Not sure how you can disagree with me, Marci, when I haven't yet articulated my views! (I've only predicted that the current Court would rule against the State -- which I assume most here would agree is not a very controversial prognostication.)
On the merits, two questions: Is it an EC violation? And, if not, would excluding the religious services be a FS or FE violation? I think they're both close and difficult questions. As to the former: There are two factors present here that give me pause, particularly in combination: (i) The "forum" is open only on Sundays, effectively meaning that although nominally available to all groups, it will be -- and has been -- dominated by churches of particular religions; and (ii) the buildings in question are elementary schools, and it would be very difficult to provide "disclaimers" sufficient (cf. Pinette) to assure the young children who attend the schools that the state is not preferring religion -- and Christian religions, in particular. (Details from CTA2 opinion below.) Therefore, I think the EC question is actually a very hard one -- more so than in Good News and Widmar. If it's not an EC violation, New York might not exclude religious services at all, since its sole rationale has been to avoid EC violations -- and thus the FE and FS questions would probably be moot if the Court were to hold that the services don't violate the EC. But if NY were to continue to exclude religious services (say, because the state constitution is more restrictive than the EC), it's also not obvious to me that the exclusion would violate the First Amendment. As for the Free Speech Clause, although the services in question obviously include some speech from certain persons to others (e.g., sermons), that is not all they entail, and it's not those portions of the services that are the source of the exclusion under NY law. Instead, NY bases the exclusion on the collective ritual of the services. I'm not sure it's yet well established that collective ritual and prayer -- particularly if it does not have a (human) audience -- is protected by the Free Speech Clause. Such prayer and ritual is, however, obviously the subject of the Free Exercise Clause, and I don't see how Marci could be correct that there's no "targetIng" of religious exercise here -- it's the only thing NY excludes on the face of the statute. That still doesn't mean that the *result* in Lukumi governs here, however, since this is merely denial of the use of a public school (one that few other groups use on Sundays), rather than a criminal prohibition. Therefore, there would be a difficult question about where this falls in the spectrum between *Lukumi* and *Locke v. Davey*. All of which is to say that the questions here are close and *should *be difficult to resolve. Which is different from saying that the Court will in fact find it all that difficult. >From CTA2 opinion: Bronx Household has held its worship services at P.S. 15, and nowhere else, every Sunday since 2002. [Between 2002 and 2005], at least twenty-one other congregations have used a school building on Sundays as their regular place for worship services. [[T]he number of churches using schools for worship services has increased substantially since [2005].] During these Sunday services, the schools are dominated by church use. *See Capitol* *Square*, 515 U.S. at 777 (O’Connor, J., concurring in part and concurring in the judgment) (“At some point . . . a private religious group may so dominate a public forum that a formal policy of equal access is transformed into a demonstration of approval.”). Because of their large congregations, churches generally use the largest room in the building, or multiple rooms, sometimes for the entire day. . . . In some schools, no other outside organizations use the space. Accordingly, on Sundays, some schools effectively become churches. As a result of this church domination of the space, both church congregants and members of the public identify the churches with the schools. The possibility of perceived endorsement is made particularly acute by the fact that P.S. 15 and other schools used by churches are attended by young and impressionable students, who might easily mistake the consequences of a neutral policy for endorsement. *Cf. Van Orden v. Perry*, 545 U.S. 677, 703 (2005) (Breyer, J., concurring) (distinguishing lawful display of Ten Commandments from cases in which display was “on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state”). Furthermore, the fact that school facilities are principally available for public use on Sundays* *results in an unintended bias in favor of Christian religions, which prescribe Sunday as the principal day for worship services. Jews and Muslims generally cannot use school facilities for their services because the facilities are often unavailable on the days that their religions principally prescribe for services. At least one request to hold Jewish services (in a school building used for Christian services on Sundays) was denied because the building was unavailable on Saturdays. This contributes to a perception of public schools as Christian churches, but not synagogues or mosques. On Mon, Aug 15, 2011 at 8:41 AM, <hamilto...@aol.com> wrote: > Big surprise that I disagree with Marty on the Bronx Household of Faith > case. The decision should stand. There was no targeting a la Lukumi. > Instead, you have the question in the big picture whether public > institutions must host weekly worship services for a religious group that > turns the institution into a church 1 day/week. Not even remotely like the > facts in Good News Club or Rosenberger in my view. > > Marci > >
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