Don’t Force New York City Public Schools To Subsidize Religion, Americans United Urges Federal Appeals Court

Church-State Watchdog Group Says Constitution Does Not Require Government To Let Churches Hold Worship Services In Schools

Americans United for Separation of Church and State has asked a federal appeals court to find that government has the right to deny religious institutions access to public schools for worship services.

In a friend-of-the-court brief, Americans United urged the 2nd U.S. Circuit Court of Appeals to uphold a New York City Board of Education policy that prohibits churches from conducting religious worship services in public schools.

“When churches hold Sunday services in public schools for years and years without paying rent, it sends a message to students and the public that government favors religion,” said the Rev. Barry W. Lynn, executive director of Americans United. “Public schools should serve the public interest, not a private sectarian purpose.” 

Last year, the 2nd U.S. Circuit Court of Appeals ruled that Bronx Household of Faith could no longer use a New York City public school to hold worship services, upholding a city policy. The congregation of about 50 had been using a public school, rent free, for almost 10 years.

The U.S. Supreme Court later declined to hear the dispute, so the church took its case to the U.S. District Court for the Southern District of New York, arguing that its right to free exercise of religion was being abridged. In June, the district court sided with the church, holding that it was being unfairly targeted since other groups are allowed to use public schools for after-school or weekend activities.

Americans United disagrees with the district court’s finding, noting that the U.S. Supreme Court and other federal courts have repeatedly held that governments may deny to religious institutions subsidies that are available to non-religious organizations.

The First Amendment’s Free Exercise Clause, AU asserts, does not give religious groups a claim to government subsidies.

In the case of Locke v. Davey, for example, the Supreme Court upheld a state law that prohibited the use of state scholarships by those seeking a theology degree.

The New York City board’s policy is similar to the one at issue in Locke because it imposes no more than a minor burden on religious practice, accommodates religious groups by allowing school facilities to be used for religious activities that fall short of a worship service and is motivated by the important government interest of not subsidizing or promoting religious institutions.

The Americans United brief in Bronx Household of Faith v. Board of Education of the City of New York was authored by AU Associate Legal Director Alex J. Luchenitser, in consultation with AU Legal Director Ayesha N. Khan and with assistance from former AU Steven Gey Fellow Natalie Shapero and current Steven Gey Fellow Randall Maas.*

(*Maas is a 2012 law school graduate; not admitted to any bar.)

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.