Most public schools make their facilities available after school hours to a wide variety of private nonprofit organizations, including religious organizations. Some states, however, including New York, absolutely forbid public schools to allow religious worship—even after regular school hours and during periods when the school buildings would otherwise be vacant. Does the federal Constitution permit this prohibition?
Some experts think that the Supreme Court resolved the issue in the Good News Club case (see Am. editorial, 7/2/01), but the court actually avoided the question of worship by saying that the club’s programs did not constitute “mere religious worship, divorced from any teaching of moral values.”
The Supreme Court did hold that public schools had to give the same after-class access to the Good News Club that the schools give to the Boy Scouts and Girl Scouts. At the same time, the Supreme Court sent a case on its docket back to the U.S. Court of Appeals for the Fifth Circuit for reconsideration in light of the Good News Club decision. The case was Campbell v. St. Tammany Parish [Public] School Board [of Louisiana], decided in 2000.
In St. Tammany (named after the same uncanonized Indian as Tammany Hall), the Fifth Circuit upheld the exclusion of partisan political activities, for-profit fund-raising events and religious worship from the otherwise very broad permissible uses of the school district’s buildings during after-school hours.
When the Fifth Circuit received the Supreme Court’s mandate for reconsideration, the circuit judges wisely ducked and sent the case back to the trial court, where it still awaits reconsideration.
Meanwhile, the Bronx Household of Worship in New York City renewed its application for Sunday morning services in the auditorium at M.S. 206B (Anne Cross Mersereau Middle School). These services are not, in Justice Clarence Thomas’s words in the Good News Club decision, “mere worship.” The services contain many moral and character-development programs, but the services also include worship of Jesus Christ.
Early last June, the U.S. Court of Appeals for the Second Circuit upheld a preliminary injunction in favor of the application by the Bronx Household of Worship. The case is not over. The Second Circuit, by a vote of two to one, held that the Good News Club decision most probably obliterated the distinction between religious speech and religious worship. But the majority opinion left open the possibility that the distinction between speech and worship might survive after a full trial on the merits—at least with respect to after-school use of public school facilities.
Regardless of what the federal courts do, the states with blanket restrictions should repeal them. These prohibitions are relics of a political climate in which public schools were the sacred cows in the separation of church and state. That climate no longer exists.
Ever since the U.S. Supreme Court’s decision in the Mergens case (1986), religion has been back in the public schools—not in the form of prayers led by public school teachers or administrators—but on the bulletin boards and in the student newspapers, student religious clubs and after-class activities by private nonprofit organizations.
It makes no sense for states to say that organizations that want to use public school facilities during after-class hours may preach but not pray. Most worship is in the form of speech. By refusing to continue an unworkable distinction between speech and worship, the states will not abandon the distinction between government and religion. The states will simply let their people respond to the God who speaks to them.
At the same time, congregations in need of facilities for religious worship should think twice before they run to after-hours use of public school auditoriums. These auditoriums are not the ideal venue for religious worship. But use of the auditoriums makes sense in an emergency. A few years ago, a terrible fire ruined an historic synagogue on Lexington Avenue in New York City right before the Jewish High Holy Days. The New York Legislature responded by immediately enacting a law permitting the synagogue to celebrate the holy days in a large and convenient New York armory.
Back in the early days of the Kennedy administration, one of our editors celebrated Sunday Mass in a Virginia public school auditorium for many months. The local bishop had created a new parish, and Virginia allowed use of the auditorium while the new Catholic church was being built. Among the regular worshipers at the Mass was Robert F. Kennedy, then the attorney general of the United States.