A federal appeals court on Thursday ruled that a New York City regulation banning religious worship services inside school buildings after hours was constitutional.
In a 2-1 decision, the 2nd U.S. Circuit Court of Appeals said the New York City Board of Education’s regulation, created so the city would not be perceived as endorsing religious activity in a public forum, “was consistent with its constitutional duties.”
The rule prohibits school buildings from being used for religious worship services or as a house of worship, but the city allows groups to use schools for non-religious activities.
The appeals court’s decision marks the latest chapter in a two-decade legal battle between the city’s Board of Education and religious groups over the regulation.
It reversed a June 2012 decision from U.S. District Judge Loretta Preska, who permanently enjoined the city from enforcing the ban. Preska had held that allowing the worship services did not suggest that the school would be endorsing religion.
The 2nd Circuit said the regulation reflected the Board of Education’s “reasonable concern to observe interests favored by” the Establishment Clause of the U.S. Constitution, which provides for a separation of church and state, while avoiding “the risk of liability under that clause.”
Thursday’s ruling marked the sixth time the case, which the U.S. Supreme Court declined to review in 2011, was before the 2nd Circuit, the court said.
In the case, the Bronx Household of Faith, a conservative Congregational church, said the city’s regulation violated its constitutional right to exercise religion free from government interference.
The court disagreed that the regulation would violate the rights of the church because city schools are the only location it could afford to gather as a full congregation.
“The Free Exercise Clause, however, has never been understood to require government to finance a subject’s exercise of religion,” Circuit Judge Pierre Leval wrote for the panel.
In dissent, Circuit Judge John Walker said: “Allowing an entity to use public school space open to all others on equal terms is hardly financing that entity.”
Jordan Lorence, a lawyer for the Bronx Household of Faith, said he was disappointed with the ruling.
“To single out the religious users and call that a subsidy is like saying the government subsidizes a Jewish synagogue by allowing it to hook up to the water system,” Lorence said. “These are common benefits available equally to everyone, and religious worship services should not be singled out.”
Lawyers for the city did not immediately respond to a request for comment.
Reporting by Bernard Vaughan; Editing by Noeleen Walder, Lisa Von Ahn and Ellen Wulfhorst