Nelson Tebbe
Can a government deny support for a specific exercise of religion? Yesterday, the Supreme Court declined to review Bronx Household of Faith, an important decision from the Second Circuit that allowed one such denial of support. Although that decision is surprising as a matter of constitutional politics, it is probably correct conceptually and as a matter of doctrine.
At issue is a New York City policy that disallows using public school buildings after hours for “religious worship services” or for use “as a house of worship.” Under the policy, religious organizations may use the buildings on the same terms as other community groups for study and even prayer. Those uses are required by Supreme Court rulings that require equal access for religious groups under the Speech Clause. But the city drew the line at using the buildings for actual worship services. Support is the issue, not just access, because the city lets the groups rent the buildings at below-market rates.
Lawyers for the city make several arguments in support of the policy, but the essence of the city’s concern is that public school buildings will come to be identified as houses of worship. Moreover, the city is worried about perceived favoritism among religious groups. Because the buildings are used by the schools on many Fridays and Saturdays, they are effectively only available to groups that worship on Sundays – mainly Christian denominations.
While the policy was vigorously defended by the Bloomberg administration, Mayor DeBlasio criticized it before he became Mayor. More generally, too, the DeBlasio administration has a more nuanced and complicated position on church-state relations. In fact, many observers have been surprised that Mayor DeBlasio has not repealed the policy and that the city’s lawyers continue to defend it in court. One reason may be that until now, the policy has been enjoined by the courts and therefore has not been in force.
For years, the policy barring worship services has been in litigation. In an early stage, the district court ruled that barring worship services constituted impermissible viewpoint discrimination under the Speech Clause. That decision was reversed by the Second Circuit in an opinion written by Judge Leval and joined by Judge Calabresi, who reasoned that worship was a distinct type of activity with no analogue in secular expression or practices. Although a powerful dissent from Judge Walker urged the Supreme Court to take the case, the Justices declined to do so in 2011.
In a subsequent stage of the litigation, the district court ruled that the policy violated the Free Exercise Clause because it constituted discrimination on the basis of religion. That decision, too, was reversed by the same lineup in the Second Circuit just last year. Judge Leval reasoned that the city’s policy was merely a decision not to subsidize a protected activity rather than prohibited discrimination under the religion clauses. It compared the case to Locke v. Davey, where the Court upheld a Washington State college scholarship program that was available to all students who met certain criteria – except those majoring in the study of religion from a faith perspective. Like that program, the Second Circuit ruled, the New York City policy merely declines to subsidize an important liberty right without burdening it. Once more, that decision drew a sharp dissent from Judge Walker, who argued that the policy was much more like the City of Hialeah’s decision to ban animal killing out of antipathy toward Santeria, which practices animal sacrifice. Just as the Court struck down that instance of discrimination, Judge Walker reasoned, it should grant cert. and invalidate New York City’s biased policy under the Free Exercise Clause.
The Court was probably right to decline that invitation as a matter of substantive doctrine. I have argued that the practice of “excluding religion” from government support mostly ought to be permissible under the Free Exercise Clause, even when the exclusion is specific to religion. Partly, that is because free exercise is best conceptualized as a liberty right that can be defunded without being abridged. It is like substantive due process in that way, as the Locke v. Davey Court recognized when it implicitly compared the case to abortion funding disputes. There, the Court has held that government may defund protected activity without impermissibly burdening it.
Another reason for allowing the government discretion to defund religion is that it allows the government to bolster basic nonestablishment values. New York City’s policy is a good example of that. The city was legitimately concerned that public school buildings were becoming identified with particular houses of worship in certain neighborhoods. That perception can abridge many of the various values identified with the Establishment Clause, including community harmony along religious lines, equal standing for nonfavored citizens, and support for the religious autonomy of people of other faiths or no faith. Even if opening the doors of public schools for actual worship would not be prohibited under current Establishment Clause doctrine, governments still should have some discretion to take into account local establishment effects and the concerns they raise.
Of course, there are limits on the practice of excluding religion. For example, governments cannot discriminate on the basis of faith, they should not be permitted to act on animus, and they should not impose unconstitutional conditions as part of their support programs. But none of these limits is at issue in the New York City situation.
Note that the Free Speech Clause is not central to today’s denial of cert., which concerned only the Second Circuit’s free exercise ruling (though the petitioners tried to implicate the 2011 speech decision as well). When it comes to free speech, the doctrine is much more favorable to the city, since the Court has repeatedly reasoned that targeting religious perspectives for defunding amounts to viewpoint discrimination. For the moment, it seems as if the Second Circuit’s ruling that worship is different in kind will stand. Under that approach, excluding worship from public school buildings involves only a reasonable decision that the content of the speech is not appropriate, given the purposes of opening the schools to community groups, and that in this way worship services are like other forms of excluded activity such as gambling or commercial use.
What will happen now in New York City? Mayor DeBlasio said today that he is committed to keeping the schools open for worship services. It will be interesting to see how exactly the city refashions the policy so that worship services in New York City public schools may continue, while still protecting nonestablishment clause values.
Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School.