How many times do we need to go over this?
Apparently, at least once more: The Supreme Court will conference on a certiorari petition in yet another round of Bronx Household of Faith v. Board of Education of the City of New York – a dispute that has been going on for 20 years and has been to the Second Circuit five times. Consider this a late amicus brief in support of granting certiorari.
The justices really ought to take this one, both to slap down an intransigent Second Circuit and to vindicate a core constitutional principle: The Establishment Clause of the First Amendment does not in any way authorize, and the Free Speech and Free Exercise Clauses do not permit, direct government discrimination against religion, religious persons, religious groups, or religious expression in government programs, policies, benefits, or forums. Ever. Government may not directly exclude religious persons or beneficiaries from programs or benefits available to other persons or groups, just because they are religious. And government may not jigger its categories to artfully gerrymander religious persons, organizations, and institutions out of equal inclusion in such programs or benefits. Ever.
The two-decade epic course of the Bronx Household of Faith litigation is almost worthy of its own Lord of the Rings–style movie trilogy. But the core issue is really quite simple. A fledgling church has long sought to use (paying the customary fee) New York City public-school buildings for weekend worship services, on the same terms as school buildings are made available to a wide array of other community groups for after-school-hours uses. However, the New York City Board of Education has persistently refused to treat the Bronx Household of Faith the way it treats every other community group, precisely because this community group wishes to engage in “religious worship.”
That’s it.
Yes, indeed, we’ve been around this block before. Just writing from my neighborhood coffee shop, without looking at briefs or string cites, I can easily rattle off several Supreme Court precedents that establish the wrongness of the New York school board’s position. Let’s start with Widmar v. Vincent (1981). In that case, the Court held, 8 to 1, that a state university could not prevent a religious student group from holding meetings at the university center on the same terms as other student groups, simply because its members wished to engage in “religious worship.” The university’s exclusion violated both the Free Speech Clause (because it was a content-based restriction on expression in a limited public forum) and the Free Exercise Clause (because it constituted clear discrimination against religion), and could not plausibly be justified by the university’s exaggerated concerns about not violating the Establishment Clause. The Establishment Clause is not violated — the Court held, unequivocally — by equal inclusion of religious groups and religious expression, in a forum or program or benefit available to other similarly situated student groups. (A few years back, for the 30th anniversary of Widmar, I wrote a short piece praising Widmar’s directness, correctness, and importance.)
Or how about Lamb’s Chapel v. Center Moriches Union Free School District (1993)? In that case, the Court unanimously reversed a lower court’s ruling — the Second Circuit again — that had permitted a public-school district to forbid a religious group to use public-school facilities, after hours, to show a religious film series. Lamb’s Chapel was a smackdown: The Court held that government may not discriminate against religious expression, in a forum otherwise made available for community-group use, simply because of the religious nature of the film series and discussions. The Establishment Clause argument was again laughed out of the Supreme Court.
No news, then, was Good News Club v. Milford Central School (2001): The Supreme Court again reversed the seemingly persistently intransigent Second Circuit, holding, 6 to 3, that meetings of a religious student club, held after school at an elementary school, could not be barred from public-school buildings, where similar community groups were allowed to meet. Worship, schmership. Speech is speech. Religious expression, religious groups, religious content, religious viewpoint — none of this is a proper basis for government exclusion of a particular group from a facility, program, or benefit otherwise available to all.
Bronx Household of Faith is cut from exactly the same cloth as Widmar, Lamb’s Chapel, and Good News. Yet like Frodo trying to make it to Mount Doom to save Middle Earth from darkness, the Bronx Household of Faith has faced the determined resistance of evil hazards of every kind. The Second Circuit has held, craftily but completely unpersuasively, that, no, this is not discrimination against religion. Nuh-uh. It is simply a neutral exclusion of a particular category of after-school uses. Excluding “religious worship” has nothing to do with exclusion on the basis of religion. And the Second Circuit has also held, almost nonsensically (and quite inconsistently with its “neutrality” charade), that the Establishment Clause, even if not requiring such exclusion of religious worship, justifies “play-in-the-joints” discrimination against religion. Establishment Clause paranoia warrants a Free Exercise Clause violation.
Can we please put these silly arguments away, once and for all? The Second Circuit may be the most persistent, obstreperous, unreasonable offender, but the issue arises frequently enough, in varying forms, to make it clear that the problem of government discrimination against religion, whether out of legal ignorance or out of outright hostility to religion, is pervasive enough to warrant review. The monster just won’t stay dead. (The cert. petition highlights the many conflicts among lower courts on this issue.)
Another reason for the Supreme Court to jump in is that the problem of resistance to this seemingly most elementary of First Amendment principles is, to some extent, a problem of the Court’s own creation — a function of loopholes seemingly generated or left open by the Court’s own doctrines and prior decisions. Fine distinctions in the Court’s opinions between “content-based” and “viewpoint-based” speech exclusions or discrimination, while sometimes tenable in theory, have invited disingenuous evasion in practice. “Oh, no, we aren’t discriminating against religious expression or religious beneficiaries on the basis of viewpoint! We’re just excluding a category of expression or group from our description of the content of our forum or program!” (The correct answer is that viewpoint discrimination is simply an especially egregious and particularly indefensible type of content discrimination.)
