff loses in every
17   case.”), and with New York Magazine v. Metro. Transp. Auth., 136
18   F.3d 123, 129-30 (2d Cir. 1998). On the other hand, if we fix
19   the definition of the forum at the time the government first
20   permits members of the public to use its property for
21   expression, how do we account for the inherently contingent
22   nature of a property’s taxonomy? See ISKON, 505 U.S. at 698
23   (Kennedy, J., concurring) (arguing that if “expressive activity
24   would be appropriate and compatible with [a property], the
25   property is a public forum”); see also Lebron v. Nat’l R.R.
26   Passenger Corp., 69 F.3d 650, 655-56 (2d Cir. 1995); supra
27   (discussing Grayned).
28        Moreover, courts sometimes make this task even more
29   difficult by covertly collapsing the inquiry into forum
30   definition and forum boundary. See, e.g., Bd. of Educ. of
31   Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 246-50 (1990)
32   (inquiry into whether a secondary school had in fact opened a
33   limited public forum within the meaning of 20 U.S.C. § 4071(a)
34   conducted in tandem with inquiry into whether the secondary
35   school provided “equal access”); Gregoire v. Centennial Sch.
36   Dist., 907 F.2d 1366, 1375-76 (3d Cir. 1990) (considering at the
37   same time whether the school had in fact tightened its control
38   over expressive activity on its premises and whether it was
39   engaging in impermissible viewpoint discrimination).
40        While I believe that these tensions in First Amendment
41   doctrine are ripe for Supreme Court clarification -- in this
42   respect, at least, I agree with Judge Leval -- Judge Calabresi
43   should not so easily eschew his obligation to define the
44   contours of the limited public forum the Board has allegedly
45   created.
46


                                   -90-
 1              (2)   Judge Calabresi does not define worship.

 2        Judge Calabresi’s reasoning has a second flaw: It posits that

 3   judges   can   define   “worship.”      He     assumes   that   worship   is

 4   distinguishable   from    activities    that    are   plainly   within    the

 5   forum’s limits: These include gathering for the purpose of gaining

 6   religious instruction, engaging in Bible study, and, if it be the

 7   disposition of the participant in such activities, feeling the

 8   deity’s presence.        Indeed, to some men and women of faith,

 9   political activism, proselytizing, or even education,8 amount to

10   worship.9 How can one quarrel with Justice Souter’s classification

11   of Good News Club’s after-school Bible study program, permitted by

          8
 1          Cf. DeBoer v. Village of Oak Park, 267 F.3d 558, 568 (7th
 2   Cir. 2001) (“In adopting the philosophical and theological
 3   position that prayer . . . can never be ‘civic,’ the Village has
 4   discriminated . . . .”); Lassonde v. Pleasanton Unified Sch.
 5   Dist., 320 F.3d 979, 984 (9th Cir. 2003) (suggesting that
 6   “proselytizing, no less than prayer, is [worship]”) (internal
 7   quotation marks omitted); Seventh-Day Adventists, 118 Wash. App.
 8   at 28-29 (“[T]he Church maintains that worship must be broadly
 9   defined to include missionary work, education, charitable
10   giving, communication, publication, and planning and growth
11   activities because these are ‘a vital part of the Church’s
12   worship program.’”).
13
          9
 1          Moreover, as Judge Bybee explained in his dissent from
 2   the Ninth Circuit’s denial of rehearing en banc in Faith Center
 3   Church Evangelistic Ministries v. Glover, Judge Calabresi may
 4   assume a definition of worship that works to “treat[] religious
 5   groups differently.” 480 F.3d 891, 901 (9th Cir. 2007) (Bybee,
 6   J., dissenting from denial of rehearing en banc) (explaining
 7   that “[l]iturgically oriented denominations such as
 8   Episcopalians and Catholics will [likely] find themselves
 9   subject to greater burdens [as] [t]he worship elements of their
10   services are more distinct and easily severable from the non-
11   worship elements”).
12


                                      -91-
 1   the Court, as “worship,” 533 U.S. at 138 (Souter, J., dissenting)?

