Bronx Household v. Board of Education ( 2011 )


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  •      07-5291-cv
    Bronx Household v. Board of Education
    1                                     UNITED STATES COURT OF APPEALS
    2                                         FOR THE SECOND CIRCUIT
    3                                                       August Term, 2010
    4   (Argued: October 6, 2009                                                  Decided: June 2, 2011)
    5                                                    Docket No. 07-5291-cv
    6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
    7   THE BRONX HOUSEHOLD OF FAITH,
    8   ROBERT HALL, and JACK ROBERTS,
    9                       Plaintiff-Appellees,
    10   v.
    11   BOARD OF EDUCATION OF THE CITY OF NEW
    12   YORK and COMMUNITY SCHOOL DISTRICT NO. 10,
    13                       Defendant-Appellants.
    14
    15   -------------------------------X
    16
    17
    18
    19   Before: WALKER, LEVAL, and CALABRESI, Circuit Judges.
    20           Defendants appeal from an order of the United States District Court for the Southern
    21   District of New York (Preska, C.J.) granting summary judgment to Plaintiffs and entering a
    22   permanent injunction barring the Board of Education of the City of New York from enforcing a
    23   rule that prohibits outside groups from using school facilities after hours for “religious worship
    24   services.” The Court of Appeals (Leval, J.) concludes that (1) because the rule does not exclude
    25   expressions of religious points of view or of religious devotion, but excludes for valid non-
    1
    1   discriminatory reasons only a type of activity – the conduct of worship services, the rule does not
    2   constitute viewpoint discrimination; and (2) because Defendants reasonably seek by this rule to
    3   avoid violating the Establishment Clause, the exclusion of religious worship services is a
    4   reasonable content-based restriction, which does not violate the Free Speech Clause.
    5   Accordingly, the judgment of the district court is reversed and the injunction barring
    6   enforcement of the rule against Plaintiffs is vacated.
    7          Judge Calabresi concurs in the opinion and has filed an additional concurring opinion.
    8          Judge Walker dissents by separate opinion.
    9                                                JANE L. GORDAN, Senior Counsel (Edward F.X.
    10                                                Hart, Lisa Grumet, Janice Casey Silverberg, on the
    11                                                brief), for Michael A. Cardozo, Corporation
    12                                                Counsel of the City of New York, New York, New
    13                                                York, for Appellants.
    14                                                JORDAN W. LORENCE, Alliance Defense Fund,
    15                                                Washington, D.C. (Joseph P. Infranco, Jeffrey A.
    16                                                Shafer, David A. Cortman, Benjamin W. Bull, on
    17                                                the brief), for Appellees.
    18                                                Michael J. Garcia, United States Attorney for the
    19                                                Southern District of New York, New York, New
    20                                                York (David J. Kennedy, Assistant United States
    21                                                Attorney, Southern District of New York, Grace
    22                                                Chung Becker, Acting Assistant Attorney General,
    23                                                Dennis J. Dimsey, Eric W. Treene, Karl N. Gellert,
    24                                                Attorneys, Appellate Section, Civil Rights Division,
    25                                                U.S. Department of Justice, on the brief), for
    26                                                Amicus Curiae United States of America.
    27                                                Mitchell A. Karlan, Gibson, Dunn & Crutcher LLP,
    28                                                New York, New York (Aric H. Wu, Farrah L.
    29                                                Pepper, Gibson, Dunn & Crutcher LLP, Carol
    30                                                Nelkin, Jeffrey P. Sinensky, Kara H. Stein, The
    31                                                American Jewish Committee, on the brief), for
    32                                                Amicus Curiae The American Jewish Committee.
    33                                                Isaac Fong, Center for Law and Religious Freedom,
    34                                                Springfield, Virginia (Kimberlee Wood Colby,
    35                                                Gregory S. Baylor, on the brief), for Amicus Curiae
    36                                                The Christian Legal Society.
    2
    1                                                 Eloise Pasachoff, Committee on Education and the
    2                                                 Law, Association of the Bar of the City of New
    3                                                 York, New York, New York (Jonathan R. Bell,
    4                                                 Rosemary Halligan, Laura L. Himelstein, on the
    5                                                 brief), for Amicus Curiae Association of the Bar of
    6                                                 the City of New York.
    7    LEVAL, Circuit Judge:
    8           Defendants, the Board of Education of the New York City Public Schools and
    9    Community School District No. 10 (collectively, “the Department of Education” or “the
    10   Board”),1 appeal from an order of the United States District Court for the Southern District of
    11   New York (Preska, C.J.), which granted summary judgment to Plaintiffs the Bronx Household of
    12   Faith (“Bronx Household”), a Christian church, and its pastors Robert Hall and Jack Roberts,
    13   and permanently enjoined the Board from enforcing against Bronx Household a Standard
    14   Operating Procedure (“SOP”) that prohibits the use of school facilities by outside groups outside
    15   of school hours for “religious worship services.” We conclude that the challenged rule does not
    16   constitute viewpoint discrimination because it does not seek to exclude expressions of religious
    17   points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons
    18   only a type of activity – the conduct of worship services. We also conclude that because
    19   Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the
    20   exclusion of religious worship services is a reasonable content-based restriction, which does not
    21   violate the Free Speech Clause. Accordingly, we reverse the judgment of the district court and
    22   vacate the injunction.
    1
    The Board of Education of the City of New York has been reorganized and renamed the
    New York City Department of Education. See, e.g., D.D. ex rel V.D. v. New York City Bd. of
    Educ., 
    465 F.3d 503
    , 506 n.1 (2d Cir. 2006).
    3
    1                                            BACKGROUND
    2          The relevant facts are familiar, and are not in dispute. See Bronx Household of Faith v.
    3   Bd. of Educ. of the City of New York (Bronx Household III), 
    492 F.3d 89
     (2d Cir. 2007). Under
    4   New York State law, a local public school district may permit its facilities to be used outside of
    5   school hours for purposes such as “social, civic and recreational meetings and entertainments,
    6   and other uses pertaining to the welfare of the community,” as long as the uses are “nonexclusive
    7   and . . . open to the general public.” 
    N.Y. Educ. Code § 414
    (1)(c). Pursuant to this provision,
    8   New York City’s Department of Education developed a written policy governing use of school
    9   facilities during after-school hours as part of its Standard Operating Procedures Manual. The
    10   policy, or SOP, permits outside groups to use school premises for the purposes described in the
    11   state law, when the premises are not being used for school programs and activities, but subject to
    12   limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property
    13   for “religious services or religious instruction.”2 Bronx Household of Faith v. Cmty. Sch. Dist.
    14   No. 10 (Bronx Household I), 
    127 F.3d 207
    , 210 (2d Cir. 1997).
    15          In 1994, Bronx Household applied to use space in the Anne Cross Mersereau Middle
    16   School (“M.S. 206B”) in the Bronx, New York, for its Sunday morning “church service[s].”
    17   Bronx Household of Faith v. Bd. of Educ. of the City of New York, 
    226 F. Supp. 2d 401
    , 410
    2
    SOP § 5.9 provided:
    No outside organization or group may be allowed to conduct
    religious services or religious instruction on school premises after
    school.     However, the use of school premises by outside
    organizations or groups after school for the purposes of discussing
    religious material or material which contains a religious viewpoint or
    for distributing such material is permissible.
    Bronx Household I, 
    127 F.3d at 210
    .
    4
    1   (S.D.N.Y. 2002) (quoting First Affidavit of Robert Hall). According to Bronx Household’s
    2   application, its services would include “singing of Christian hymns and songs, prayer, fellowship
    3   with other church members and Biblical preaching and teaching, communion, [and] sharing of
    4   testimonies,” followed by a “fellowship meal,” during which attendees “talk to one another,
    5   [and] share one another’s joys and sorrows so as to be a mutual help and comfort to each other.”
    6   
    Id.
     The Board denied Bronx Household’s application under SOP § 5.9. Bronx Household I, 127
    7   F.3d at 211.
    8          Plaintiffs brought suit, contending that the Board’s denial of Bronx Household’s
    9   application constituted viewpoint discrimination in violation of the Free Speech Clause of the
    10   First Amendment. The district court granted the Board’s motion for summary judgment, and
    11   dismissed the suit. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501, 1996
    
    12 WL 700915
     (S.D.N.Y. Dec. 5, 1996) (Preska, J.). We affirmed, concluding that the Department
    13   of Education had created a limited public forum by opening school facilities only to certain
    14   activities, and that the exclusion of religious services and religious instruction was viewpoint-
    15   neutral and reasonable in light of the forum’s purposes. Bronx Household I, 
    127 F.3d at 211-15
    ,
    16   217.
    17          In 2001, however, the Supreme Court ruled in Good News Club v. Milford Central
    18   School, 
    533 U.S. 98
     (2001), that it was unconstitutional for a public school district in Milford,
    19   New York, to exclude from its facilities “a private Christian organization for children,” which
    20   had requested permission to use space in a school building after school hours to sing songs, read
    21   Bible lessons, memorize scripture, and pray. 
    Id. at 103
    . The Milford district’s policy, in
    22   accordance with New York state law, permitted school facilities to be used for “social, civic and
    23   recreational meetings and entertainment events, and other uses pertaining to the welfare of the
    5
    1   community.” 
    Id. at 102
     (quoting 
    N.Y. Educ. Code § 414
    (1)(c)). However, it prohibited use “by
    2   any individual or organization for religious purposes,” which school district officials interpreted
    3   as prohibiting “religious worship” or “religious instruction.” Id. at 103-04. The Supreme Court
    4   concluded that the Good News Club was seeking to “address a subject otherwise permitted [in
    5   the school], the teaching of morals and character, from a religious standpoint,” and, therefore,
    6   the school district’s denial of the club’s application constituted impermissible viewpoint
    7   discrimination in the context of a limited public forum. Id. at 109.
    8          After the Supreme Court’s decision in Good News Club, Bronx Household applied again,
    9   and its application was again denied. Bronx Household of Faith v. Bd. of Educ. of the City of
    10   New York (Bronx Household II), 
    331 F.3d 342
    , 346-48 (2d Cir. 2003). Plaintiffs brought a new
    11   action, and this time the district court, citing Good News Club, preliminarily enjoined the Board
    12   from denying the permit. Bronx Household, 226 F. Supp. 2d at 427. We affirmed the
    13   preliminary injunction, finding that the district court did not abuse its discretion, and
    14   acknowledging the “factual parallels between the activities described in Good News Club and the
    15   activities at issue in the present litigation.” Bronx Household II, 
    331 F.3d at 354
    . After the
    16   issuance of the preliminary injunction, Bronx Household applied for, and was granted,
    17   permission to use P.S. 15 in the Bronx for its Sunday “Christian worship service[s].” Bronx
    18   Household III, 
    492 F.3d at 94, 101
     (Calabresi, J., concurring).
    19          Bronx Household thereafter moved for summary judgment to convert the preliminary
    20   injunction into a permanent injunction, and the Board cross-moved for summary judgment.
    21   During the pendency of the motions for summary judgment, the Board wrote to the district court
    6
    1   asking the court to adjudicate the issue under a revised SOP, numbered SOP § 5.11,3 which was
    2   intended to replace the old standard. The Board advised that the new SOP § 5.11 had been
    3   “approved at the highest levels of the Department of Education” and that if Bronx Household
    4   were to reapply, its application would be rejected under the new SOP § 5.11. Id. at 95 n.2. The
    5   text of the new SOP § 5.11 prohibited use of school property for “religious worship services, or
    6   otherwise using a school as a house of worship.”4 The district court, after initially expressing
    7   doubt about its jurisdiction to rule on the constitutionality of a rule whose status was unclear and
    8   which had not been applied against Plaintiffs, nevertheless concluded that the question was
    9   justiciable and granted summary judgment in favor of Bronx Household, permanently enjoining
    10   the Board from enforcing the proposed SOP § 5.11. Bronx Household of Faith v. Bd. of Educ. of
    11   City of New York, 
    400 F. Supp. 2d 581
    , 588, 601 (S.D.N.Y. 2005). The district court concluded
    12   that its decision was compelled by the Supreme Court’s decision in Good News Club.
    13          On appeal, a majority consisting of Judge Calabresi and me, over dissent by Judge
    14   Walker, vacated the permanent injunction, although we were divided as to the rationale for doing
    15   so. Bronx Household III, 
    492 F.3d at 91
     (per curiam). Judge Calabresi would have reached the
    3
    Before the revision of the standard was proposed, the old SOP § 5.9 was renumbered
    (without change in text) to § 5.11. To avoid confusion, in this opinion we use “SOP § 5.9” to
    refer to the standard utilized by the Board before revision of the text, and we use “SOP § 5.11”
    to refer to the new text quoted in footnote 4.
    4
    SOP § 5.11 states:
    No permit shall be granted for the purpose of holding religious
    worship services, or otherwise using a school as a house of worship.
    Permits may be granted to religious clubs for students that are
    sponsored by outside organizations and otherwise satisfy the
    requirements of this chapter on the same basis that they are granted
    to other clubs for students that are sponsored by outside
    organizations.
    7
    1   merits and would have ruled that the proposed SOP § 5.11 was a reasonable, viewpoint-neutral,
    2   content-based restriction. Id. at 100-06 (Calabresi, J., concurring). I concluded that litigation
    3   over the constitutionality of the proposed SOP § 5.11 was unripe for adjudication. Id. at 122-23
    4   (Leval, J., concurring). This was because the proposed rule, although “approved at the highest
    5   levels,” had not been promulgated by the Board, and Bronx Household had neither applied, nor
    6   been refused, under the new standard. Id. at 115, 122 n.8. Judge Walker wrote in dissent that he
    7   would have reached the merits and would have ruled that enforcement of the new SOP was
    8   barred by Good News Club, because in his view it constituted impermissible viewpoint
    9   discrimination. Id. at 123-24 (Walker, J., dissenting). We remanded the case to the district court
    10   for all purposes. Id. at 91 (per curiam).
    11          In July 2007, shortly after our decision remanding the case, the Board adopted the
    12   proposed SOP and published it for the first time. Bronx Household applied to use P.S. 15 under
    13   the new rule, stating in its application that it planned to use the facilities for “Christian worship
    14   services,” and the Board denied the application.5 Both parties then moved for summary
    15   judgment. The district court again granted summary judgment in favor of Bronx Household and
    16   permanently enjoined the Board from enforcing SOP § 5.11 against Bronx Household, adopting
    5
    Previously, the Board’s rules, which it published on its website, included no reference to
    the new SOP § 5.11; a person telephoning the Board to inquire whether there was a rule that
    governed use of school facilities after hours by religious groups was told no rule was in effect.
    In short, at the time we last heard this case, the new rule had not been promulgated, applied, or
    even disclosed to the public, and was not applied to Bronx Household. This led me to conclude,
    for reasons I explained in my concurring opinion, see 
    492 F.3d at 110-23
    , that there was no ripe
    controversy before the court as to the constitutionality of SOP § 5.11.
    Judges Walker and Calabresi have authorized me to say that upon reconsideration of the
    circumstances that obtained when the case was last before us, they are now far less confident that
    the case was in fact ripe for adjudication at that time. Now that the new SOP has been adopted,
    published, and applied against Bronx Household, the controversy is unquestionably ripe for
    adjudication.
    8
    1   the reasoning of its previous opinion. Bronx Household of Faith v. Bd. of Educ. City of New
    2   York, No. 01 Civ. 8598 (S.D.N.Y. Nov. 1, 2007) (Preska, J.).
    3          The case is now before us for the fourth time.
    4                                              DISCUSSION
    5          P.S. 15 is a limited public forum. See Bronx Household III, 
    492 F.3d at 97-98
     (Calabresi,
    6   J., concurring); 
    id. at 125
     (Walker, J., dissenting); Bronx Household I, 
    127 F.3d at 211-14
    . As
    7   explained in Judge Calabresi’s opinion in Bronx Household III, a category of speakers or
    8   expressive activities may be excluded from a limited public forum only on the basis of
    9   “reasonable, viewpoint-neutral rules.” Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426
    
