The 2d Circuit Court of Appeals upheld last year New York City’s efforts to deny access to public schools for those who have been holding worship services there, even though every other kind of activity is permitted. But there is good news: the District Court has granted a temporary injunction to stop the evictions. The evictions are hitting many poorer and minority congregations, since these are the ones who cannot afford more expensive locations and are scrambling to find alternative space:
“These churches are running into the harsh reality that in New York City, it is difficult to find reasonably priced facilities,” said Jordan Lorence, an attorney who argued the churches’ side in the court case. “They are very expensive in Midtown, or they’re nonexistent in some of the poorer areas of town, where the churches do their work.”
Minorities make up the congregations of many of the churches being evicted, said city Councilman Fernando Cabrera, who is pastor of a Bronx church that’s not affected.
“There’s Koreans, Chinese, Puerto Ricans, African-Americans,” said Cabrera, who was arrested last month while protesting the city’s stance. “They’re staples in our community and they provide a volunteer base that the city can never pay for.”
The 2nd Circuit opinion relies on some pretty strange theology:
The prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit. The conduct of services is the performance of an event or activity. While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion to God, and the singing of hymns, whether done by a person or a group, do not constitute the conduct of worship services. Those activities are not excluded.
So groups can meet to sing hymns, but they cannot meet to have a worship service and sing hymns. Groups can meet for religious meditation services, but not for religious worship services. Groups can meet for anti-religious teaching, but not for religious teaching if it is part of a worship service. (It is an unfortunate coincidence that most Christian churches have their primary religious instruction in the context of a worship service.)
Some more strange “judicial theology” from the opinion that Tim Keller calls superstition:
When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a 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.
A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church.
Which theological school of thought holds this position? The church is always the people, not the building. Here is Tim Keller’s reply:
I disagree with the opinion written by Judge Pierre Leval that: “A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church.” This is an erroneous theological judgment; I know of no Christian church or denomination that believes that merely holding a service in a building somehow “consecrates” it, setting it apart from all common or profane use. To base a legal opinion on such a superstitious view is surely invalid.
Some excellent briefs arguing against the Circuit Court decision can be found here.