 2   Of course, because the concept of worship is so ephemeral and

 3   inherently subjective, Judge Calabresi is able to indulge his

 4   preference that worship be defined not by what it is, but by what

 5   it is not.    And what worship is not, in his view (and convenient

 6   for   his   purposes),   is   anything   that   the   Board   has   already

 7   permitted to occur in the forum.     Yet the fact is that none of us,

 8   who are judges, are competent to offer a legal definition of

 9   religious worship.10

10         Even assuming that judges could define “worship,” Judge

11   Calabresi does not explain how he would do so –- perhaps he knows

12   it when he sees it?11     Cf. Jacobellis v. Ohio, 378 U.S. 184, 197

           10
 1          I do not suggest that “worship” is not possible to define
 2   –- just that it is impossible for a court to define. Were
 3   worship truly legally indistinguishable from activities carried
 4   on from a ‘religious perspective,’ laws like the Equal
 5   Participation of Faith-Based Organizations, 69 Fed. Register
 6   41,712 (July 9, 2004) (codified at 24 C.F.R. § 5.109)
 7   (prohibiting only “inherently religious activities” and defining
 8   the term to include worship, religious instruction, or
 9   proselytism), might well be unconstitutional.
10
           11
 1          On this score, I find Judge Calabresi’s treatment of
 2   Widmar v. Vincent singularly unpersuasive. Widmar counsels that
 3   we should decline to establish a line which, when crossed,
 4   transforms the “‘singing [of] hymns, reading scripture, and
 5   teaching biblical principles,’” . . . [into] unprotected
 6   ‘worship.’” See Widmar, 454 U.S. 263, 270 n.5 (1981) (internal
 7   citation omitted). But Judge Calabresi simply dismisses Widmar
 8   with the cursory explanation that “Widmar . . . did not conclude
 9   that the exclusion of worship constituted viewpoint
10   discrimination.” Calabresi Op., supra at 33. He ignores the
11   question actually posed, and deemed unanswerable, by the Widmar
12   Court: What is worship?
13


                                       -92-
 1   (1964) (Stewart, J., concurring).       Judge Calabresi suggests that

 2   one may worship “mammon, sex, or art.”        Calabresi Op., supra at

 3   34.   Perhaps he means to concede that the term can connote simple

 4   reverence for something or someone (like “Tiger Woods” or, in

 5   earlier eras, “Frank Sinatra,” “Rita Hayworth,” or “The Beatles”).

 6   See Webster’s Third International Dictionary 2637 (1981) (defining

 7   worship as “to regard with respect, honor, or devotion”).             Or

 8   perhaps he means something different; but if so, there is no hint

 9   to art history professors everywhere as to how they might turn

10   their classrooms into houses of worship –- surely a useful feat!

11   In short, Judge Calabresi speaks with an obliquity of which any

12   prophet would be proud.

13         Judge   Calabresi’s    various    attempts   to   avoid   defining

14   “worship” are unavailing.12     First, Judge Calabresi suggests that

15   “Good News Club itself recognized this subject matter, worship, as

16   falling outside the boundary of its viewpoint discrimination

17   jurisprudence.”   Calabresi Op., supra at 26.       Good News Club did

18   nothing of the sort.        The Court simply declined to reach the

19   question presented by this case, which, while not necessary to

20   that case, is to this one, see Good News Club, 533 U.S. at 112 n.4

21   (“[W]e conclude that the Club’s activities do not constitute mere

           12
1           Nor can I agree with Judge Leval that the Board is likely
2    to propound a useful definition of worship at some future date.
3    I see no evidence in the record that the Board is prone to
4    giving fulsome explanations concerning its decisions to grant or
5    deny applications to use school facilities.


                                      -93-
 1   religious worship, divorced from any teaching of moral values.”),

 2   as Judge Calabresi recognizes elsewhere in his opinion, when it

 3   suits him, see Calabresi Op., supra at 11 (noting that “the

 4   instant appeal’s central question” was “unresolved”).

 5        Second, Judge Calabresi relies heavily on Pastor Robert

 6   Hall’s admission that Bronx Household wishes to conduct worship

 7   services on school premises.      But if we accept plaintiffs’ self-

 8   description, we should accept their self-definition.         And Pastor

 9   Hall defines worship as the ascription of “worth to a variety of

10   values    and   skills,”   1st   Hall    Dep.   at   41-42   (discussing

11   ‘worshiping’ a sunset or work of art); Bronx Household of Faith v.

12   Bd. of Educ. (Bronx Household II), 226 F. Supp. 2d 401, 424

13   (S.D.N.Y. 2002), not much different in kind from the dictionary

14   definition, supra, “to regard with respect, honor, or devotion.”