    10 F.3d 617
    , 626 (2d Cir. 2005). Thus, the operator of a limited public forum may engage in
    11   “content discrimination, which may be permissible if it preserves the purposes of that limited
    12   forum,” but may not engage in “viewpoint discrimination, which is presumed impermissible
    13   when directed against speech otherwise within the forum’s limitations.” Rosenberger v. Rector
    14   & Visitors of the Univ. of Va., 
    515 U.S. 819
    , 830 (1995); see also Christian Legal Soc’y v.
    15   Martinez, 
    130 S. Ct. 2971
    , 2984 (2010); Good News Club, 
    533 U.S. at 106-07
    .
    16          SOP § 5.11, on its face, prohibits use of school facilities for two types of activities. The
    17   rule prohibits use of schools for “religious worship services,” and prohibits also “otherwise using
    18   a school as a house of worship.” Bronx Household stated in its application that it sought a
    19   permit to use P.S. 15 for “Christian worship services.” While the Board did not explain its
    20   rejection of the application, it is clear that an application to use the school for “Christian worship
    21   services” falls under the words of SOP § 5.11 prohibiting use for “religious worship services.”
    22   We therefore assume the Board relied, at least in part, on this clause of its rule in rejecting the
    23   application. (Accordingly, we need not, and this opinion does not, consider whether the Board
    9
    1   could lawfully exclude Bronx Household under the second, less precise, branch of the rule
    2   proscribing use of a school “as a house of worship.”)6
    
    3 A. 4
              The prohibition against using school facilities for the conduct of religious worship
    5   services bars a type of activity. It does not discriminate against any point of view. The conduct
    6   of religious worship services, which the rule excludes, is something quite different from free
    7   expression of a religious point of view, which the Board does not prohibit. The conduct of
    8   services is the performance of an event or activity. While the conduct of religious services
    9   undoubtedly includes expressions of a religious point of view, it is not the expression of that
    10   point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion
    11   to God, and the singing of hymns, whether done by a person or a group, do not constitute the
    12   conduct of worship services. Those activities are not excluded. Indeed SOP § 5.11 expressly
    13   specifies that permits will be granted to student religious clubs “on the same basis that they are
    14   granted to other clubs for students.” The branch of the rule excluding religious worship services,
    15   as we understand it, is designed by the Board to permit use of the school facilities for all of the
    16   types of activities considered by the Supreme Court in Good News Club, Lamb’s Chapel v.
    17   Center Moriches Union Free School District, 
    508 U.S. 384
     (1993), and Rosenberger v. Rector &
    18   Visitors of the University of Virginia, 
    515 U.S. 819
    , 830 (1995). The “religious worship
    6
    Nor does this opinion express any views as to whether “worship” may be lawfully
    excluded. Judge Walker criticizes this opinion for “declining even to consider” the
    constitutionality of the second branch of SOP § 5.11, which prohibits “using a school as a house
    of a worship.” Dissenting Op. 3. Because this opinion concludes that the Board’s rejection of
    Bronx Household’s application was lawful under the “religious worship services” branch of the
    rule, further inquiry into the whether the Board could also lawfully exclude Bronx Household
    under the “house of worship” branch of the rule is unnecessary to this ruling.
    10
    1   services” clause does not purport to prohibit use of the facility by a person or group of persons
    2   for “worship.” What is prohibited by this clause is solely the conduct of a particular type of
    3   event: a collective activity characteristically done according to an order prescribed by and under
    4   the auspices of an organized religion, typically but not necessarily conducted by an ordained
    5   official of the religion. The conduct of a “religious worship service” has the effect of placing
    6   centrally, and perhaps even of establishing, the religion in the school.7
    7          There is an important difference between excluding the conduct of an event or activity
    8   that includes expression of a point of view, and excluding the expression of that point of view.
    9   Under rules consistent with the purposes of the forum, schools may exclude from their facilities
    10   all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even
    7
    Judge Walker complains that our understanding of the meaning of the term “religious
    worship services” is “self-styled.” Dissenting Op. 8. We have not found in any dictionary a
    definition of the compound term “religious worship services.” Dictionaries define the verb to
    worship as “to honor or reverence as a divine being or supernatural power: VENERATE.”
    Webster’s Third New International Dictionary 2637 (1976); see also Oxford English Dictionary
    (Nov. 2010 online ed.), http://www.oed.com. (same). Worship, the noun, is defined as “an act,
    process, or instance of expressing such veneration by performing or taking part in religious
    exercises or ritual,” and “a form or type of worship or religious practice with its creed or ritual.”
    Webster’s Third New International Dictionary 2637. The word service is defined as “[w]orship;
    esp. public worship according to form and order,” “[a] ritual or series of words and ceremonies
    prescribed for public worship,” Oxford English Dictionary (Nov. 2010 online ed.), and “the
    performance of religious worship esp. according to settled public forms or conventions,”
    Webster’s Third New International Dictionary 2075.
    We believe the understanding we have put forth comports with common understanding
    and find nothing in dictionary definitions of the term’s three component words that is
    inconsistent with our understanding. Nor does Judge Walker offer a better definition, whether
    derived from a dictionary or another source.
    Furthermore, we do not understand why Judge Walker should concern himself with what
    we take SOP § 5.11 to mean by “religious worship services.” According to his argument, no
    matter what SOP § 5.11 means by “religious worship services,” it necessarily constitutes
    unlawful viewpoint discrimination because it excludes activity on the basis of the activity’s
    religious nature. If Judge Walker is right as to the applicable test, SOP § 5.11 is void no matter
    what it means by “religious worship services.”
    11
    1   though, by participating in and viewing such events, participants and spectators may express
    2   their love of them. The basis for the lawful exclusion of such activities is not viewpoint
    3   discrimination, but rather the objective of avoiding either harm to persons or property, or
    4   liability, or a mess, which those activities may produce. We think it beyond dispute that a
    5   school’s decision to exclude martial arts matches would be lawful notwithstanding the honest
    6   claim of would-be participants that, through participating in the matches, they express their love
    7   of the sport and their character. The exclusion would nonetheless not represent viewpoint
    8   discrimination. While a school may prohibit the use of its facilities for such activities for valid
    9   reasons, it may not selectively exclude meetings that would celebrate martial arts, cow breeding,
    10   or horseback riding, because that would be viewpoint discrimination. When there exists a
    11   reasonable basis for excluding a type of activity or event in order to preserve the purposes of the
    12   forum, such content-based exclusion survives First Amendment challenge notwithstanding that
    13   participants might use the event to express their celebration of the activity. See Rosenberger,
    14   
    515 U.S. at 829-30
    .
    15          Similarly, SOP § 5.11 prohibits use of school facilities to conduct worship services, but
    16   does not exclude religious groups from using schools for prayer, singing hymns, religious
    17   instruction, expression of religious devotion, or the discussion of issues from a religious point of
    18   view. While it is true without question that religious worship services include such expressions
    19   of points of view, the fact that a reasonably excluded activity includes expressions of viewpoints
    20   does not render the exclusion of the activity unconstitutional if adherents are free to use the
    21   school facilities for expression of those viewpoints in all ways except through the reasonably
    22   excluded activity. Under at least this branch of SOP § 5.11, the schools are freely available for
    23   use by groups to express religious devotion through prayer, singing of hymns, preaching, and
    12
    1   teaching of scripture or doctrine. It is only the performance of a worship service that is
    2   excluded.
    3          Nor is this rule of exclusion vulnerable on the ground that the activity excluded has some
    4   similarities to another activity that is allowed. To begin with, we reject the suggestion that
    5   because a religious worship service shares some features with activities such as a Boy Scout
    6   meeting, no meaningful distinction can be drawn between the two types of activities. See
    7   Dissenting Op. 11-12. Boy Scout meetings are not religious worship services. The fact that
    8   religion often encompasses concern for standards of conduct in human relations does not mean
    9   that all activity which expresses concern for standards of conduct in human relations must be
    10   deemed religion.
    11          The argument might be made that, because the rule prohibits use of facilities for
    12   “religious worship services,” it excludes religious worship services while permitting non-
    13   religious worship services. This argument is a canard. The presence of the word “religious” in
    14   the phrase is superfluous and does not change the meaning. There is no difference in usage
    15   between a “worship service” and a “religious worship service;” both refer to a service of
    16   religious worship. See Bronx Household I, 
    127 F.3d at 221
     (Cabranes, J., concurring in part and
    17   dissenting in part) (“Unlike religious ‘instruction,’ there is no real secular analogue to religious
    18   ‘services,’ such that a ban on religious services might pose a substantial threat of viewpoint
    19   discrimination between religion and secularism.”). We think, with confidence, that if 100
    20   randomly selected people were polled as to whether they attend “worship services,” all of them
    21   would understand the questioner to be inquiring whether they attended services of religious
    22   worship. While it is true that the word “worship” is occasionally used in nonreligious contexts,
    23   such as to describe a miser, who is said to “worship” money, or a fan who “worships” a movie
    13
    1   star,8 the term “worship services” has no similar use; meetings of a celebrity’s fan club are not
    2   described as “worship services.” Worship services are religious; the rule describes the entire
    3   category of activity excluded. The meaning of the rule’s exclusion of “religious worship
    4   services” would be no different if it identified the excluded activity as “worship services.”
    5          The application of SOP § 5.11 to deny Bronx Household’s request to use school facilities
    6   for worship services is thus in no way incompatible with the Supreme Court’s decisions in Good
    7   News Club, Lamb’s Chapel, and Rosenberger. In Good News Club, a school district had invoked
    8   a policy prohibiting after-hours use of a school for “religious purposes” to deny a Christian
    9   organization permission to use space in a school building for “religious instruction” of children
    10   aged 6 to 12. 
    533 U.S. at 103-04
    . The Supreme Court ruled that this exclusion violated the Free
    11   Speech Clause. 
    Id. at 120
    . The denial constituted viewpoint discrimination, rather than content-
    12   based restriction, because the school district refused to allow the teaching of moral lessons from
    13   a religious perspective, while permitting the teaching of moral lessons from a secular
    14   perspective. 
    Id. at 107-08
    .
    15          Similarly, in Lamb’s Chapel, the Court found unconstitutional a school district’s
    16   rejection of a church’s request to show a Christian film series about child rearing and family
    17   values, again on the basis of a policy prohibiting after-hours use of school property “for religious
    18   purposes.” Lamb’s Chapel, 
    508 U.S. at 387-89, 393
    . Like the moral lessons taught in the Good
    19   News Club, the film series “dealt with a subject otherwise permissible . . . [but] its exhibition
    8
    In the view of the author, such uses of the word are metaphorical. A statement that
    someone worships money or worships a movie star is intended to be understood as an assertion
    that the subject treats money or the movie star with the same devotion or reverence that a
    religious believer accords to God. (Judge Calabresi leaves open the question whether such
    statements are purely metaphorical or whether they too describe a form of worship. See
    Concurring Op. 1.)
    14
    1   was denied solely because the series dealt with the subject from a religious standpoint.” 
    Id.
     at
    2   394. And in Rosenberger, the Court concluded that the University of Virginia discriminated on
    3   the basis of viewpoint, when, in accordance with its policy, it refused to reimburse the printing
    4   expenses of a student newspaper with a Christian editorial perspective because the publication
    5   “promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality.”
    6   Rosenberger, 
    515 U.S. at 827, 831-32
    . Because the University’s refusal resulted from the
    7   newspaper’s “prohibited perspective, not the general subject matter,” it violated the Free Speech
    8   Clause. 
    Id. at 831
    .
    9          In each of those cases, the policy being enforced categorically excluded expressions of
    10   religious content. Here, by contrast, there is no restraint on the free expression of any point of
    11   view. Expression of all points of view is permitted. The exclusion applies only to the conduct of
    12   a certain type of activity – the conduct of worship services – and not to the free expression of
    13   religious views associated with it. It is clear that the Board changed its rule in order to conform
    14   to the dictates of Good News Club, abandoning the prohibition of “religious instruction” (which
    15   involved viewpoint discrimination). Indeed, SOP § 5.11 expressly permits use of school
    16   facilities by “religious clubs for students that are sponsored by outside organizations” on the
    17   same basis as other clubs for students sponsored by outside organizations.
    18          Accordingly, as SOP § 5.11's prohibition of “religious worship services” does not
    19   constitute viewpoint discrimination, it is a content-based exclusion, which passes constitutional
    20   muster so long as the exclusion is reasonable in light of the purposes of the forum.
    15
    
    1 B. 2
              We therefore go on to consider whether this exclusion is “reasonable in light of the
    3   purpose served by the forum.” Rosenberger, 
    515 U.S. at 829
     (quoting Cornelius v. NAACP
    4   Legal Def. & Educ. Fund, Inc., 
    473 U.S. 788
    , 806 (1985)). Precedent, furthermore, calls for
    5   giving “appropriate regard” to the Board’s judgment as to which activities are compatible with
    6   its reasons for opening schools to public use. Christian Legal Soc’y, 130 S. Ct. at 2989. By
    7   excluding religious worship services, the Board seeks to steer clear of violating the
    8   Establishment Clause. See Capitol Square Review & Advisory Bd. v. Pinette, 
    515 U.S. 753
    , 761-
    9   62 (1995) (“There is no doubt that compliance with the Establishment Clause is a state interest
    10   sufficiently compelling to justify content-based restrictions on speech.”); Widmar v. Vincent, 454
    
