In Bronx Houshold of Faith v. Board of Education of the City of New York, the Second Circuit held that the City could constitutionally exclude religious groups from using public school facilities on equal terms with all other groups, because those groups were engaged in “worship” rather than simply religious “expression,” and because the City had an Establishment Clause interest in avoiding the appearance that it was endorsing religion. In so doing, the court purported to distinguish Good News Club v. Milford, also out of the Second Circuit. The Supreme Court denied certiorari in the case, and so Bronx Household of Faith has lost.
In this story, some of the details of what has followed are reported. Religious organizations are hoping that the City will reconsider, but the City is “moving forward.” It seems that one of the ways in which forward progress is being made is by telling religious groups that they cannot worship in public housing developments, which may be the next move. The City has denied that it is interested in ousting religious groups from public housing, but there does not seem to be any reason why the asserted interest in non-endorsement which won the day in the Second Circuit should not apply equally to public housing. And hot on the heels of the cert. denial, five churches got word that their leases in public housing were no longer valid. An interesting situation which bears watching.
For those who are interested, I have a note on this decision and its implications at http://works.bepress.com/neil_foster/50/ . In my view (for what it is worth as an Australian lawyer still coming to grips with US First Amendment litigation!) the decision is a very poor one and the Supreme Court will eventually have to rule on this question.