15   If that is to be the operative definition of “worship,” Bronx

16   Household is surely correct that the Board permits other community

17   groups that “ascribe worth to a value or skill” –- i.e.,“worship”

18   –- to use their facilities.      Cf. id. (“[T]he Semanonans Stickball

19   players . . . would likely join plaintiffs in worshiping David

20   Wells’ pitching prowess.”).13
          13
1           Judge Calabresi notes that Pastor Hall distinguished
2    worship from Boy Scouts meetings. But he quotes selectively
3    from Pastor Hall’s deposition; Pastor Hall also explicitly
4    explains that “[w]e will ascribe worship or praise to David
5    Wells when he almost pitched a second no-hitter. . . . We will
6    praise a sunset. We will also praise a work of art. We will
7    ascribe worth and value to something that we find valuable.” 1st
8    Hall Dep. at 41-42. Reading Pastor Hall’s deposition


                                       -94-
 1        Moreover, and more fundamentally, Judge Calabresi, while he

 2   dismisses Bronx Household’s as applied challenge to SOP § 5.11,

 3   does not reckon with its facial challenge to the rule.          Compl. at

 4   6; cf. Faith Ctr. Church Evangelistic Ministries v. Glover, 462

 5   F.3d 1194, 1219 (9th Cir. 2006) (Tallman, J., dissenting) (“Faith

 6   Center also brought a facial challenge to the policy.”).            Bronx

 7   Household’s facial challenge to SOP § 5.11 implicates the rights

 8   of other religious groups, which might not “make [the] nice

 9   admission” that they wish to engage in “worship.”         Id.

10        Finally, any attempt to define worship places Judge Calabresi

11   upon the horns of a dilemma.     Either he clarifies the meaning of

12   “worship,”   and   risks   entangling   the   judiciary   in    religious

13   controversy in violation of the First Amendment, or he delegates

14   the task of flouting the Establishment Clause to the Board, which

15   will no doubt have to “interpret religious doctrine or defer to

16   the interpretations of religious officials” in order to keep

17   worship, and worship alone, out of its schools.           Commack Self-

18   Service Kosher Meats v. Weiss, 294 F.3d 415, 427 (2d Cir. 2002);

19   see also Glover, 462 F.3d at 1220 (Tallman, J., dissenting); cf.

20   Good News Club, 533 U.S. at 127 (Scalia, J., concurring).

21   II. The Board’s Establishment Clause Defense

22        Judge Calabresi does not consider whether the Board can show

1    “sympathetically,” I cannot but conclude that his definition of
2    worship is broader than the (unarticulated) definition upon
3    which Judge Calabresi relies.


                                      -95-
 1   a compelling interest in applying SOP § 5.11 to Bronx Household;

 2   because, however, I would find that the Board’s exclusion of Bronx

 3   Household from the forum is viewpoint-discriminatory, I must

 4   address the argument, advanced in the district court, that the

 5   Board   can    justify     its    position      as   necessary     to    avoid    an

 6   Establishment Clause violation.             While avoiding an Establishment

 7   Clause violation may as a general matter be a compelling state

 8   interest, in this case, the Board’s argument is unavailing because

 9   Bronx Household’s worship at the school does not offend the

10   Establishment Clause.

11        The endorsement test –- which the Supreme Court now uses to

12   identify Establishment Clause violations -- asks whether “an

13   objective observer, acquainted with the text, legislative history,

14   and implementation of the [challenged law or policy], would

15   perceive it as a state endorsement” of religion.                 Santa Fe Indep.

16   Sch. Dist. v. Bd., 530 U.S. 290, 308 (2000).                The Board argues –-

17   and Judge Calabresi obliquely suggests -- that permitting Bronx

18   Household     the    use   of   school    property    on    Sundays     amounts   to

19   government endorsement of religion in two ways: (1) It suggests

20   that the state favors religion over non-religion; and (2) Because

21   Bronx Household uses school premises on a more frequent basis than

22   other   religious      groups,    it     suggests    that    the   state    favors

23   Christianity        over Judaism, Islam, or other faiths.                  Neither

24   argument has merit.