    11 U.S. 263
    , 271 (1981) (noting that an interest in avoiding a violation of the Establishment Clause
    12   “may be characterized as compelling”). In order to determine whether the content restriction for
    13   this purpose is reasonable and thus permissible, we need not decide whether use of the school for
    14   worship services would in fact violate the Establishment Clause, a question as to which
    15   reasonable arguments could be made either way, and on which no determinative ruling exists. It
    16   is sufficient if the Board has a strong basis for concern that permitting use of a public school for
    17   the conduct of religious worship services would violate the Establishment Clause. Marchi v. Bd.
    18   of Coop. Educ. Servs. of Albany, 
    173 F.3d 469
    , 476 (2d Cir. 1999) (“[W]hen government
    19   endeavors to police itself and its employees in an effort to avoid transgressing Establishment
    20   Clause limits, it must be accorded some leeway, even though the conduct it forbids might not
    21   inevitably be determined to violate the Establishment Clause . . . .”); cf. Ricci v. DeStefano, 129
    
    22 S. Ct. 2658
    , 2677 (2009) (race-based employment action violates Title VII unless the employer
    23   has a strong basis to believe it otherwise will be subject to disparate impact liability). We
    16
    1   conclude that the Board has a strong basis to believe that allowing the conduct of religious
    2   worship services in schools would give rise to a sufficient appearance of endorsement to
    3   constitute a violation of the Establishment Clause.
    4          The Supreme Court’s decision in Lemon v. Kurtzmann, 
    403 U.S. 602
     (1971), provides the
    5   framework for evaluating challenges under the Establishment Clause.9 The Court instructed in
    6   Lemon that government action which interacts with religion (1) “must have a secular . . .
    7   purpose,” (2) must have a “principal or primary effect . . . that neither advances nor inhibits
    8   religion,” and (3) “must not foster an excessive government entanglement with religion.” 
    Id.
     at
    9   612-13 (internal quotation marks omitted). In discussing the second prong of the Lemon test, the
    10   Supreme Court has warned that violation of the Establishment Clause can result from perception
    11   of endorsement. “The Establishment Clause, at the very least, prohibits government from
    12   appearing to take a position on questions of religious belief or from ‘making adherence to a
    13   religion relevant in any way to a person’s standing in the political community.’” Cnty. of
    14   Allegheny, 492 U.S 573, 593-94 (1989) (emphasis added) (quoting Lynch v. Donnelly, 
    465 U.S. 15
       668, 687 (O’Connor, J., concurring)); see also Lynch, 465 U.S. at 690 (O’Connor, J., concurring)
    16   (observing that the second prong of the Lemon test “asks whether, irrespective of government’s
    17   actual purpose, the practice under review in fact conveys a message of endorsement or
    18   disapproval”); Skoros, 437 F.3d at 17-18. It was certainly not unreasonable for the Board to
    19   conclude that permitting the conduct of religious worship services in the schools might fail the
    9
    Although the Lemon test has been much criticized, the Supreme Court has declined to
    disavow it and it continues to govern the analysis of Establishment Clause claims in this Circuit.
    Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 
    426 F.3d 617
    , 634 (2d Cir. 2005); see Skoros
    v. City of New York, 
    437 F.3d 1
    , 17 n.13 (2d Cir. 2006) (noting that this Court is required to
    respect precedent applying the Lemon test “until it is reconsidered by this court sitting en banc or
    is rejected by a later Supreme Court decision”).
    17
    1   second and third prongs of the Lemon test, and that the adoption of the “worship services”
    2   branch of SOP § 5.11 was a reasonable means of avoiding a violation of the Establishment
    3   Clause.
    4             The performance of worship services is a core event in organized religion. See Bronx
    5   Household, 226 F. Supp. 2d at 410 (quoting Pastor Hall describing Bronx Household’s Sunday
    6   worship service as “the indispensable integration point for our church”); Mark Chaves,
    7   Congregations in America 227 (2004) (reporting results of survey finding that 99.3% of religious
    8   congregations hold services at least once per week). Religious worship services are conducted
    9   according to the rules dictated by the particular religious establishment and are generally
    10   performed by an officiant of the church or religion. When worship services are performed in a
    11   place, the nature of the site changes. The site is no longer simply a room in a school being used
    12   temporarily for some activity. The church has made the school the place for the performance of
    13   its rites, and might well appear to have established itself there. The place has, at least for a time,
    14   become the church.
    15             Moreover, the Board’s concern that it would be substantially subsidizing churches if it
    16   opened schools for religious worship services is reasonable. The Board neither charges rent for
    17   use of its space, nor exacts a fee to cover utilities such as electricity, gas, and air conditioning.10
    18   The City thus foots a major portion of the costs of the operation of a church. It is reasonable for
    19   the Board to fear that allowing schools to be converted into churches, at public expense and in
    20   public buildings, might “foster an excessive government entanglement with religion” that
    21   advances religion. See DeStefano v. Emergency Hous. Group, Inc., 
    247 F.3d 397
    , 419 (2d Cir.
    10
    The only fee charged is for the partial cost of custodial work, and for security services
    when provided by the Board.
    18
    1    2001) (concluding that a publicly funded private hospital whose employees coerced patients to
    2    participate in a religious support group would violate the Establishment Clause, noting that the
    3    Supreme Court’s “‘decisions provide no precedent for the use of public funds to finance
    4    religious activities,’” and that “neutral administration of the state aid program . . . is an
    5    insufficient constitutional counterweight to the direct public funding of religious activities”
    6    (quoting Mitchell v. Helms, 
    530 U.S. 793
    , 840 (2000) (O’Connor, J., concurring in the
    7    judgment))).
    8           The Board could also reasonably worry that the regular, long-term conversion of schools
    9   into state-subsidized churches on Sundays would violate the Establishment Clause by reason of
    10   public perception of endorsement. Cf. Pleasant Grove City v. Summum, 
    129 S. Ct. 1125
    , 1132
    11   (2009) (ruling that monument in public park was properly viewed as government speech
    12   because, among other reasons, the monument was permanent). Such a concern has been
    13   vindicated by the experience in the schools in the seven years since the district court granted the
    14   preliminary injunction. For example, Bronx Household has held its worship services at P.S. 15,
    15   and nowhere else, every Sunday since 2002. Under the injunction, at least twenty-one other
    16   congregations have used a school building on Sundays as their regular place for worship
    17   services.11 During these Sunday services, the schools are dominated by church use. See Capitol
    18   Square, 
    515 U.S. at 777
     (O’Connor, J., concurring in part and concurring in the judgment) (“At
    19   some point . . . a private religious group may so dominate a public forum that a formal policy of
    20   equal access is transformed into a demonstration of approval.”). Because of their large
    11
    The record in this regard has not been updated since 2005. At oral argument, counsel
    for the Board told us that the number of churches using schools for worship services has
    increased substantially since that time.
    19
    1   congregations, churches generally use the largest room in the building, or multiple rooms,
    2   sometimes for the entire day. See Cnty. of Allegheny, 492 U.S. at 579, 599-600 (finding
    3   unconstitutional endorsement of religion where crèche was placed on the “Grand Staircase” of
    4   courthouse, the “main” and “most public” part of the building, which was not available to other
    5   displays simultaneously). Church members post signs, distribute flyers, and proselytize outside
    6   the school buildings. In some schools, no other outside organizations use the space.
    7   Accordingly, on Sundays, some schools effectively become churches. As a result of this church
    8   domination of the space, both church congregants and members of the public identify the
    9   churches with the schools. The possibility of perceived endorsement is made particularly acute
    10   by the fact that P.S. 15 and other schools used by churches are attended by young and
    11   impressionable students, who might easily mistake the consequences of a neutral policy for
    12   endorsement. Cf. Van Orden v. Perry, 
    545 U.S. 677
    , 703 (2005) (Breyer, J., concurring)
    13   (distinguishing lawful display of Ten Commandments from cases in which display was “on the
    14   grounds of a public school, where, given the impressionability of the young, government must
    15   exercise particular care in separating church and state”); Skoros, 
    437 F.3d at 24-25
     (“A mature
    16   reasonable objective observer . . . would take into consideration that schoolchildren are the
    17   intended audience for the displays, that these children are being reared in a variety of faiths (as
    18   well as none), and that, by virtue of their ages, they may be especially susceptible to any
    19   religious messages conveyed by such displays.”).12
    12
    The dissent maintains that Good News Club precludes the Board from relying on this
    concern, because the facts of this case present less reason to fear the appearance of endorsement
    than those of Good News Club. Dissenting Op. 22-23. We disagree with this assessment of the
    facts. In our view, Bronx Household’s long-term weekly use of P.S. 15 for Christian worship
    services at the Board’s expense, and the effective exclusion of competing religious groups who
    would wish to hold services in schools on days other than Sunday but are effectively precluded
    20
    1          Furthermore, the fact that school facilities are principally available for public use on
    2   Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as
    3   the principal day for worship services. Jews and Muslims generally cannot use school facilities
    4   for their services because the facilities are often unavailable on the days that their religions
    5   principally prescribe for services. At least one request to hold Jewish services (in a school
    6   building used for Christian services on Sundays) was denied because the building was
    7   unavailable on Saturdays. This contributes to a perception of public schools as Christian
    8   churches, but not synagogues or mosques.
    9          Finally, the religious services Bronx Household conducts in the school are not open on
    10   uniform terms to the general public. Bronx Household acknowledges that it excludes persons
    11   not baptized, as well as persons who have been excommunicated or who advocate the Islamic
    12   religion, from full participation in its services. See Bronx Household III, 
    492 F.3d at 120
     (Leval,
    13   J., concurring); cf. Christian Legal Soc’y, 130 S. Ct. at 2995 (upholding university’s denial of
    14   Registered Student Organization status to student group that refused to comply with non-
    15   discrimination policy for ideological reasons). The de facto favoritism of the Christian (Sunday
    16   service) religions over others, as well as the deliberate exclusion practiced by Bronx Household,
    17   aggravates the potential Establishment Clause problems the Board seeks to avoid.
    18          In the end, we think the Board could have reasonably concluded that what the public
    19   would see, were the Board not to exclude religious worship services, is public schools, which
    20   serve on Sundays as state-sponsored Christian churches. For these reasons, the Board had a
    by school-related activities from doing so, provides a substantially stronger basis for fearing an
    Establishment Clause violation than the after-school use of a single classroom by a religious
    group at issue in Good News Club.
    21
    1   strong basis to be wary that permitting religious worship services in schools, and thus effectively
    2   allowing schools to be converted into churches on Sunday, would be found to violate the
    3   Establishment Clause. To reiterate, we do not say that a violation has occurred, or would occur
    4   but for the policy. We do find, however, that it was objectively reasonable for the Board to
    5   worry that use of the City’s schools for religious worship services, conducted primarily on
    6   Sunday when the schools are most available to outside groups, exposes the City to a substantial
    7   risk of being found to have violated the Establishment Clause.
    8          This conclusion is not, as the dissent maintains, foreclosed by the Supreme Court’s
    9   precedents. We recognize that in Good News Club, Widmar, Lamb’s Chapel, and Rosenberger,
    10   the Supreme Court rejected arguments that the rules in question, and their application to bar or
    11   disfavor particular activities, were justified by concern to avoid violating the Establishment
    12   Clause. But those rulings were based on their particular facts, which are significantly different
    13   from those here. In none of those cases did the Supreme Court suggest that a reasonable concern
    14   to avoid violation of the Establishment Clause can never justify a governmental exclusion of a
    15   religious practice. In arguing that the Supreme Court’s precedents forbid our ruling, the dissent
    16   relies on broad statements of principle, often from opinions that did not command a majority of
    17   the Court, and contends that, taken together, they show the invalidity of the reasons the Board
    18   proffers for fearing an Establishment Clause violation. However, neither the Supreme Court nor
    19   this court has considered the constitutionality of a policy that allows the regular use of public
    20   schools for religious worship services. Indeed, the Court in Good News Club expressly declined
    21   to address the lawfulness of a policy that excludes “mere” religious worship, a category of
    22   activity which is substantially broader than the “religious worship services” covered by the first
    23   branch of SOP § 5.11. Good News Club, 
    533 U.S. at
    112 n.4.
    22
    1          In any event, the reasonableness of the Board’s concern to avoid creating a perception of
    2   endorsement resulting from regular Sunday conversion of schools into Christian churches,
    3   together with the absence of viewpoint-based discrimination, distinguishes this case from the
    4   Supreme Court’s precedents striking down prohibitions of the use of educational facilities or
    5   funds by religious groups. All of those cases involved rules or policies which broadly
    6   suppressed religious viewpoints and which, in their particular applications, disfavored activities
    7   which had far less potential to convey the appearance of official endorsement of religion. In
    8   Widmar, the challenged policy prohibited the use of university facilities for religious worship or
    9   even discussion. In Rosenberger, the challenged policy prohibited the reimbursement of
    10   expenses incurred by university student groups for activities that “primarily promote[d] or
    11   manifest[ed] a particular belie[f] in or about a deity or an ultimate reality.” 515 U.S. at 825.
    12   And in Lamb’s Chapel and Good News Club, the challenged policies prohibited the use of school
    13   district property for any and all “religious purposes.” See Good News Club, 
    533 U.S. at 103
    ;
    14   Lamb’s Chapel, 
    508 U.S. 387
    . In each case, the policy being enforced, unlike SOP § 5.11, was
    15   broadly categorical in its exclusion of religious content. In addition, the activities disallowed or
    16   disfavored under those policies – meetings of Christian clubs for students (in Widmar and Good
    17   News Club), the publication of a newspaper with a Christian editorial viewpoint (in
    18   Rosenberger), and the showing of a Christian film series (in Lamb’s Chapel) – were much less
    19   likely than the conduct of Sunday worship services to evoke an appearance of endorsement of
    20   religion by public school authorities. In determining that there was no danger of an
    21   Establishment Clause violation in these cases, the Supreme Court relied on the fact that facilities
    22   and funds were available to and used by numerous and diverse private groups. See Lamb’s
    23   Chapel, 
    508 U.S. at 395
     (observing that school district’s property “had repeatedly been used by a
    23
    1   wide variety of private organizations”); Rosenberger, 
    515 U.S. at 842
     (student activity funds
    2   were distributed to “a wide spectrum of student groups”); Widmar, 454 U.S. at 277 (university
    3   provided benefits to “over 100 student groups of all types”); Good News Club, 
    533 U.S. at
    113
    4   (district “made its forum available to other organizations”). In finding insufficient risk of the
    5   perception of endorsement, the Court observed in Widmar that university students are “young
    6   adults,” who are “less impressionable than younger students” and can therefore appreciate that a
    7   policy permitting religious student groups to use meeting space on the same basis as other types
    8   of student groups was neutral toward religion. 454 U.S. at 275-75 & n.14. And in Lamb’s
    9   Chapel and Good News Club, the Court found it significant that the proposed film exhibition and
    10   club meetings would be open to the public, not just to the members of the Christian groups
    11   sponsoring the events. See Good News Club, 
    533 U.S. at 113
    ; Lamb’s Chapel, 
    508 U.S. at 395
    .
    12          The use of P.S. 15 and other schools for Sunday worship services is more likely to
    13   promote a perception of endorsement than the uses in those cases. A worship service is an act of
    14   organized religion that consecrates the place in which it is performed, making it a church.
    15   Unlike the groups seeking access in those cases, Bronx Household and the other churches that
    16   have been allowed access under the injunction tend to dominate the schools on the day they use
    17   them. They do not use a single, small classroom, and are not merely one of various types of
    18   groups using the schools; they use the largest rooms and are typically the only outside group
    19   using a school on Sunday. They identify the schools as their churches, as do many residents of
    20   the community. The students of P.S. 15 are not the “young adults” of Rosenberger and Widmar,
    21   but young children who are less likely to understand that the church in their school is not
    22   endorsed by their school. The fact that New York City’s school facilities are more available on
    23   Sundays than any other day of the week means that there is a de facto bias in favor of Christian
    24
    1   groups who want to use the schools for worship services, compounded by the exclusionary
    2   practices of churches like Bronx Household.
    3          Furthermore, the Board’s prohibition on the use of school facilities for “religious worship
    4   services” is far less broad than the exclusions of use for “religious purposes” or “religious
    5   discussion” in the earlier cases, which included in their sweep activities that are similar to
    6   secular activities. The broad scope of the exclusions considered in the other cases resulted in
    7   viewpoint discrimination, rather than mere content restriction. The exclusions also disfavored
    8   more religious activity than necessary to avoid an actual Establishment Clause violation. In
    9   contrast, the “religious worship services” clause of SOP § 5.11 is narrowly drawn to exclude a
    10   core activity in the establishment of religion – worship services – and thereby avoid the
    11   perceived transformation of school buildings into churches.
    12          It is not our contention that the Supreme Court’s precedents compel our conclusion. On
    13   the other hand, we cannot accept Judge Walker’s contention that the Court has effectively
    14   decided this case. This case is terra incognita. The Supreme Court’s precedents provide no
    15   secure guidelines as to how it should be decided. The main lesson that can be derived from them
    16   is that they do not supply an answer to the case before us. Precedent provides no way of
    17   guessing how the Supreme Court will rule when it comes to consider facts comparable to these.
    18   By hunting and pecking through the dicta of various opinions, one can find snippets that
    19   arguably support a prediction either way. Judge Calabresi and I believe that the Board’s
    20   exclusion of Bronx Household’s conduct of worship services is viewpoint-neutral and justified
    21   by the Board’s reasonable concern that permitting use of school facilities for worship services
    22   would violate the Establishment Clause.
    23                                                 *   *    *
    25
    1          Bronx Household contends that SOP § 5.11 is not a measure reasonably designed to
    2   avoid an Establishment Clause violation but is instead itself a violation of that clause. Bronx
    3   Household argues that SOP § 5.11 fails the Lemon test because it sends a message of official
    4   hostility to religion and because its enforcement fosters excessive government entanglement with
    5   religion. We are not persuaded.
    6          As emphasized above, SOP § 5.11 prohibits worship services in schools, but permits the
    7   expression of religious points of view through activities such as prayer, singing of hymns,
    8   preaching, and teaching or discussion of doctrine or scripture. Given the broad range of
    9   expressive religious activity that the policy does allow, we do not think a reasonable observer
    10   would perceive hostility to religion in the enforcement of SOP § 5.11.
    11          Bronx Household also argues that SOP § 5.11 not only conveys the appearance of official
    12   hostility, but is in fact motivated by such hostility. We find no basis for this contention. Of
    13   course, “government must abstain from regulating speech when the specific motivating ideology
    14   or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger,
    15   515 U.S. at 829. However, we do not understand why Bronx Household attributes the Board’s
    16   position to hostility rather than a good faith desire to navigate successfully through the poorly
    17   marked, and rapidly changing, channel between the Scylla of viewpoint discrimination and the
    18   Charybdis of violation of the Establishment Clause.
    19          The Board has by no means been alone in the belief that the Establishment Clause
    20   requires governmental educational institutions to be cautious of harboring or sponsoring
    21   religious activities. The Supreme Court’s rulings in Rosenberger, Lamb’s Chapel, and Good
    22   News Club deviated from a previously widespread governmental and judicial perception of the
    23   scope of the Establishment Clause’s prohibitions. In each of those three cases, the school
    26
    1   administrators and the lower court judges believed that the challenged policies, which were
    2   intended to keep religion at a distance from public institutions, were mandated by the
    3   Establishment Clause, or at least consistent with the Constitution. And in two of the cases, a
    4   number of Supreme Court justices did as well.
    5           There is no better reason to believe, as Bronx Household suggests, that the Board was
    6   motivated by hostility toward religion than there is to believe that such hostility has motivated
    7   other school authorities throughout the country, the lower court judges and dissenting Supreme
    8   Court justices in Lamb’s Chapel, Rosenberger, and Good News Club, or Judge Calabresi and me.
    9   We see no sound basis for concluding that the Board’s actions have been motivated by anything
    10   other than a desire to find the proper balance between two clauses of the First Amendment, the
    11   interpretation of which by the Supreme Court has been in flux and uncertain.13
    12           Bronx Household also argues that SOP § 5.11 cannot be applied without
    13   unconstitutionally entangling the Board in matters of religious doctrine. See Agostini v. Felton,
    14   
    521 U.S. 203
    , 232-33 (1997). According to Bronx Household, any attempt by the Board to
    15   distinguish between religious activity that falls under the exclusion of “worship services,” and
    16   religious activity that does not, necessarily places the Board in violation of the duty imposed by
    17   Lemon to avoid “excessive government entanglement with religion.” 
    403 U.S. at 613
    .14
    13
    Judge Walker similarly asserted in his dissent in Bronx Household III that the Board’s
    adoption of SOP § 5.11 was motivated by “long-standing hostility to religious groups.” See
    Bronx Household III, 
    492 F.3d at 127
     (“The Board’s avowed purposed in enforcing the
    regulation in this case . . . and its long-standing hostility to religious groups, leads ineluctably to
    the conclusion that the Board, in fact, has undertaken to exclude a particular viewpoint from its
    property.”). Judge Walker has not repeated that assertion in his present opinion, but neither has
    he retracted it.
    14
    Judge Walker has also made this argument. See Bronx Household III, 
    492 F.3d at 131
    (Walker, J., dissenting) (arguing that the Board would “flout[] the Establishment Clause” by
    trying to distinguish worship because it would “no doubt have to interpret religious doctrine or
    27
    1          To begin with, whatever merit this argument may have in other types of cases, we do not
    2   see what application it has here. Bronx Household does not contest that it conducts religious
    3   worship services. To the contrary, it applied for a permit to conduct “Christian worship
    4   services,” and the evidence suggests no reason to question its own characterization of its
    5   activities. Cf. Christian Legal Soc’y, 130 S. Ct. at 2982-84; Faith Ctr. Church Evangelistic
    6   Ministries v. Glover, 
    480 F.3d 891
    , 918 & n.18 (9th Cir. 2007), abrogated on other grounds by
    7   Winter v. Natural Res. Def. Council, Inc., 
    129 S. Ct. 365
     (2008).
    8          This argument, furthermore, overlooks the nature of the duties placed on government
    9   officials by the Establishment Clause (as well as the Free Exercise of Religion Clause). As we
    10   outlined above, while other clauses of the First Amendment prohibit government officials from
    11   discriminating on the basis of religious viewpoint, the Establishment Clause prohibits them from
    12   taking action that would constitute establishment of religion. In various circumstances,
    13   especially when dealing with initiatives for the conduct of undoubtedly religious exercises on
    14   public property, government officials cannot discharge their constitutional obligations without
    15   close examination of the particular conduct to determine if it is properly deemed to be religious
    16   and if so whether allowing it would constitute a prohibited establishment of religion. Bronx
    17   Household’s argument, if valid, would effectively nullify the Establishment Clause.15
    18          Without doubt there are circumstances where a government official’s involvement in
    defer to the interpretations of religious officials in order to keep worship, and worship alone, out
    of its schools” (internal quotation marks omitted)).
    15
    The Free Exercise of Religion Clause also at times compels government officials to
    examine conduct of an undoubtedly religious nature to determine whether it constitutes exercise
    of religion, and is thus entitled to the clause’s protection, or does not, and is thus subject to
    regulation.
    28
    1   matters of religious doctrine constitutes excessive government entanglement. See, e.g.,
    2   Commack Self-Service Kosher Meats, Inc. v. Weiss, 
    294 F.3d 415
    , 427 (2d Cir. 2002). But it
    3   does not follow, as Bronx Household seems to argue, that the mere act of inspection of religious
    4   conduct is an excessive entanglement. The Constitution, far from forbidding government
    5   examination of assertedly religious conduct, at times compels government officials to undertake
    6   such inquiry in order to draw necessary distinctions.16 See Lee v. Weisman, 
    505 U.S. 577
    , 598
    7   (1992) (“Our jurisprudence in this area is of necessity one of line-drawing, of determining at
    8   what point a dissenter’s rights of religious freedom are infringed by the State.”); Cnty. of
    9   Allegheny, 492 U.S. at 630 (O’Connor, J., concurring in part and concurring in the judgment)
    10   (“We cannot avoid the obligation to draw lines, often close and difficult lines, in deciding
    11   Establishment Clause cases . . . .”). It was just such inspection which permitted the Supreme
    12   Court to allow the display of arguably religious symbols in certain public contexts while
    13   prohibiting it in others. Compare Van Orden, 
    545 U.S. at 703
     (Breyer, J., concurring), and Cnty.
    14   of Allegheny, 492 U.S. at 620, with McCreary, 
    545 U.S. at 881
    , and Cnty. of Allegheny, 
    492 U.S. 15
       at 601-02.
    
