by Bob Smietana

A federal court ruled on Thursday that New York City can ban churches from renting public schools for worship services.

The 2-1 ruling from the Second Circuit court is the latest twist in a long-running legal battle between the Bronx Household of Faith and the Board of Education of the City of New York.

The church has held services at Public School 15/2 since 2002, according to its website. But the legal conflict with the Board of Education dates to the mid-1990s.

The Board of Education’s lawyers say allowing churches to hold worship in public schools violates the First Amendment’s Establishment clause.

Russell D. Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, called the court’s treatment of the Bronx House of Faith and other churches “capricious and bizarre.”

“Church plants,” he said, “operating within the rules and doing nothing to disrupt others, have been tossed about by the courts on the question simply of whether they can rent facilities in which to worship.”

In 2010, the Second Circuit court ruled that the city could ban churches from holding services in public schools. In 2011, the Supreme Court refused to hear the church’s appeal.

Then in 2012, a lower court granted the church a permanent injunction, allowing them to worship at the school. U.S. District Court Judge Loretta Preska said the ban on churches renting schools caused “irreparable harm” to the church’s First Amendment right.

In today’s ruling, the Second Circuit Court disagreed. The judges ruled the city only bans worship in public schools, not religious activity.

“They may use the facilities to teach religion, read from and discuss the Bible, advocate their religious views, sing hymns, say prayers, and do all things that must be permitted under the rule of Good News Club,” they wrote. “Such religions, it is true, may not use the school facilities for the conduct of religious worship services.”

The court ruled that the Board took its actions in order to prevent the appearance it was endorsing religion.

In a dissent, Circuit Judge John M. Walker, Jr., said that the Board of Education’s rules are designed to restrict religious activity in schools.

“A regulation that bans worship services, but not worship in any of its manifestations is thus not sufficiently tailored to accomplish the interest that the School Board has advanced, namely, avoiding the risk of being perceived as establishing religion,” he wrote.

An attorney from Arizona-based Alliance Defending Freedom, a Christian legal group that represents the church, said the Bronx Household of Faith is considering appealing the ruling.

In 2012, LifeWay Research found 65 percent of Americans believed churches should be allowed to worship in school buildings, while 16 percent responded that schools “should rent to other community groups but not churches.”

Additionally, 12 percent believe “public schools should not rent to any churches or community groups.” There is also 1 percent who believe “public schools should rent to churches but not other community groups,” and 7 percent are “not sure.”

Among New York state residents the numbers were split much closer. Slightly less than half (49 percent) believed schools should rent to churches and other community groups, with 27 percent believing churches alone should be excluded and 19 percent who believe the schools should not rent to either.

At the time of the initial ban, Ed Stetzer gave three reasons why he believed the decision was wrong-headed. He wrote: “We need to decide if religion is a danger to our culture that should be banned from the public square, or something to be valued and protected. I desperately pray it is the latter.”

[Update: Kevin Ezell, president of the North American Mission Board , also commented on the ruling.

“This decision will have a negative impact on all faith groups that often make use of public spaces,” Ezell said. “These groups pay to rent the space. We are not asking anything for free. I believe the Second Circuit Court of Appeals and New York City government officials have made a poor decision that ultimately conflicts with the U.S. Constitution and will be overturned. In the meantime, we will do everything we can to be sure our churches are able to find alternative locations so New York City residents will still be able to worship freely near their homes.”]

Bob Smietana (@bobsmietana) is the senior writer and content editor of Facts & Trends.

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