Every week, hundreds of religious bodies use space in public school facilities for their worship services. Indeed, approximately two percent of all religious congregations, according to the National Congregations Study, do this.
Churches using school buildings seem to be a recent phenomenon, potentially due to the fracturing of American denominations, the growing preference for casual, low-church facilities, and the desire to reduce operating costs and allocate more resources to ministry. In some locales, churches may be renting school space because zoning laws prohibit tax-exempt churches from buying and using land that would otherwise yield tax revenue.
No matter the reason, this generally happy accommodation between religious organizations and public schools is controversial, and even heretical, to some who seek to sanitize public life in general—and public schools in particular—from religion.
The New York Times and the ACLU Don’t Understand the First Amendment
An outcry against religious groups using public schools has resurfaced in the pages of the New York Times. On May 24, the Times editorial board declared: “Get Churches Out of Public Schools.” They argued that allowing churches to use public school facilities when school is not in session “could turn public school facilities into houses of worship, essentially funded by the government.” Citing the New York Civil Liberties Union, the New York affiliate of the American Civil Liberties Union, the Times asserted that prohibiting religious organizations from using public schools would protect religious freedom.
But this line of reasoning gets the First Amendment’s protections for religion backward. It restricts individuals and groups, not governments. It seeks to privatize religion and protect society from religion, not promote religious exercise and leave room for it to compete in public life. An application of this principle would damage religious life, especially smaller religious organizations.
The Times’s editorial arises out of a legal controversy in New York City. New York state law authorizes local school districts to allow community, civic, and public recreation organizations to use public school facilities during off-hours if the uses are “nonexclusive” and “open to the general public.” In New York City, the Department of Education developed a standard operating procedure for local groups to use public school facilities, though organizations were prohibited from using the schools for “religious services or religious instruction” in an early version and “religious worship services” in a more recent one.
Since 1994, a small religious congregation—the Bronx Household of Faith—has been trying to use local public-school facilities for its religious services, as it outgrew the ability to meet in congregants’ homes. The church achieved some success after the Supreme Court’s decision in Good News Club v. Milford Central School (2001), which permitted religious groups to use school facilities, but the Second Circuit Court upheld New York City’s denial of access to public schools in 2011. In December 2011, the Supreme Court declined to hear an appeal of this decision based on free speech and free exercise of religion claims, upholding the Second Circuit’s decision.
Following the decision, some New York City Council members promised to change the law. On May 22, 2013, the City Council, in a 38-11 vote, moved to take the appropriate constitutional remedy, asking the New York state legislature and governor to amend the New York Education Law “to afford houses of worship maximum access to school property.” It was this move that prompted sharp criticism from the New York Times and the ACLU.
The Times quotes approvingly the constitutional perspective of Donna Lieberman, executive director of the New York chapter of the ACLU. Lieberman declares that “religious freedom is better protected when the government is prohibited from favoring any particular religion or favoring believers over nonbelievers.” The Times goes on to chide the New York City Council for being “unfamiliar with this constitutional principle.”
Yet it is the Times and Lieberman who seem to be unfamiliar with constitutional principles, particularly that the First Amendment demands equal access to public facilities for religious organizations and non-religious organizations. Policies that restrict religious organizations from gaining access to public facilities such as public schools, but offer access to other groups, are engaging in viewpoint discrimination and infringing on the First Amendment rights of religious groups and religious people.
Contrary to the view of the Times and the ACLU, the rights of religious exercise, free speech, and equal treatment are infringed upon when school boards and local communities discriminate against religious groups. Religion becomes disfavored and discriminated against when schools allow access to sports clubs, community organizations, philosophical societies, and environmental groups, but not to groups that would like to use schools for religious services.
The Times and the ACLU discount this perspective because they are focused on a mid-twentieth-century theory of church-state relations, not the pluralist religious vision of our founding. Their perspective is an application of the oversimplified rhetoric of Everson v. Board of Education’s (1947) “high and impregnable” wall of separation between church and state and Lemon v. Kurtzman’s (1971) overly restrictive and subjective test of what constitutes religious establishments. This focus on no-establishment has blinded them to the peril of discrimination.
The primary purpose of the US Constitution’s religion clauses is to prevent the government from infringing upon religious exercise. The provision that “Congress shall make no law respecting an establishment of religion” is a means to promote that end. When no-establishment, instead of free-exercise, becomes the emphasis of church-state jurisprudence, the First Amendment’s principles are reversed. The emphasis on protecting people from the government is morphed into protecting the government from religious people and religious organizations.