    16 C. 17
              Judge Walker’s dissenting opinion criticizes our ruling on a number of grounds. We
    18   believe his criticisms are not well founded.
    19          1) Judge Walker’s primary argument is that, because SOP § 5.11’s exclusion of religious
    20   worship services depends on their religious nature, which we do not dispute, it necessarily
    16
    Applying such a rule would, for example, mean that every claim of entitlement under
    the Religious Land Use and Institutionalized Persons Act (RLIUPA), 42 U.S.C. § 2000cc et seq.,
    would be immune from court inquiry into whether the use is in fact a religious use.
    29
    1   discriminates illegally on the basis of viewpoint. See Dissenting Op. 10 (“The Board cannot
    2   lawfully exclude the conduct of an event based solely on the religious viewpoints expressed
    3   during the event.”). He concludes that there is “no doubt that it is ‘religious services’ and
    4   ‘worship’ that the Board is targeting for exclusion” because “[t]he Board is otherwise
    5   unconcerned with comparable ceremonial speech occurring on school premises.” Dissenting Op.
    6   9. According to his analysis, the governing test should be “whether Bronx Household is
    7   engaging in speech that fulfills the purposes of the forum and is consistent with non-religious
    8   speech occurring on school premises.” Dissenting Op. 9. If Bronx Household is engaging in
    9   such speech and is excluded because of the religious nature of its activity, the exclusion is
    10   necessarily illegal viewpoint discrimination.
    11           The problem we find with Judge Walker’s analysis is that it either ignores the crucial role
    12   of the Establishment Clause in motivating the Board’s decision or it simply reads that clause out
    13   of the Constitution. The general effect of the Establishment Clause is to prohibit government
    14   from taking actions which have the effect of establishing religion. Assuming that the
    15   Establishment Clause has some meaning – that is to say, assuming there are some forms of
    16   activity which government may not conduct (or may not permit) by reason of the Establishment
    17   Clause – any such prohibitions necessarily depend on the religious nature of the particular
    18   activity. If the activity is not of religious nature, it does not fall within the purview of the
    19   Establishment Clause.
    20           This feature is evident throughout the Supreme Court’s Establishment Clause
    21   jurisprudence. In Lee v. Weisman, 
    505 U.S. 577
     (1992), for example, the Supreme Court held
    22   that the Establishment Clause prohibited a public high school from including the recitation of a
    23   prayer in its graduation ceremony. The prayer was unquestionably an expressive act, and the
    30
    1   prohibition by the Court under the Establishment Clause unquestionably depended on the
    2   religious nature of prayer. Had the school administration sought to include instead of a prayer a
    3   non-religious affirmation of patriotism, or of love of learning, that would not have been
    4   prohibited by the Establishment Clause.
    5          In County of Allegheny v. ACLU, 
    492 U.S. 573
     (1989), the Court held that the
    6   Establishment Clause prohibited the display of a crèche in the Grand Staircase of the Allegheny
    7   County Courthouse, but upheld against Establishment Clause challenge another display which
    8   included an 18-foot menorah, a 45-foot Christmas tree, and a sign declaring devotion to liberty.
    9   Both displays conveyed an expressive message. What distinguished them was the fact that the
    10   crèche “sent an unmistakable message that [the county] supports and promotes the Christian
    11   praise to God,” 
    id. at 600
    , while the menorah, tree, and sign celebrated the holiday season on a
    12   non-sectarian basis, 
    id. at 617-18
    .
    13          In the companion cases of McCreary County v. ACLU, 
    545 U.S. 844
     (2005), and Van
    14   Orden v. Perry, 
    545 U.S. 677
     (2005), the Court distinguished between two public displays of the
    15   Ten Commandments based on whether they conveyed a message of governmental support or
    16   endorsement of religion. In McCreary, the Court upheld an injunction prohibiting a display of
    17   the Ten Commandments in two courthouses, because the displays had a “predominantly religious
    18   purpose.” McCreary, 545 U.S. at 881. By contrast, Justice Breyer’s controlling opinion in Van
    19   Orden found that the display of the Ten Commandments in the Texas State Capitol did not
    20   violate the Establishment Clause because, when viewed in context, it conveyed a predominantly
    21   secular message of the importance of law. Van Orden, 545 U.S. at 701-02 (Breyer, J.,
    22   concurring). The religious (or non-religious) nature of the two displays again determined
    23   whether their presence on public property was lawful.
    31
    1          In light of such decisions, Judge Walker’s view of the question seems to us not
    2   compatible with the Establishment Clause. Inevitably, whatever expressive conduct is
    3   prohibited by the Establishment Clause is prohibited by reason of its religious nature and would
    4   not be prohibited if what it expressed were not related to religion.
    5          We do not suggest for a moment that any and all expressive activity with religious
    6   content must be excluded from government property or from government-controlled enterprise,
    7   such as the administration of a school system. The Supreme Court has unquestionably ruled
    8   otherwise in Rosenberger, Good News Club, and other cases. Our point is only that the test
    9   cannot be as Judge Walker views it. The mere fact that government does not permit an
    10   expressive activity, which it would permit if the activity were not religious, does not compel the
    11   conclusion that it is engaging in unconstitutional viewpoint discrimination. Whatever forms of
    12   governmental action are prohibited by the Establishment Clause are prohibited in part because of
    13   their religious nature and would not be prohibited if they were not religious.
    14          Where government excludes a category of activity involving religious expression out of
    15   concern for the limitations imposed on government by the Establishment Clause, the lawfulness
    16   of the exclusion (notwithstanding that the religious content motivates the exclusion) will turn on
    17   whether allowing the activity would either violate the Establishment Clause or place the
    18   government entity at a reasonably perceived risk of violating the Establishment Clause. The
    19   Supreme Court has never ruled on whether permitting the regular conduct of religious worship
    20   services in public schools constitutes a violation of the Establishment Clause, and we reach no
    21   conclusion on that question. As discussed above, considering all the circumstances, we think the
    22   risk that permitting the regular conduct of worship services in public schools would violate the
    23   Establishment Clause is sufficiently high to justify the Board’s adoption of a content restriction
    32
    1   that prohibits the performance of such services but does not otherwise limit the expression of
    2   religious viewpoints.
    3           2) Judge Walker maintains that our ruling approves the exclusion of the very sort of
    4   conduct that the Supreme Court ruled in Good News Club could not be excluded. Dissenting Op.
    5   10. We respectfully disagree. The application of the Good News Club, which the school district
    6   denied, was for a Christian group to hold after-school meetings for children between the ages of
    7   six and twelve, where they would have “a fun time of singing songs, hearing a Bible lesson and
    8   memorizing scripture.” Good News Club, 
    533 U.S. at 103
    . The club later gave an expanded
    9   description by letter to the effect that
    10           Ms. Fournier tak[es] attendance. As she calls a child’s name, if the child recites a
    11           Bible verse the child receives a treat. After attendance, the Club sings songs. Next
    12           Club members engage in games that involve, inter alia, learning Bible verses. Ms.
    13           Fournier then relates a Bible story and explains how it applies to Club members’
    14           lives. The Club closes with prayer. Finally, Ms. Fournier distributes treats and the
    15           Bible verses for memorization.
    16   
    Id.
    17           Without doubt there is some overlap between Bronx Household’s conduct of Christian
    18   worship services and the children’s club meetings that were the subject of Good News Club, in
    19   that worship services generally include song, prayer, and scripture. Nonetheless, we doubt that
    20   objective observers employing ordinary understandings of the English language would describe
    21   Ms. Fournier’s club meetings as worship services. Judge Walker seeks to discern the meaning of
    22   the Supreme Court’s majority opinion from the emphatic objections to it expressed in Justice
    23   Souter’s dissenting opinion. He bases his assertion that the activities of the Good News Club
    24   were “religious worship services” on Justice Souter’s dissenting statement that what the majority
    25   allowed into a public school was in effect “an evangelical service of worship.” 
    533 U.S. at 138
    .
    33
    1   It is axiomatic that a dissenting opinion is generally the least reliable place to look to discern the
    2   meaning of a majority opinion. Dissenters commonly exaggerate what they see as inevitable,
    3   appalling consequences of the majority’s ruling, a phenomenon which led Judge Friendly to
    4    observe that dissenting opinions are “rarely a safe guide to the holding of the majority.” United
    5    States v. Gorman, 
    355 F.2d 151
    , 155 (2d Cir. 1965). Regardless of whether the dissenting
    6    justices believed the activities of the Good News Club were equivalent to “an evangelical service
    7    of worship,” there is no indication that the majority shared that view. Indeed, rejecting the
    8   argument advanced by the school district in Good News Club “that the Club’s activities
    9   constitute ‘religious worship,’” the majority expressly noted that the court below had “made no
    10   such determination,” emphasizing that it was not addressing what ruling it would make if the
    11   excluded activity were religious worship. 
    Id.
     at 112 n.4.
    12          We do not mean to imply that we think the Supreme Court somehow indicated in Good
    13   News Club that it would rule as we do on the exclusion of worship services. Our point is only
    14   that the Supreme Court has neither ruled on the question, nor even given any reliable indication
    15   of how it would rule.
    16          3) Judge Walker argues that we err to the extent that we rely on the heavy predominance
    17   of the use of schools for Christian worship services (as opposed to services of other religions)
    18   because of the greater availability of the schools on the Christian day of worship. He argues that
    19   the greater availability of schools for use by Christian organizations is of no constitutional
    20   concern, because “[a]n Establishment Clause violation does not result from either private choice
    21   or happenstance.” Dissenting Op. 24.
    22          The greater availability of schools for use on the Christian day of worship is certainly not
    23   “happenstance.” From the first, schools throughout the United States were closed on Sundays
    34
    1   precisely because Sunday is the Christian day of worship – the day when schoolchildren were
    2   expected to attend church services with their parents. The tradition of closing schools, post
    3   offices, courts, and other government buildings on Sunday is no more happenstance than the fact
    4   that, until recently, many state laws required businesses to close on Sundays. See Alan Raucher,
    5   Sunday Business and the Decline of Sunday Closing Laws: A Historical Overview, 36 J. Church
    6   and State 13 (1994). That choice has origins in the government’s solicitude for Christianity, in
    7   what was once widely viewed as “a Christian nation.” Holy Trinity Church v. United States, 143
    