                                              -96-
 1           As we recognized in Deeper Life, “‘the semblance of official

 2   support is less evident where a school building is used at night

 3   . . . by religious organizations, under a program that grants

 4   access to all charitable groups.’” 852 F.2d at 681 (citing Brandon

 5   v. Bd. of Educ., 635 F.2d 971, 978-79 (2d Cir. 1980)); see also

 6   Lamb’s Chapel, 508 U.S. at 395 (noting that meetings were not

 7   “during school hours . . . [or] sponsored by the school . . . [and

 8   are] open to the public, not just church members”).                       Just so,

 9   Bronx        Household   does   not    meet   during    school   hours,   and   its

10   meetings are open to all.             See 1st Hall Dep. at 30     (“Our services

11   are always open to the public.”).14                    Nor do religious groups

12   dominate the forum.         See Bronx Household III, 400 Supp. 2d at 596;

13   cf. Widmar, 454 U.S. at 275.             Under these circumstances, there is

14   no likelihood that “an adult who, taking full account of the

15   policy’s text, history, and implementation, do[ing] so mindful .

16   .   .        [of   the    particular      perspective      of]    impressionable

17   schoolchildren,” Skoros, 437 F.3d at 23, would understand Bronx

18   Household’s use of school premises to reflect the government’s


             14
 1          While it is of course true that a Muslim might not be
 2   welcome at Bronx Household’s worship service, 2d Hall Dep. at
 3   39, it is beyond cavil that the Boy Scouts –- a group the Board
 4   readily permits on school property –- also exclude those who
 5   refuse to adopt their core beliefs, see Boy Scouts of America v.
 6   Dale, 530 U.S. 640 (2000). Thus, I do not see how the Board
 7   could deny Bronx Household’s putative future application on this
 8   ground without also denying applications from, among others, the
 9   Boy Scouts. Cf. Leval Op., supra at 71-72.
10


                                              -97-
 1   preference for religion over non-religion.15

 2        I also disagree that the reasonable observer is likely to

 3   believe the government favors Christianity over other faiths

 4   because, due to the vagaries of the school calendar, the forum is

 5   available on Sundays – when Christians worship – and not on

 6   Saturdays or Fridays – which are holy to Jews and Muslims.    As the

 7   Supreme Court explained in Zelman v. Simmons-Harris, 536 U.S. 639

 8   (2002), and Good News Club, an Establishment Clause violation does

 9   not result from either private choice or happenstance.       Zelman,

10   536 U.S. at 652; Good News Club 533 U.S. at 119 n.9; see also

11   Harris v. McRae, 448 U.S. 297, 319 (1980) (“[I]t does not follow

12   that a statute   violates the Establishment Clause because it

13   happens to coincide or harmonize with the tenets of some or all

14   religions.”) (internal quotation marks omitted).

15        To the extent the Board is troubled by Bronx Household’s use

16   of its property, it is free to impose different reasonable time,

17   place or manner restrictions.    Ward v. Rock Against Racism, 491

18   U.S. 781, 790 (1989).

19


          15
1           Indeed, this case seems the precise opposite of Van Orden
2    v. Perry. In Van Orden, Justice Breyer noted that “the short
3    (and stormy) history of the courthouse Commandments’ displays
4    demonstrates the substantially religious objectives of those who
5    mounted them.” Van Orden, 125 S.Ct. 2854, 2871 (2005) (Breyer,
6    J., concurring). Here, the decade-long (and equally stormy)
7    history of the Board’s dispute with Bronx Household is
8    compelling evidence that the Board lacks a religious objective.


                                     -98-
 1                          *   *    *   *   *   *

 2        In the end, this case is one that requires judges to draw

 3   lines.    Judge Leval has drawn a prudential line in the sand and

 4   declines to cross it to decide this case.         Judge Calabresi,

 5   meanwhile, has drawn a circle around our schools to keep worship

 6   (whatever that may be) out.    Cf. Mozert v. Hawkins County Bd. of

 7   Educ., 827 F.2d 1058, 1073 (Boggs, J., concurring) (“He drew a

 8   circle that shut me out -- Heretic, Rebel, a thing to flout.   But

 9   Love and I had the wit to win / We drew a circle that took him

10   in!”).    The approach I follow, while admittedly imperfect in this

11   uncertain legal terrain, at least abjures sleight of hand and ipse

12   dixits.    It is also more sensitive to Bronx Household’s First

13   Amendment rights.     Yet there is no doubt that this particular

14   dispute –- no stranger to the Supreme Court and now focused on

15   worship -– would benefit from a more conclusive resolution by that

16   Court.




                                     -99-