And the Court’s bewilderingly wrong decision in Locke v. Davey (2004) — seemingly inconsistent with every other decision in this line of cases — gives aid and comfort to those who would exclude religious beneficiaries and groups from government programs for which they are otherwise eligible. The cert. petition in Bronx Household shows persuasively that Locke is distinguishable by its own terms. Equal access to a forum for expression has never been thought a financial benefit of any kind; and any such suggestion would mean that the Court’s decisions in Widmar, Lamb’s Chapel, and Good News were all wrong. The Second Circuit absurdly treated equal access to a forum for expression as a form of government financial subsidy, and tried to make this straightforward equal-access case into a government-merely-declining-to-subsidize-religion case. That is, of course, ludicrous. The Bronx Household of Faith would pay the same rental fees as anybody else. This is not remotely a case of financial support (as the benefit at issue in Locke was much more plausibly viewed). It is no more a “subsidy” of religion to let a church make use of school facilities after hours, on the same terms and subject to the same fees as any other community group, than it is to let a religious group make use of a public park on the same terms and conditions as everyone else. Thus, the Court could readily reverse in Bronx Household of Faith without going anywhere in the neighborhood of the issue presented in Locke v. Davey — other than to note that the Second Circuit’s leveraging of that case was wildly inappropriate.
But perhaps it is time explicitly to limit Locke to its facts, or to repudiate it outright as contrary to the principles of essentially every other decision the Court has made in this area — a derelict in the stream, as it were, and a source of confusion for some lower courts and a prop for evasion for others. The Court has seen some important personnel changes since Locke v. Davey. Chief Justice William Rehnquist wrote a decidedly narrow, limited, “damage control” opinion for the Court in that case. As written, it is a case about direct government grants specifically funding theology instruction — and it holds only that government is not required to fund such scholarships. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), Chief Justice John Roberts, who now sits in the center chair, wrote one of the most outstanding, clear-headed, religious-freedom-sensitive opinions for the Court in decades. If anyone can navigate around, and clean up, Locke, it is Roberts, a master craftsman. Justice John Paul Stevens — the most consistently religion-hostile Supreme Court justice of the past 50 years — has been replaced by Justice Elena Kagan, a decided improvement for religious liberty and for freedom of speech. Kagan joined Justice Samuel Alito’s excellent pro-religious-freedom concurrence in Hosanna. Kagan has a less indulgent view of the Establishment Clause than some justices on the right, as her dissenting opinion in Town of Greece, N.Y., last term shows, but she is smart, principled, and sensitive. There is no way she would sit still for the Second Circuit’s shenanigans. And then there’s Alito, the author both of the terrific concurrence in Hosanna-Tabor and of the outstanding Hobby Lobby decision last term and perhaps the best Justice on the Court for religious-liberty issues. Alito almost certainly would not have voted with the majority in Locke v. Davey. It is conceivable that a majority now thinks Locke wrongly decided, or at least dubious, on its own terms. Thus, while it would not at all be necessary to overrule Locke in order to reverse Bronx Household, keeping lower courts from heading down a mistaken (or dishonest) path supposedly marked by Locke might be another reason for the Court to take this case.
I have something of a personal stake in these issues. From 1995 to 2001, I was counsel in a seemingly interminable case somewhat of this genre, involving religion-based exclusion from a “benefit” program otherwise available to similarly situated persons. (But my case took a mere six years, not 20.) I represented two children with disabilities who were entitled, under federal and state law, to the assistance of state-provided paraprofessionals to be with them and attend to their physical needs during the school day, in order to enable them to attend school. The State of Minnesota had a rule, and two local school districts had policies based on that rule, that such paraprofessionals would be provided only at public schools or at non-religious private schools: Kids attending religious schools were the only ones who could not receive on-premises paraprofessional services — services to which they were otherwise entitled and that they needed if they were to function in a regular classroom environment.
Sarah Peter, a child with Down Syndrome, went to Noah’s Ark preschool — a church-based preschool in a small town near Minneapolis. Aaron Westendorp, whose condition of spastic quadriparesis essentially paralyzed his mid-section, wished to attend Calvin Christian School (as his older sisters had) in his family’s suburban neighborhood in Edina. The state’s justification for its rule was that it believed that avoiding a potential violation of the Establishment Clause required it. (Wrong.) Edina’s justification for its policy — even after the state attorney general’s office abandoned its defense of the rule — was the utterly implausible one that its policy was neutral with respect to religion: It merely excluded a particular category of school at which the benefit would be provided. (Dishonest and mean.) We argued that exclusion from a benefit program on the basis of religious expression or identity violated the Free Speech and Free Exercise Clauses of the Constitution.
We won — but not without an initial loss in the U.S. District Court, an Eighth Circuit reversal, and a protracted on-the-ground battle. The Eighth Circuit opinion, reversing the initial grant of summary judgment, is a good one for the general principle involved, yet again, in Bronx Household of Faith. It is yet another circuit decision in conflict with the Second Circuit’s — but one not cited in the church’s petition. (What gives? Did they forget about the Eighth Circuit, out here in the hinterlands?)
Here is the applicable principle, taken from the Eighth Circuit’s opinion in Peter v. Wedl (with citations deleted): “Government discrimination based on religion violates the Free Exercise Clause of the First Amendment, . . . the Free Speech Clause of the First Amendment, . . . and the Equal Protection Clause of the Fourteenth Amendment.”
Short and sweet.
– Michael Stokes Paulsen is Distinguished University Chair and Professor of Law at the University of St. Thomas, in Minneapolis.