    8 U.S. 457
    , 471 (1892).
    9                                                    *   *    *
    10          In rejecting a multitude of Judge Walker’s arguments, we do not imply that his
    11   conclusion (as to the constitutional invalidity of the religious worship services branch of SOP
    12   § 5.11) is frivolous or even necessarily wrong. The Supreme Court’s rulings have laid down no
    13   principles that compel a decision one way or the other on these facts. Nor has the Supreme
    14   Court given any reliable indication of how it will rule if and when it confronts these facts. As
    15   Judge Calabresi and I view the facts, the use of New York City public schools for religious
    16   worship services – with a heavy predominance of Christian worship services because school
    17   buildings are most available for non-school use on Sundays – would create a very substantial
    18   appearance of governmental endorsement of religion and give the Board a strong basis to fear
    19   that permitting such use would violate the Establishment Clause. Because the “religious worship
    20   services” clause of SOP § 5.11 is a content restriction that excludes only a type of activity, does
    21   so for a reason that is either constitutionally mandated or at least constitutionally reasonable, and
    22   does not otherwise curtail free expression of religious viewpoints, we conclude that the
    23   restriction does not violate the Constitution.
    35
    1                                        CONCLUSION
    2         For the foregoing reasons, the judgment of the district court is REVERSED, and the
    3   injunction barring enforcement of SOP § 5.11 against Bronx Household is VACATED.
    36
    1   CALABRESI, Circuit Judge, concurring:
    2           I join Judge Leval’s opinion in full because it states a correct alternative ground
    3    upon which to decide this case. But I write separately to emphasize that I continue to
    4   adhere to the position I took in my earlier opinion in this case, that worship is sui generis.
    5    See Bronx Household III, 
    492 F.3d at 100
     (Calabresi, J., concurring). And I especially
    6    wish to reaffirm my view there stated:
    7          A holding that worship is only an agglomeration of rites would be a
    8          judicial finding on the nature of worship that would not only be grievously
    9          wrong, but also deeply insulting to persons of faith.
    10
    11   
    Id. at 103
    . Worship is something entirely different. See id.; see also Bronx Household I,
    12   
    127 F.3d at 221
     (Cabranes, J., concurring in part and dissenting in part) (“Unlike
    13   religious ‘instruction,’ there is no real secular analogue to religious ‘services,’ such that a
    14   ban on religious services might pose a substantial threat of viewpoint discrimination
    15   between religion and secularism.”). State rules excluding all “worship” from a limited
    16   public forum, therefore, are based on content, not viewpoint.
    17          In the context of the rule before us, there is one particular problem: the rule seems
    18   to prohibit religious worship. See SOP § 5.11 (“No permit shall be granted for the
    19   purpose of holding religious worship services . . . .”). And if it be the case that non-
    20   religious worship also exists, then the prohibition of religious worship would be
    21   viewpoint discrimination, and most likely unconstitutional. The question of whether
    22   there is a category of nonreligious worship, or whether worship is inherently religious
    23   and thus “religious worship” is redundant, is interesting and difficult, but we do not need
    24   to decide it in this case. The majority opinion does not need to decide the issue because it
    25   concludes that there is no such thing as a non-religious worship service. Maj. Op. at [15-
    1
    1   16]. I also need not decide the issue because the rule before us prohibits “using a school
    2   as a house of worship,” as well as the holding of “religious worship services.” SOP §
    3   5.11. No one questions that what Appellees seek to do in the instant case is to use the
    4   school as a house of worship. And since both religious worship and nonreligious worship
    5   (if there be any) are subject to the clause barring use of a school as “a house of worship,”
    6   the prohibition here is content- and not viewpoint-based.
    7          We also do not need to be concerned with whether in some other case it might be
    8   hard to say whether what the Appellees wish to do is to use the school as “a house of
    9   worship.” Nor need we worry that, in attempting to answer that question, we (or the
    10   Appellants) might become unconstitutionally “entangle[d] with religion,” Lemon v.
    11   Kurtzman, 
    403 U.S. 602
    , 613 (1971). For Appellees admitted in their permit request, see
    12   J.A. at 3586, and in their briefs before this court, see Appellees’ Br. at 1, that they seek to
    13   use school facilities for “worship.” When a group tells the government that what it
    14   wishes to do is “worship,” the government is entitled to take the group at its word. See
    15   Bronx Household I, 
    127 F.3d at 221-22
     (Cabranes, J., concurring in part and dissenting in
    16   part) (“There may be cases in which the parties dispute whether or not a proposed activity
    17   for which permission to use school premises is denied actually constitutes religious
    18   instruction or worship . . . . However, this issue does not arise in the instant case, as the
    19   parties have stipulated that plaintiff seeks to use a school gymnasium for ‘religious
    20   worship services.’”). That is all the Appellants did when they enforced SOP § 5.11,1 and
    1
    Whatever the Appellants may have done in deciding whether to grant previous permit
    applications not governed by the revised SOP § 5.11 is not before us. Under SOP § 5.11,
    the Appellants denied the Appellees’ permit application four days after it was submitted,
    because it described the activities to be conducted on school premises as “Christian
    worship services.” See J.A. at 3586, 3588. It also does not matter that the permit
    2
    1   it is all a court needs to do here. This case does not, therefore, present an appropriate
    2   occasion for deciding how to resolve a dispute over whether something actually is
    3   “worship.”
    application included the words “as we have done in the past,” J.A. at 3586, or that it
    might have been worded explicitly to include, in addition to worship, other activities that,
    if conducted separately from worship, could not constitutionally be excluded from the
    limited public forum. Once an applicant says that what it wishes to do is “worship,” no
    inquiry into whether the underlying or accompanying activities actually constitute
    worship is required.
    3
    1   JOHN M. WALKER, JR., Circuit Judge, dissenting:
    2        The Board’s Standard Operating Procedure (“SOP”) § 5.11
    3   withholds otherwise broadly available school-use permits from
    4   religious groups seeking to use school facilities during non-
    5   school hours “for the purpose of holding religious worship
    6   services, or otherwise using a school as a house of worship.”
    7   Without addressing the “house of worship” ban, the majority
    8   concludes that the ban on “religious worship services” does not
    9   offend the First Amendment’s Free Speech Clause because it is a
    10   neutral, content-based restriction that is reasonably implemented
    11   to avoid an Establishment Clause violation.   I disagree: SOP
    12   § 5.11 is impermissible viewpoint discrimination against
    13   protected speech and is unsupported by a compelling state
    14   interest.   In this case, Bronx Household’s worship services fit
    15   easily within the purposes of the Board’s broadly available forum
    16   and may not be the object of discrimination based upon the
    17   religious viewpoint expressed by the services’ participants.    The
    18   Board’s purported Establishment Clause concerns are
    19   insubstantial: they are not reasonable, much less a compelling
    20   reason for the Board to shut the door on Bronx Household’s
    21   protected speech.
    22                               * * * * * *
    23        When this panel split in 2007, Judge Calabresi indicated
    24   that he would uphold SOP § 5.11 as a reasonable content-based
    -1-
    1   restriction on the unique subject of “worship,” Judge Leval
    2   expressed no opinion on the merits of the case due to ripeness
    3   concerns, and I indicated that I would strike down the
    4   application of SOP § 5.11 as unconstitutional viewpoint
    5   discrimination.   See generally Bronx Household of Faith v. Bd. of
    6   Educ., 
    492 F.3d 89
    , 100-106 (Calabresi, J.), 110-123 (Leval, J.),
    7   and 123-32 (Walker, J.) (2d Cir. 2007).   At that time, I compared
    8   the purpose of Bronx Household’s proposed use of school property
    9   with the purposes for which the Board opened its limited forum to
    10   the public under SOP § 5.6.2, and, after inquiring searchingly of
    11   the government’s motives, concluded that the Board had engaged in
    12   impermissible viewpoint discrimination by rejecting permit
    13   applicants under SOP § 5.11.   Id. at 123-25.   In response to
    14   Judge Calabresi’s willingness to uphold the Board’s prohibition
    15   on religious worship, I countered that Judge Calabresi had not
    16   engaged in any real analysis of the purpose of Bronx Household’s
    17   proposed expressive activity in light of the purposes of the
    18   forum and in comparison to the purposes of the activities the
    19   Board had allowed, pointing out that he had erred by simply
    20   comparing the speech already permitted on school premises with
    21   “worship,” which he declared to be sui generis and thus readily
    22   excludable from the forum.   See id. at 127-130; cf. Op. of J.
    23   Calabresi at 1.
    24        Now, in this latest iteration of what is effectively the
    -2-
    1   same facial challenge to the Board’s exclusions under SOP § 5.11,
    2   the majority opinion breaks with Judge Calabresi’s earlier
    3   analysis that “worship” is a separate category of speech that is
    4   readily excludable from the Board’s expansive community use
    5   policy, declining even to consider either the second part of SOP
    6   § 5.11 (which prohibits “using a school as a house of worship”)
    7   or whether “worship” may be lawfully excluded from the forum.
    8   Compare Maj. Op. at 11 & 11 n.6 (expressly avoiding a decision on
    9   “worship”), with Op. of J. Calabresi at 1-3 (readily excluding
    10   “worship”).1   Rather, the majority adopts a position not argued
    11   below or advanced by the Board by focusing solely on the Board’s
    12   restriction against “religious worship services,” characterizing
    13   SOP § 5.11 as merely the exclusion of “the conduct of an event or
    14   activity that includes expression of a point of view,” Maj. Op.
    15   at 13.   The majority does not disagree that Bronx Household’s
    16   services fall squarely within the purposes of the limited public
    17   forum; it holds, however, that SOP § 5.11's exclusion of services
    18   is both viewpoint-neutral and justified by Establishment Clause
    19   concerns.   Because I believe that neither conclusion is correct,
    20   I would affirm the district court’s injunction.
    21
    1
    1           While I disagree with Judge Calabresi’s analysis and
    2   conclusions, he at least recognizes that the two parts of SOP
    3   § 5.11 operate in tandem to effectively preclude worship and the
    4   practice of religion from school premises during non-school
    5   hours.
    -3-
    1   I.   SOP § 5.11's Ban on Religious Worship Services Constitutes
    2        Viewpoint Discrimination
    3
    4        As the majority recognizes, the Board has created a limited
    5   public forum by opening its schools for “uses pertaining to the
    6   welfare of the community.”   SOP § 5.6.2.   When the state creates
    7   such a forum, it “is not required to and does not allow persons
    8   to engage in every type of speech.”     Good News Club v. Milford
    9   Cent. Sch., 
    533 U.S. 98
    , 106 (2001).     The government may, for
    10   example, reserve the limited public forum “for the discussion of
    11   certain topics.”   
    Id.
     (quoting Rosenberger v. Rector & Visitors
    12   of the Univ. of Va., 
    515 U.S. 819
    , 829 (1995)).     Any restrictions
    13   on speech in a limited public forum must, however, be both
    14   viewpoint neutral and “reasonable in light of the purpose served
    15   by the forum.”   Cornelius v. NAACP Legal Defense & Educ. Fund,
    16   Inc., 
    473 U.S. 788
    , 806 (1985).    SOP § 5.11 is neither.
    17        Here, the Board opened its schools to the public for
    18   purposes of “maximiz[ing] educational, cultural, artistic and
    19   recreational opportunities for children and parents,” Cahill.
    20   Decl. ¶ 13, “assist[ing] in . . . development generally,” id.,
    21   “expand[ing] enrichment opportunities for children,” Farina Decl.
    22   ¶ 9, and “enhanc[ing] community support for the schools,” id.
    23   The parties agree, and the majority does not contest, that Bronx
    24   Household’s intended use of P.S. 15 for “Christian worship
    25   services”—which include prayer, the reading and singing of
    26   psalms, Bible lessons, personal testimony, communion, preaching,
    -4-
    1   fellowship, and conversation—falls within the purposes of the
    2   forum.   See, e.g., Transcript of Oral Argument, 10/6/2009
    3   (“Tr.”), at 10:7-8, 21:20-21, & 22:20-22 (each statement
    4   conceding that Bronx Household’s intended use advances the
    5   forum’s purposes).   The majority nevertheless finds that the
    6   restriction on religious services is content discrimination that
    7   is reasonable in light of the purposes of the limited public
    8   forum.   I disagree and conclude that the Board’s discrimination
    9   against Bronx Household is based on its religious viewpoint.
    10        The Supreme Court has consistently held that the exclusion
    11   of private speakers from open fora or limited public fora on the
    12   basis of their religious message constitutes viewpoint
    13   discrimination.   In Widmar v. Vincent, for example, the Supreme
    14   Court reaffirmed that “religious worship and discussion” are
    15   “forms of speech and association protected by the First
    16   Amendment.”   
    454 U.S. 263
    , 269 (1981).   On this basis, the Court
    17   rejected a university’s attempt to prevent a student organization
    18   from using an open forum to hold meetings, similar to those at
    19   issue here, that included “prayer, hymns, Bible commentary, and
    20   discussion of religious views and experiences.”    
    Id.
     at 265 n.2.
    21   Significantly, the Court rejected a distinction between protected
    22   religious speech and “a new class of religious speech act[s]
    23   constituting worship.” 
    Id.
     at 269 n.6 (alteration in original)
    24   (citation and internal quotation marks omitted).   The Court
    -5-
    1   explained that this proposed distinction lacked “intelligible
    2   content” and would not “lie within the judicial competence to
    3   administer.”   
    Id.
    4        The Supreme Court first addressed private religious speech
    5   in a limited public forum in Lamb’s Chapel v. Center Moriches
    6   Union Free School District, 
    508 U.S. 384
     (1993).    There, a church
    7   sought to use a school’s limited public forum, after hours, to
    8   show a six-part film series that dealt with “family and child-
    9   rearing issues” from a Christian perspective.    
    Id. at 387-89
    .
    10   The Court found that the school district had engaged in viewpoint
    11   discrimination by “permit[ting] school property to be used for
    12   the presentation of all views about family issues and child
    13   rearing except those dealing with the subject matter from a
    14   religious standpoint.”   
    Id. at 393
    .   Similarly, in Rosenberger v.
    15   Rector & Visitors of the University of Virginia, the Court
    16   rejected the University of Virginia’s refusal to fund a student
    17   newspaper on the basis that the newspaper “primarily promote[d]
    18   or manifest[ed] a particular belie[f] in or about a deity or an
    19   ultimate reality.”   
    515 U.S. 819
    , 823 (1995).   The Court
    20   explained that viewpoint discrimination is a subset of content
    21   discrimination and that while it is “something of an
    22   understatement to speak of religious thought and discussion as
    23   just a viewpoint, as distinct from a comprehensive body of
    24   thought,” religion nevertheless “provides . . . a specific
    -6-
    1   premise, a perspective, a standpoint from which a variety of
    2   subjects may be discussed and considered.”   
    Id. at 830-31
    .     For
    3   that reason, the University’s refusal to fund a student
    4   publication because of its Christian perspective, while
    5   continuing to fund publications with other (secular)
    6   perspectives, was impermissible viewpoint discrimination.      
    Id.
     at
    7   831-32.
    8        More recently, in Good News Club v. Milford Central School,
    9   
    533 U.S. 98
     (2001), the Supreme Court applied its holdings in
    10   Lamb’s Chapel and Rosenberger to activities that could be labeled
    11   “worship.”    Milford had created a limited public forum that, like
    12   SOP § 5.6.2 here, opened its school for purposes “pertaining to
    13   the welfare of the community.”   Good News Club, 
    533 U.S. at 102
    .
    14   The Good News Club, a private Christian organization, sought to
    15   use this forum for weekly meetings, at which participants would
    16   “sing[] songs, hear[] a Bible lesson and memoriz[e] scripture.”
    17   
    533 U.S. at 103
    .   In finding Milford’s exclusion of these
    18   meetings unconstitutional, the Court explained that “something
    19   that is ‘quintessentially religious’ or ‘decidedly religious in
    20   nature’ can[] also be characterized properly as the teaching of
    21   morals and character development from a particular viewpoint.”
    22   
    Id. at 111
    .    While declining to challenge Justice Souter’s
    23   characterization of the Club’s activities as “an evangelical
    24   service of worship,” the Court wrote that “what matters is the
    -7-
    1   substance of the Club’s activities,” which the Court found to be
    2   “materially indistinguishable from the activities in Lamb’s
    3   Chapel and Rosenberger.”   
    Id.
     at 112 n.4.   Because non-religious
    4   groups were permitted to teach morals and character development
    5   from a secular viewpoint, excluding the Good News Club’s efforts
    6   to do the same from a religion viewpoint was impermissible.
    7        The majority argues in this case that the Board has not
    8   discriminated on the basis of viewpoint and tries to distinguish
    9   these prior Supreme Court decisions by focusing narrowly on the
    10   Board’s exclusion of “religious worship services.”    The Board,
    11   however, has not differentiated these services from religious
    12   worship or the practice of religion.   Indeed, how could it do so?
    13   Nor has the Board offered a definition of religious worship
    14   services.   Rather, the majority offers its own self-styled
    15   definition of “religious worship services,” without reference to
    16   the record or briefs, as “the conduct of a particular type of
    17   event:   a collective activity characteristically done according
    18   to an order prescribed by and under the auspices of an organized
    19   religion, typically but not necessarily conducted by an ordained
    20   official of the religion,” the conduct of which “has the effect
    21   of placing centrally, and perhaps even of establishing, the
    22   religion in the school.”   Maj. Op. at 12.   The majority’s
    23   formulation of “religious worship services,” including its shoe-
    24   horning of a supposed Establishment Clause problem, is
    -8-
    1   conveniently tailored to support its arguments, but leaves no
    2   doubt that it is “religious services” and “worship” that the
    3   Board is targeting for exclusion.     The Board is otherwise
    4   unconcerned with comparable ceremonial speech occurring on school
    5   premises.2   The majority’s definition, it bears noting, leads to
    6   anomalous results: while a Catholic or Episcopal service would be
    7   shut out of the forum, a Quaker meeting service, Buddhist
    8   meditation service, or other religions worship convocation could
    9   be allowed because it would not follow a “prescribed order” or
    10   because the leader is not “ordained.”    Ultimately, the majority’s
    11   definition also obscures the central issue, barely discussed in
    12   the majority opinion, of whether Bronx Household is engaging in
    13   speech that fulfills the purposes of the forum and is consistent
    14   with non-religious speech occurring on school premises.
    15        The core of the majority’s argument is that by prohibiting
    16   “religious worship services,” the Board has only prohibited “the
    2
    1           Indeed, the majority’s attempt to differentiate between
    2   the “conduct of services,” which it defines as “the performance
    3   of an event or activity,” Maj. Op. at 11, and the conduct of
    4   “religious worship services” as two distinct categories of
    5   activity relies explicitly on the religious nature of the latter
    6   activity. Whereas a Boy Scouts merit badge service constitutes
    7   “a collective activity characteristically done according to an
    8   order prescribed by and under the auspices of an organized [civic
    9   group]” and is “typically . . . conducted by an . . . official of
    10   the [group],” Maj. Op. at 12, Bronx Household’s weekly “event or
    11   activity” is barred solely because it is performed under the
    12   auspices of an organized religion and conducted by an ordained
    13   official of the religion. Thus, these purportedly distinguishing
    14   criteria squarely depend on the fact that religion is the
    15   underlying motivation for the expressive activity.
    -9-
    1   conduct of an event or activity that includes expression of a
    2   point of view,” rather than “excluding the expression of that
    3   point of view.”   Maj Op. at 12.    The majority’s attempt to
    4   differentiate between the conduct of an event, here labeled
    5   “services,” and the protected viewpoints expressed during the
    6   event is futile because the conduct of “services” is the
    7   protected expressive activity of the sort recognized in Good News
    8   Club and, earlier, in Widmar.      The majority turns its back on the
    9   Supreme Court’s holding in Good News Club that it is viewpoint
    10   discrimination for a school to exclude what is effectively “an
    11   evangelical service of worship” from a limited public forum that
    12   in every material respect is identical to the forum that the
    13   Board established in this case.     Compare Good News Club, 
    533 U.S. 14
       at 112 n.4, with id. at 137-38 (Souter, J., dissenting).        The
    15   Board cannot lawfully exclude the conduct of an event based
    16   solely on the religious viewpoints expressed during the event.
    17        Indeed, in rejecting the claim that religious worship is not
    18   protected speech in Widmar, Justice Powell explained that a
    19   carve-out of worship from protected religious speech does not
    20   have intelligible content and likely would not “lie within the
    21   judicial competence to administer.”     
    454 U.S. at
    269 n.6.    The
    22   carve-out, Justice Powell wrote, also lacks “relevance” because
    23   there is “no reason why the Establishment Clause, or any other
    24   provision of the Constitution, would require different treatment
    -10-
    1   for religious speech designed to win religious converts than for
    2   religious worship by persons already converted.”    
    Id.
     (citation
    3   omitted).
    4        Fixing upon the label “services” for the program of worship
    5   at issue here as a carve-out from protected speech–as opposed to
    6   other characterizations such as “meeting,” “gathering,” “prayer
    7   group,” or “time of worship”–does nothing to resolve the
    8   underlying carve-out problems identified by Justice Powell in
    9   Widmar.     The same concerns–lack of intelligible content, judicial
    10   manageability, and relevance–persist.    While the majority tries
    11   to address these concerns through its own definition of services,
    12   the concerns raised in Widmar adhere in the application of the
    13   majority’s definition.    It is as difficult for a court to
    14   ascertain when it is dealing with “services” as with “worship”
    15   generally and to manage any such distinction.    And ultimately,
    16   any distinction between “services” and protected religious speech
    17   is irrelevant because, regardless of labels, “what matters is the
    18   substance of the [group’s] activities.”    Good News Club, 
    533 U.S. 19
       at 112 n.4.
    20        Moreover, that SOP § 5.11 exclusively targets religious
    21   viewpoints is evident from the fact that, as in Good News Club,
    22   only “religious” services are shut out of the forum.    No similar
    23   restriction is placed on secular gatherings that are materially
    24   indistinguishable from Bronx Household’s use of P.S. 15.      While
    -11-
    1   the Board denies Bronx Household a space to celebrate its ideals,
    2   it permits other outside organizations, such as the Legionnaire
    3   Greys Program and the Boy Scouts, to meet on school premises to
    4   further their secular ideals of “military leadership,” or
    5   “character building, citizenship, and personal and physical
    6   fitness.”   The Board permits these secular uses despite the fact
    7   that these groups also meet according to a prescribed order of
    8   conduct that they consider integral to the accomplishment of
    9   their goals.   See, e.g., 1st Aff. of David Laguer, at ¶¶ 3, 4, &
    10   6 (describing Legionnaire Greys Program meetings as “structured
    11   and ordered,” each consisting of, inter alia, a ceremonial flag
    12   presentation, trumpets playing the national anthem, flag salutes,
    13   unit lessons, leadership training, and character building); Aff.
    14   of Jeffrey G. Fanara, at ¶¶ 5, 6, & 8 (describing Boy Scout troop
    15   meetings as consisting of a “pre-opening, a half-hour gathering
    16   period, . . . a formal opening ceremony . . . with a flag
    17   ceremony and [ ] a recitation of the Pledge of Allegiance and the
    18   Scout Oath or Law,” and a “closing ceremony” that “includes a
    19   motivational message . . . based on Scouting’s values”).    There
    20   can be little doubt that the Board would similarly allow the use
    21   of its facilities by fraternal organizations, such as the Elks or
    22   the Freemasons, with comparable missions and ceremonies.
    23        Just as each of these groups meets to address and discuss
    24   universal concerns while advancing its organizational mission, so
    -12-
    1   too does Bronx Household’s “Sunday morning meeting [act as] the
    2   indispensable integration point for [the group].    It provides the
    3   theological framework to engage in activities that benefit the
    4   welfare of the community.”    First Aff. of Robert Hall (“1st Hall
    5   Aff.”), at ¶ 7.   Further, it is during Bronx Household’s
    6   gatherings that participants are taught “to love their neighbors
    7   as themselves, to defend the weak and disenfranchised, and to
    8   help the poor regardless of their particular beliefs.    It is a
    9   venue where people . . . come to talk about their particular
    10   problems and needs.”3   Id.   Plainly, there can be no claim that
    11   Bronx Household’s gatherings fail to address subjects that are
    12   otherwise permitted in the forum or that they differ from secular
    13   groups’ meetings in any way other than their invocation of
    14   religious doctrine.4
    3
    1           For this reason, the majority errs by distinguishing Good
    2   News Club on the basis of the Supreme Court’s statement that the
    3   Club meetings in that case did not involve “mere religious
    4   worship.” 
    533 U.S. at
    112 n.4; see Maj. Op. at 25, 38. The
    5   majority, however, omits a critical modifier: the Court made
    6   clear that it did not consider the Club’s activities to be “mere
    7   religious worship, divorced from any teaching of moral values.”
    8   
    Id.
     (emphasis added). The same is true here: Bronx Household’s
    9   worship services cannot be divorced from the teaching of moral
    10   values that are part and parcel of those services, which include
    11   Bible lessons and instruction. Indeed, how can the majority’s
    12   conception of religious worship services ever be divorced from
    13   promoting moral values?
    4
    1           While this case was argued under the First Amendment’s
    2   Free Speech and Establishment Clauses, the Board’s action also
    3   raises Free Exercise Clause concerns. “At a minimum, the
    4   protections of the Free Exercise Clause pertain if the law at
    5   issue discriminates against some or all religious beliefs or
    -13-
    1
    2        The majority also relies on a number of hypothetical
    3   activities to argue that the Board could deny a permit
    4   application in order to avoid “either harm to persons or
    5   property, or liability, or a mess, which those activities may
    6   produce.”   Maj. Op. at 13.   Irrespective of the Board’s power to
    7   deny permits for such hypothetical uses out of a concern for
    8   safety, sanitation, and non-interference with other uses of the
    9   schools, see Capitol Square Review & Adv. Bd. v. Pinette, 515
    
