Is there a difference between religious expression and religious worship?

According to federal courts that have faced this question, there is a distinction between the two. Decades of litigation have resulted in split decisions in the courts. Another ruling* from the Second Circuit Court of Appeals (New York) in June, 2011, puts the issue front and center once again.

In 1994, the Bronx Household of Faith asked a local middle school for permission to hold Sunday services at the school. Bronx was denied on the basis that public schools were not authorized to allow their facilities for religious services or religious instruction. Remember what the First Amendment states: “Congress shall make no law respecting an establishment of religion, . . .”

Then, in 2001, the U. S. Supreme Court decided a similar case.** In Good News Club, they ruled that a school district’s policy that permitted public use of its facilities but barred use for religious purposes was unconstitutional. The Court described the policy as “viewpoint discrimination.” In other words, excluding a public use by an organization that maintained a religious viewpoint was unlawful as discriminatory. The Supreme Court recognized that subjects were permitted in the school that taught morals and character from a religion standpoint. Similarly, the school could not discriminate against use for religious purposes during non-school hours.

Bronx Household of Faith

The Bronx case took a different approach to the issue. The Second Circuit reasoned that conducting a religious service is different from free expression of a religious point of view. The judge wrote for the majority that “The conduct of a ‘religious worship service’ has the effect of placing centrally, perhaps even of establishing, the religion in the school. There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.” He further explained that “When worship services are performed in a place, the nature of the site changes.” The site is no longer simply in a room in school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there. . . .The place has, at least for a time, become the church.”

The Bronx Household of Faith plans to appeal the decision. The Supreme Court may have another opportunity to consider the issue. If they accept the case, which they can decide not to, they will be able to modify, vacate or affirm the Good News Club decision.

*The Bronx Household of Faith v. Board of Education of the City of New York (2011)

**Good News Club v. Milford Central School  533 U.S. 98 (2001)