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A Case for Opening Schools to Worship

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Can New York City bar religious worship in its school buildings? This very basic question about the First Amendment has been hotly contested in the courts for years -- and the U.S. Supreme Court is expected to announce Monday whether it will take the case. If it does, as I expect it will, the case will probably be a landmark in constitutional law. It poses perfectly the tension between the free exercise of religion on the one hand and the nonestablishment of religion on the other. Getting it right won't be easy for the court, because there's no one right answer.

No one involved in the case is arguing for prayer during the school day. The controversy involves afterschool uses of school buildings by outside organizations. New York City regulations make these spaces available to all comers for a wide range of civic purposes. And no one disputes that religious organizations are entitled to use those school spaces for civic activities, on the same terms as secular organizations.

The core of the case is a regulation that specifically prohibits the use of schools for religious worship or prayer. A small church called the Bronx Household of Faith says this law discriminates against its free exercise of religion as well as its right to free speech from a religious viewpoint. New York says the law is intended to protect the city from establishing a religion, and therefore cannot be understood as discrimination against the church’s free exercise or free speech.

Who's right under the Constitution? The question turns out to be devilishly hard. To understand the legal issues, you have to break them into two parts, each corresponding to a different part of the First Amendment.

Let's start with the religion part of the First Amendment. The church says that the city’s regulation targets religion and therefore violates the free exercise clause. The U.S. Court of Appeals for the 2nd Circuit held to the contrary that the city is trying to avoid violating the establishment clause by subsidizing religious worship.

In a decision written by the gentle liberal lion Pierre Leval, and joined by fellow liberal Guido Calabresi, the former dean of the Yale Law School, the court said the controlling precedent was a 2004 Supreme Court decision, Locke v. Davey. That case involved a Washington state scholarship program that was available for excellent students but couldn't be used to pursue a degree in theology or the ministry. The court upheld the law, explaining that there was “play in the joints” between the free exercise clause prohibition on discriminating against religion and the establishment clause’s protection against subsidy. The decision wasn't very clearly reasoned, but its essence was that the state could choose not to subsidize religion even if it might have been legal for it to provide the subsidy in a nonpreferential way.

The brilliance of Leval's opinion lies in his claim that the New York City regulation does the same thing as the Washington state law, and therefore doesn't impermissibly target religion. It would be legal for New York City to allow the religious worship so long as it did so nonpreferentially. But under Locke v. Davey, that shouldn’t matter.

It's unclear whether five justices would apply Locke here, but it’s at least possible that they would.

Now let's turn to the free speech part of the First Amendment: Here, the case is harder still. In the 1995 case Rosenberger v. Rectors and Visitors of the University of Virginia, the Supreme Court said that when the government opens up a physical space or a form of subsidy for the full range of civic activities, it can't exclude religious versions of those activities. According to the court’s jargon, the government has created a “limited public forum.” Within that forum, the government can't discriminate against speech on the basis of viewpoint. And religion, the court said, is a viewpoint like any other.

Taken on its face, the Rosenberger decision means that New York City can't exclude religious organizations from using its school spaces without violating their free speech. The city says that it allows religious organizations to use the schools for any purpose similar to other organizations -- the only thing they can't do is hold religious services. The 2nd Circuit agreed. Religious worship, the court held, is a category of activity, not a viewpoint. And the government is allowed to exclude certain categories of activity from a limited public forum, provided it doesn't discriminate on the basis of viewpoint.

The court’s distinction is subtle and plausible -- but unlikely to get five votes on the current Supreme Court. Is religious worship categorically different from, say, a concert, a lecture or a class on a secular subject?

Imagine, for example, that a secular choral group wanted to sing Beethoven's “Missa Solemnis” -- which is, after all, a mass. It looks like viewpoint discrimination to say that the secular group can sing the mass but the religious group can't sing the same words while believing that transubstantiation is taking place while they sing them.

The irony, then, is that the church may well win this case in the Supreme Court -- but on the grounds of free speech, not free exercise of religion. If this outcome seems wrong to you, blame it on the doctrine of the limited public forum. But remember, too, that religious worship is just another form of self-expression. Even if you think it shouldn't be treated better than other speech, it probably shouldn't be treated worse.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net