    10 U.S. 753
    , 758 (1995), none of these concerns has ever been
    11   present in this case.   Strikingly, while quick to proffer these
    12   hypothetical uses, the majority never comes to grips with the
    13   significant fact that the Board allows most outside organizations
    1   regulates or prohibits conduct because it is undertaken for
    2   religious reasons.” Church of the Lukumi Babalu Aye, Inc. v.
    3   City of Hialeah, 
    508 U.S. 520
    , 532 (1993); see also Employment
    4   Div., Dep’t of Human Res. of Ore. v. Smith, 
    494 U.S. 872
    , 877
    5   (1990). Thus, “if the object of a law is to infringe upon or
    6   restrict practices because of their religious motivation, the law
    7   is not neutral; and it is invalid unless it is justified by a
    8   compelling interest and is narrowly tailored to advance that
    9   interest.” Church of the Lukumi Babalu Aye, 508 U.S. at 533
    10   (internal citation omitted). Given the plain language of SOP
    11   § 5.11, the Board’s persistent exclusion of outside organizations
    12   seeking to use school facilities for religious purposes, and the
    13   Board’s repeated statements that SOP § 5.11 is aimed at the
    14   practice of religion, it is undisputable that SOP § 5.11 is not
    15   neutral. See Smith, 
    494 U.S. at 877-78
    . Because SOP § 5.11
    16   specifically burdens religious practices, it must advance a
    17   compelling government interest to pass constitutional muster.
    18   See id. at 894-95 (O’Connor, J., concurring). Such a compelling
    19   interest is absent in this case for the reasons stated in Part
    20   II.
    -14-
    1   to access its facilities for uses that “pertain[ ] to the welfare
    2   of the community” and “promot[e] [children’s] development
    3   generally,” so long, of course, as those organizations’
    4   activities do not amount to religious worship services or
    5   transform the school into a “house of worship.”    Despite the
    6   majority’s arguments to the contrary, it is readily apparent that
    7   the Board singles out religious worship for disfavored treatment.
    8   The majority’s argument that SOP § 5.11 is nothing more than a
    9   content-based restriction on a specific type of activity, albeit
    10   a religious one, plainly fails.5
    11        Finally, the majority argues that my finding of viewpoint
    12   discrimination overlooks the Board’s Establishment Clause
    13   rationale.   Maj. Op. at 33-37.    As an initial matter, I disagree
    14   that the Board’s Establishment Clause concerns are reasonable,
    15   for the reasons discussed in Part II.    Nevertheless, even if the
    16   Board were to have legitimate Establishment Clause concerns,
    5
    1           The Board’s separate reliance on Faith Center Church
    2   Evangelistic Ministries v. Glover, 
    480 F.3d 891
     (9th Cir. 2007),
    3   to argue that SOP § 5.11 is content, not viewpoint,
    4   discrimination is misplaced. In Faith Center, the Ninth Circuit
    5   concluded that Contra Costa County’s exclusion of a religious
    6   congregation from its library meeting space was content, not
    7   viewpoint, discrimination because the congregation’s intended use
    8   of the space during normal operating hours for “Praise and
    9   Worship” services was incompatible with (a) the purpose for which
    10   the meeting room forum had been created, and (b) the “library’s
    11   primary function as a sanctuary for reading, writing, and quiet
    12   contemplation . . . available to the whole community.” Id. at
    13   902, 909-11. No such incompatibility in either purpose or
    14   facility is present here.
    -15-
    1   those concerns could do nothing to undermine my conclusion that
    2   the Board engaged in viewpoint discrimination; at most, they
    3   could only serve as a potential justification for such
    4   discrimination.
    5         Thus, whether the Board’s actions under SOP § 5.11 are
    6   properly characterized as the exclusion of worship, the exclusion
    7   of “religious worship services,” or the exclusion of “the conduct
    8   of an event or activity that includes expression of a [religious]
    9   point of view,” Maj. Op. at 13, the Board has discriminated
    10   against Bronx Household on the basis of religious viewpoint.    The
    11   group’s proposed use of P.S. 15 fits plainly within the purpose
    12   of the limited public forum created under SOP § 5.6.2; is not
    13   incompatible with any time, place, and manner restrictions
    14   imposed by the Board; and has been denied solely because Bronx
    15   Household wishes to address otherwise permissible subjects from a
    16   religious viewpoint through its conduct of religious “worship
    17   services.”
    18
    19   II.   Bronx Household’s Intended Use of P.S. 15 Raises No
    20         Legitimate Establishment Clause Concerns
    21
    22         After concluding that SOP § 5.11 is content discrimination,
    23   the majority next considers the reasonableness of SOP § 5.11.
    24   However, it does so not in light of the forum’s stated purposes,
    25   but rather in light of the Board’s stated concern that allowing
    26   the conduct of “religious worship services” in schools would give
    -16-
    1   rise to a sufficient appearance of endorsement to constitute a
    2   violation of the Establishment Clause.     See Maj. Op. at 19.
    3   Unlike my colleagues in the majority and the Board, I am not
    4   prepared to shut out constitutionally-protected speech from a
    5   neutral forum on the sole basis that it is “quintessentially
    6   religious.”   Good News Club, 
    533 U.S. at 111
    .    I would hold that
    7   the actions of Bronx Household, a private party, cannot transform
    8   the government’s neutral action into an Establishment Clause
    9   violation.    The Board’s fear of being perceived as establishing a
    10   religion is therefore not reasonable, if the exclusion is viewed
    11   (erroneously) as content discrimination, much less sufficiently
    12   compelling to justify the viewpoint discrimination that I believe
    13   is occurring.
    14        Just like the defendants in Widmar, the Board and the
    15   majority “misconceive[] the nature of the case.”    
    454 U.S. at 273
    .
    16   The Board has not created a forum open only to religious speech.
    17   Rather, “it has opened its facilities for use by [the community],
    18   and the question is whether it can now exclude groups because of
    19   the content of their speech.”   
    Id.
        In fact, the Supreme Court has
    20   “[m]ore than once . . . rejected the position that the
    21   Establishment Clause even justifies, much less requires, a refusal
    22   to extend free speech rights to religious speakers who participate
    23   in broad-reaching government programs neutral in design.”
    24   Rosenberger, 515 U.S. at 839 (citing Lamb’s Chapel, 508 U.S. at
    -17-
    1   393-94; Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v. Mergens,
    2   
    496 U.S. 226
    , 248, 252 (1990)).    Because the Establishment Clause
    3   looks only to the government’s role, if any, in establishing
    4   religion and not the private speaker’s choice in exercising his
    5   free speech rights, I reach the opposite conclusion from the
    6   majority as to whether a reasonable person would perceive the
    7   Board’s grant of the neutral-forum permit sought here to be an
    8   endorsement of religion.
    9        The Board and the majority invoke Lemon v. Kurtzman, 
    403 U.S. 10
       602 (1971), to demonstrate that SOP § 5.11 is reasonable, but they
    11   misapply the Lemon test, thereby reaching several conclusions that
    12   directly contradict controlling Supreme Court precedent.    In
    13   particular, the majority offers five bases for concluding that SOP
    14   § 5.11 is reasonably based on the Board’s supposed concern that
    15   granting Bronx Household a permit for “Christian worship services”
    16   might have the “principal or primary effect” of endorsing
    17   religion, see id. at 612, thereby violating the Establishment
    18   Clause.6   The battle that the majority and the Board wish to
    6
    1           The five bases the majority cites are as follows: (1)
    2   after-hours use of school premises for “religious worship
    3   services” transforms the school into a church because “[t]he
    4   church has made the school the place for the performance of its
    5   rites,” Maj. Op. at 20; (2) the Board might reasonably fear that
    6   allowing access for “religious worship services” results in the
    7   Board’s substantial subsidization of religion, Maj. Op. at 21;
    8   (3) granting access for “religious worship services” might
    9   permanently convert a school on Sundays into a state-subsidized
    10   church “by reason of public perception of endorsement” that “is
    11   made particularly acute by the fact that P.S. 15 and other
    -18-
    1   fight, however, has already been lost.   The Supreme Court has
    2   rejected Establishment Clause concerns, including those raised by
    3   the majority, in this context because they are premised on the
    4   mistaken belief that permitting religious groups to use school
    5   facilities for religious purposes on a non-school day in a neutral
    6   forum creates a realistic danger that the public will perceive the
    7   Board as endorsing religion.
    8        The relevant question to be asked is not whether any person
    9   might mistakenly perceive the Board as conveying a message of
    10   endorsement or disapproval; rather, the endorsement test asks
    11   whether “an objective observer, acquainted with the text,
    12   legislative history, and implementation of the [challenged law or
    13   policy], would perceive it as a state endorsement of [organized
    14   religion] in public schools.”   Santa Fe Indep. Sch. Dist. v. Doe,
    15   
    530 U.S. 290
    , 308 (2000) (emphasis added) (quoting Wallace v.
    16   Jaffree, 
    472 U.S. 38
    , 73, 76 (1985) (O’Connor, J., concurring)).
    17   Thus, the majority confuses its analysis when it emphasizes the
    18   private speaker’s conduct, rather than the government’s role, in
    19   establishing religion.   The fact that a community member might
    1   schools used by churches are attended by young and impressionable
    2   students,” Maj. Op. at 22-23; (4) increased availability of
    3   Sunday permits would favor Christian groups over other
    4   denominations, see Maj. Op. at 23-24; and (5) deliberate
    5   exclusion of certain members of the general public, such as
    6   persons excommunicated from the church who advocate the Islamic
    7   religion, by a religious organization aggravates existing
    8   Establishment Clause concerns, see Maj. Op. at 24.
    -19-
    1   witness an outside organization using a school during non-school
    2   hours to further its religious cause does not in itself raise a
    3   legitimate concern that the government has acted in contravention
    4   of the Establishment Clause.   See Capitol Square, 
    515 U.S. at
    767
    5   (Scalia, J., for the plurality) (“By its terms th[e]
    6   [Establishment] Clause applies only to the words and acts of
    7   government. It was never meant, and has never been read by this
    8   Court, to serve as an impediment to purely private religious
    9   speech connected to the State only through its occurrence in a
    10   public forum.” (emphasis in original)).
    11        For these reasons, the majority’s focus on the “religious
    12   nature” of the speech, without regard to the nature of the
    13   speaker, is misplaced.   The majority cites McCreary County v.
    14   ACLU, 
    545 U.S. 844
     (2005); County of Allegheny v. ACLU, 
    492 U.S. 15
       573 (1992); and Lee v. Weisman, 
    505 U.S. 577
     (1992), as
    16   foundational to its Establish Clause analysis, and of course they
    17   would be highly relevant to this case were we dealing with
    18   religious speech by the government.    In McCreary and County of
    19   Allegheny, the government’s placement of the Ten Commandments and
    20   a nativity creche, respectively, in county courthouses violated
    21   the Establishment Clause, as did the government in Lee v. Weisman
    22   when a school official invited a rabbi to give an invocation and
    23   benediction at a middle-school commencement exercise.   In the case
    24   before us, however, the most the government has done is to open up
    -20-
    1   a neutral public forum limited by its laudable educational and
    2   community-building purposes.   Unlike in these three cited cases,
    3   it has neither promoted nor endorsed a religious message.
    4        Also, “a significant factor in upholding government programs
    5   in the face of Establishment Clause attack is their neutrality
    6   towards religion.”   Good News Club, 
    533 U.S. at 114
     (quoting
    7   Rosenberger, 
    515 U.S. at 839
    ).   Indeed, the Free Speech Clause’s
    8   requirement of viewpoint neutrality by the government in opening a
    9   forum tends to undermine, if not preclude, a finding of school
    10   sponsorship in the Establishment Clause context.   See Good News
    11   Club, 
    533 U.S. at 114
     (“Because allowing the Club to speak on
    12   school grounds would ensure neutrality, not threaten it, [the
    13   school district] faces an uphill battle in arguing that the
    14   Establishment Clause compels it to exclude the Good News Club.”).7
    15   To an objective, fully informed observer, the fact that the forum
    16   is open to a wide spectrum of participants bespeaks the state’s
    7
    1           Indeed, it bears noting that it was, at least in part,
    2   the Second Circuit’s previous approval of the Board’s rejection
    3   of Bronx Household’s permit application pursuant to an earlier
    4   formulation of the religious-use prohibition (“No outside
    5   organization or group may be allowed to conduct religious
    6   services or religious instruction on school premises after
    7   school.”) that prompted the Court to grant certiorari in Good
    8   News Club. See 
    533 U.S. at
    105-106 (citing Bronx Household I as
    9   one of a number of circuit court cases contributing to a circuit
    10   conflict “on the question whether speech can be excluded from a
    11   limited public forum on the basis of the religious nature of the
    12   speech”). It would not have been unreasonable for the Court to
    13   have expected that its Good News Club decision would end this
    14   case as well.
    -21-
    1   neutrality, not its favoring of religion or any other group.
    2        In any event, even if a private actor’s conduct could somehow
    3   transform a neutral forum into a state endorsement of religion,
    4   Bronx Household’s services would not do so here.   Just as in
    5   Lamb’s Chapel and Good News Club, Bronx Household’s use of P.S. 15
    6   takes place during non-school hours (actually on a day when there
    7   is no school), lacks school sponsorship, occurs in a forum
    8   otherwise available for a wide variety of uses, and is open to the
    9   public.   See 1st Hall Dep. at 30 (“Worship services are always
    10   open to the public.”); 1st Hall Aff., ¶ 5 (“Our Sunday morning
    11   meetings are open to all members of the public.    The meetings are
    12   not closed to a limited group of people, such as church members
    13   and their guests.”).8   And while the majority in this case cites
    14   the “particularly acute” danger that young and impressionable
    15   students will perceive the weekend use of their schools by
    16   religious groups as the Board’s endorsement of religion or certain
    17   religious denominations, see Maj. Op. at [23], the Supreme Court
    8
    1           While Bronx Household, in accordance with its religious
    2   tenets, limits communion to church members who have been
    3   baptized, all members of the public are free to attend its Sunday
    4   worship services and there is no evidence that Bronx Household
    5   has ever refused admission to anyone. The majority’s statement
    6   that Bronx Household “excludes. . . persons who have been
    7   excommunicated or who advocate the Islamic religion from full
    8   participation in its services,” Maj. Op. at 23, rests on Pastor
    9   Robert Hall’s answers to hypothetical questions posed to him by
    10   the Board during his deposition that specifically addressed
    11   church membership, not public attendance at Sunday worship
    12   services. See 2nd Hall Dep. at 35-42.
    -22-
    1   rejected this same argument in Good News Club, where it was
    2   presented with facts less favorable to Good News Club than those
    3   the majority cites to here.   See, e.g., Good News Club, 
    533 U.S. 4
       at 117-18.   Specifically, the Good News Club’s activities took
    5   place directly after school and catered to children ages 6-12,
    6   id.; here, by contrast, Bronx Household’s services occur on
    7   Sundays, when the only children present at the school are those
    8   attending the services, presumably with their parents.
    9        The majority argues at some length that permitting weekly
    10   worship services at P.S. 15 transforms the school into a church.
    11   See, e.g., Maj. Op. at 20 (“When worship services are performed in
    12   a place, . . . [t]he place has, at least for a time, become the
    13   church.”).   The majority then equates permitting worship services
    14   to “subsidizing churches” and “allowing schools to be converted
    15   into churches.”   Maj. Op. at 21.    The “church” reference appears
    16   no less than twelve times in the majority opinion.    Such an
    17   argument–that somehow a neutral forum is physically (or perhaps
    18   metaphysically) transformed into a non-neutral forum by the
    19   private activity undertaken there–has the feel of rhetoric.     The
    20   same claim could have been made in Widmar and Good News Club, in
    21   which decidedly church-related activities were permitted to occur
    22   on a regular basis.   Bronx Household’s services do not convert
    23   P.S. 15 into a church any more than the Boy Scout’s meetings
    24   convert it into a Boy Scout lodge.
    -23-
    1        The majority also errs in relying on the fact that some
    2   outside religious organizations may more easily obtain school-use
    3   permits because they worship on Sundays, not Fridays and
    4   Saturdays.   See Maj. Op. at 23-24.     An Establishment Clause
    5   violation does not result from either private choice or
    6   happenstance.   See Zelman v. Simmons-Harris, 
    536 U.S. 639
    , 652
    7   (2002); Good News Club, 
    533 U.S. at
    119 n.9; Harris v. McRae, 448
    