This is exactly what the Times is arguing for by declaring that the Establishment Clause requires the government to discriminate against religion. Thankfully, the Supreme Court’s recent church-state decisions do not misconstrue the Constitution this way.
The Supreme Court and Equal Access
For the past thirty years, the Supreme Court has championed the constitutionality of equal access for religious organizations. It began in Widmar v. Vincent (1981), where the Court ruled in an 8-1 decision that a public university that allows its facilities to be used by student groups may not restrict religious groups from using those facilities for religious worship and religious discussion. In this case, the University of Missouri-Kansas City’s justification for denying religious groups access to the university’s facilities was to maintain the separation of church and state. The university argued, as do the New York Times and the ACLU, that the First Amendment’s Establishment Clause makes it unconstitutional for religious groups to use public facilities.
The Court disagreed, stating that equal access policies are not incompatible with the Establishment Clause. In fact, the Court said that by deciding which organizations and activities are religious in nature, the school itself risks blurring the “establishment” line.
Widmar was just the beginning of a long line of equal access jurisprudence by the Court. Following Widmar, Congress passed the Equal Access Act in 1984, requiring public, federally funded secondary schools to provide religious organizations with equal access to their facilities.
In Westside Community Schools v. Mergens (1990), the Court validated the constitutionality of the Equal Access Act in an 8-1 decision.
Continuing with this perspective, the Court unanimously upheld the right of a religious group, under the Free Speech Clause of the First Amendment, to show James Dobson's films on child-rearing at a local public school (Lamb’s Chapel v. Center Moriches Union Free School District (1992)). In Rosenberger v. University of Virginia (1995), the Court ruled that equal access principles demanded that religious groups have the equal ability to use university student fees to publish their materials. Most similarly to the Bronx Household of Faith case, the Court ruled in Good News Club (2001) that the school district violated the free speech rights of a religious organization when it denied the organization access to a public school facility because its use was the equivalent of religious worship. Justice Thomas wrote, “No Establishment Clause concern justifies that violation.”
The Court has been clear in its support for equal access. Its decisions have been typically lopsided and uncontroversial, which is unusual in “culture war” decisions. This speaks to the breadth of appeal that these arguments have. In fact, the equal access perspective has become the controlling jurisprudential approach for the scope of Establishment Clause law. This can be seen in the constitutionality of public aid to religious schools.
Over the past two decades, the Court has applied similar non-discrimination principles to the area of government support for religious education. In Zelman v. Simmons-Harris (2002), the Court approved vouchers to attend private religious and non-religious schools, even if religious schools were the primary beneficiaries, because religious and non-religious schools had equal access to the funds. Similarly, the Court has ruled that state funds to purchase secular educational supplies can be accessed by religious schools (Mitchell v. Helms ), as can state-funded sign-language interpreters (Zobrest v. Catalina Foothills School District ) and state-funded tutors (Agostini v. Felton ).
In these Establishment Clause cases, then, equality is the key principle. The government cannot treat religious organizations or religious ideas differently than private organizations or non-religious ideas.
The extent of the Court’s commitment to equality and neutrality will be tested this fall, when it hears Town of Greece v. Galloway, a case that raises the constitutionality of opening legislative sessions with prayer. Thirty years ago in Marsh v. Chambers, the Court held that legislative prayers and government-paid chaplains do not violate the Establishment Clause, though it relied primarily on national history and tradition. Though Town of Greece has received more attention for whether or not it will strike down the “endorsement test,” adapted from the Lemon test and favored by Justice O’Connor, the case implicates the concept of equality underlying contemporary church-state law. The New York town in this case used volunteer clergy of any faith tradition to give the invocation, refraining from discriminating. If prior precedent holds, this element of equality will be enough to avoid running afoul of the Establishment Clause.
Of late, the Court’s Establishment Clause jurisprudence, though often criticized for being wanton and inconsistent, has been balanced by the underlying principle of equality—protecting against discriminating against religion. The Court has rightly taken a more holistic approach to the First Amendment, seeing the Establishment, Free Exercise, and Free Speech Clauses as promoting the protection of religious exercise more than the protection against religious infiltration into public life.
Of course, the Times and the ACLU argue that they are protecting religious exercise by maintaining an impenetrable wall of separation between church and state, but in fact they are endorsing religious discrimination and neutering religious exercise. No establishment becomes the end, not the means. In their world, religion would remain a private affair. This may be where they would like religion, but it is not what the Constitution requires, and the Court has largely abandoned its faulty prior jurisprudence. For two organizations supposedly devoted to progress and equality, their Establishment Clause positions are markedly antiquated and discriminatory.
Andrew Lewis is an assistant professor of political science at the University of Cincinnati.