    8 U.S. 297
    , 319 (1980) (“[I]t does not follow that a statute
    9   violates the Establishment Clause because it happens to coincide
    10   or harmonize with the tenets of some or all religions.” (internal
    11   quotation marks omitted)).   Moreover, that an increasing number of
    12   Christian groups have sought Sunday-use permits under SOP § 5.6.2
    13   does not equate to permit unavailability for other religious
    14   groups.   Indeed, while the majority states that “Jews and Muslims
    15   generally cannot use school facilities for their services because
    16   the facilities are often unavailable on the days that their
    17   religions principally prescribe for services,” Maj. Op. at 23-24,
    18   the record is clear that Jewish and Muslim groups have been
    19   granted weekend access to school premises across the city under
    20   the community use policy.    See, e.g., J.A. at 88 (Friday permit
    21   for Downtown Synagogue’s “religious services”); id. at 185
    22   (Saturday permit for Downtown Synagogue’s “religious services”);
    23   id. at 179 (Saturday permit for Hope of Israel’s “fellowship
    24   meetings”); id. at 183 (Saturday permit for Khal Bais Yitzchok’s
    -24-
    1   “religious fellowship meetings”); id. at 229 (Saturday permit for
    2   Muslimmah of NA’s “religious services”).9   Finally, the majority’s
    3   reliance on County of Allegheny v. ACLU, 
    492 U.S. 573
     (1989), and
    4   Lynch v. Donnelly, 
    465 U.S. 668
     (1984), is misplaced because those
    5   cases “neither hold[ ] nor even remotely assume[ ] that the
    6   government’s neutral treatment of private religious expression can
    7   be unconstitutional.”   Capitol Square, 
    515 U.S. at 765
     (Scalia,
    8   J., for the plurality).
    9        Supreme Court caselaw also refutes the Board’s argument that
    10   granting Bronx Household Sunday access to P.S. 15 constitutes
    11   direct aid to religion because it allows Bronx Household to bypass
    12   the expensive New York City real estate market that might
    13   otherwise preclude it from establishing a congregation.   Cf. Maj.
    14   Op. at 21.   The Board’s argument runs afoul of Rosenberger:
    9
    1           The majority relies on the Board’s denial of one group’s
    2   request to hold Jewish services on Saturdays in a school
    3   generally used for Christian services on Sundays in support of
    4   its argument that permits are unavailable to Jewish and Muslim
    5   groups. See Maj. Op. at 24. While the Board implies that there
    6   is a lack of availability of Friday and Saturday permits for use
    7   of its 1,197 buildings, its own evidence demonstrates that
    8   approximately 750 buildings are available for after-school use on
    9   Fridays, that 400 buildings are available for Saturday use, and
    10   that 900 buildings are available for Sunday use. See Appellant’s
    11   Br. at 13-14. Thus, that some religious denominations use school
    12   premises more often than others may simply indicate their lack of
    13   other adequate meeting space in the community and not any
    14   increased ability on their part to secure a permit. See 2nd Hall
    15   Dep. at 105-06. That some religious groups utilize the extended
    16   use policy more than others simply does not give rise to a
    17   legitimate perception that the Board grants permits to particular
    18   denominations to the exclusion of others.
    -25-
    1        It does not violate the Establishment Clause for a
    2        [school] to grant access to its facilities on a
    3        religion-neutral basis to a wide spectrum of student
    4        groups, including groups that use meeting rooms for
    5        sectarian activities, accompanied by some devotional
    6        exercises. . . . The government usually acts by
    7        spending money. Even the provision of a meeting room,
    8        as in Mergens and Widmar, involved governmental
    9        expenditure, if only in the form of electricity and
    10        heating or cooling costs. The [analytical] error . . .
    11        lies in focusing on the money that is undoubtedly
    12        expended by the government, rather than on the nature of
    13        the benefit received by the recipient. If the
    14        expenditure of governmental funds is prohibited whenever
    15        those funds pay for a service that is, pursuant to a
    16        religion-neutral program, used by a group for sectarian
    17        purposes, then Widmar, Mergens, and Lamb’s Chapel would
    18        have to be overruled.
    19   515 U.S. at 842-43 (emphasis added).   Even Justice Souter, who
    20   dissented in Rosenberger, agreed that the government does not
    21   provide impermissible direct aid to religion each time a non-
    22   government speaker utilizes a limited public forum for private
    23   religious speech.   See id. at 888 (Souter, J., dissenting).    Thus,
    24   established Supreme Court precedent effectively forecloses the
    25   argument that permitting Bronx Household access to P.S. 15 for the
    26   purpose of engaging in private religious speech results in the
    27   Board’s unlawful provision of direct aid to a religious group.
    28        In sum, while the majority argues that allowing Bronx
    29   Household weekly use of P.S. 15 for “religious worship services”
    30   would force the Board to render direct aid to religion, convey a
    31   message that the Board endorses religion over non-religion, and
    32   exhibit a preference for certain religious denominations over
    33   others, these arguments are without merit.   Rather, the neutrality
    -26-
    1   of the forum is preserved when religious speech, like non-
    2   religious speech, is allowed.   Accordingly, if Lemon v. Kurtzman
    3   is to apply,10 I would hold that the Board has failed to
    4   demonstrate that granting Bronx Household Sunday access to P.S. 15
    5   for worship services would have the principal or primary effect of
    6   advancing religion or otherwise conveying a message of
    7   endorsement.11   While I would require the Board to demonstrate some
    8   sort of government endorsement (an uphill task, to say the least,
    9   given the Free Speech Clause’s requirement of forum neutrality)
    10   before allowing it to restrict the viewpoint advanced by private
    11   religious speech that otherwise falls within the purposes of the
    10
    1           The Supreme Court recently noted that many of its
    2   Establishment Clause cases “have not applied the Lemon test,”
    3   while others “have applied it only after concluding that the
    4   challenged practice was invalid under a different Establishment
    5   Clause test.” Van Orden v. Perry, 
    545 U.S. 677
    , 686 (2005).
    11
    1           The majority cites Capitol Square for the proposition
    2   that a private religious group may so dominate a forum so as to
    3   convey a message of governmental approval. See Maj. Op. at 21.
    4   While Bronx Household’s four-hour use of P.S. 15 on Sundays
    5   hardly dominates the limited public forum the Board has created
    6   under SOP § 5.6.2, any concern over a given group’s prolonged or
    7   dominant use of the forum can be addressed through reasonable
    8   time, place, and manner restrictions. For example, in order to
    9   ensure greater weekend availability of a particular school’s
    10   facilities to more outside organizations, the Board could limit
    11   the number of times per year that any one outside organization
    12   may use school facilities. Likewise, the Board may revoke any
    13   organization’s permit if it fails to adhere to neutral rules
    14   imposed by the Board, i.e., by failing to include the Board’s
    15   sponsorship disclaimer in written materials or by actively
    16   creating an impression of school sponsorship. The majority’s
    17   reliance on Pleasant Grove City, see Maj. Op. at 20, is similarly
    18   misplaced.
    -27-
    1   forum, the lack of a basis in law for the Board’s establishment
    2   concerns undermines any holding that SOP § 5.11 is reasonable,
    3   even under the majority’s flawed analysis that SOP § 5.11 is mere
    4   content discrimination, much less a compelling justification for
    5   the Board’s viewpoint discrimination.
    6                              * * * * * *
    7        I have no doubt that this case stirs deep feelings and
    8   carries implications far broader than the Board’s exclusion of
    9   Bronx Household’s “Christian worship services” under SOP § 5.11.
    10   This case also presents important doctrinal considerations worthy
    11   of the Supreme Court’s attention.   In the meantime, however, as a
    12   result of the majority’s decision that “religious worship
    13   services” can be barred from the neutral limited public forum the
    14   Board created under SOP § 5.6.2, numerous religious groups that
    15   provide recognized benefits to the people and their communities,
    16   consistent with the forum’s purposes, will be denied access to
    17   otherwise available school space simply because their private
    18   speech is intertwined with their standard devotional practices and
    19   deeply-held religious beliefs.   Others will be chilled.   Because
    20   SOP § 5.11's ban on religious worship services violates the Free
    21   Speech Clause, I respectfully dissent.
    -28-
    

Document Info

Docket Number: 07-5291

Filed Date: 6/2/2011

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (26)

Van Orden v. Perry , 125 S. Ct. 2854 ( 2005 )

County of Allegheny v. American Civil Liberties Union , 109 S. Ct. 3086 ( 1989 )

Board of Ed. of Westside Community Schools (Dist. 66) v. ... , 110 S. Ct. 2356 ( 1990 )

Lee v. Weisman , 112 S. Ct. 2649 ( 1992 )

Zelman v. Simmons-Harris , 122 S. Ct. 2460 ( 2002 )

joseph-m-destefano-as-taxpayer-of-the-county-of-orange-state-of-new , 247 F.3d 397 ( 2001 )

the-bronx-household-of-faith-jack-roberts-robert-hall-v-community-school , 127 F.3d 207 ( 1997 )

Agostini v. Felton , 117 S. Ct. 1997 ( 1997 )

Employment Div., Dept. of Human Resources of Ore. v. Smith , 110 S. Ct. 1595 ( 1990 )

Rosenberger v. Rector & Visitors of University of Virginia , 115 S. Ct. 2510 ( 1995 )

Winter v. Natural Resources Defense Council, Inc. , 129 S. Ct. 365 ( 2008 )

commack-self-service-kosher-meats-inc-dba-commack-kosher-brian , 294 F.3d 415 ( 2002 )

Capitol Square Review & Advisory Board v. Pinette , 115 S. Ct. 2440 ( 1995 )

The Bronx Household of Faith, Robert Hall and Jack Roberts ... , 331 F.3d 342 ( 2003 )

Wallace v. Jaffree , 105 S. Ct. 2479 ( 1985 )

Santa Fe Independent School District v. Doe , 120 S. Ct. 2266 ( 2000 )

Widmar v. Vincent , 102 S. Ct. 269 ( 1981 )

United States v. Robert William Gorman and Edward Terrence ... , 355 F.2d 151 ( 1965 )

Bronx Household of Faith v. BD. OF EDUC. NEW YORK , 400 F. Supp. 2d 581 ( 2005 )

Dan Marchi v. Board of Cooperative Educational Services of ... , 173 F.3d 469 ( 1999 )

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