Weird Second Circuit Decision

6/15/2011—On June 2, in an split opinion, Judge Pierre Leval, joined by Judge Guido Calabresi, upheld the New York City Board of Education policy that exempts “religious worship services” from the general policy allowing community groups to use schools after hours for community purposes. All other uses of school space are permissible except for “religious worship services”. Judge John Walker dissented.

Two aspects of the opinion are weird. First, the court upheld the exclusion in large part because the school board’s concern of possibly violating the Establishment Clause if religious services were allowed constituted a legitimate reason for banning the services.

But the court could have decided the Establishment Clause issue. If the court had held that permitting the services in the schools would violate the Establishment Clause, then obviously the policy excluding them is justified. On the other hand, if the court had decided that allowing the services would not violate the Establishment Clause, then the school board is unconstitutionally discriminating against a religious viewpoint for no reason.

Instead of resolving the matter, Judge Leval wrote, “we need not decide whether use of the school for worship services would in fact violate the Establishment Clause…It is sufficient if the Board has a strong basis for concern… .” This confuses the role of the Board and the role of the court. It is true that the schoolboard must be careful because it cannot be sure what does and does not violate the Establishment Clause. But the Second Circuit is in a position to decide the matter. The court is permitting an injustice to go forward if there would be no Establishment Clause violation and is allowing religious people to blame the Board for a policy that the Constitution requires, if there would be a violation.

The other oddity in the opinion is that the court then does not decide whether there is such a thing as a non-religious worship service. And, indeed, Judges Leval and Calabresi seem to split on whether if such non-religious worship services exist, they are barred by the policy. This is not a fanciful problem. I don’t know exactly what the Humanist Chaplain does at Harvard, but this is how Gregg Epstein is described on the website:

*Greg M. Epstein serves as the Humanist Chaplain at Harvard University, and is author of the New York Times Bestselling book, Good Without God: What a Billion Nonreligious People Do Believe. He sits on the executive committee of the 36-member corps Harvard Chaplains. In 2005 he received ordination as a Humanist Rabbi from the International Institute for Secular Humanistic Judaism, where he studied in Jerusalem and Michigan for five years. He holds a BA (Religion and Chinese) and an MA (Judaic Studies) from the University of Michigan, Ann Arbor, and a Masters of Theological Studies from the Harvard Divinity School.*

Since there are “services”, it is impossible to tell whether this humanist congregation is barred by the New York Board policy or not. For that matter, there are a number of religious groups that lack a sense of the supernatural and there could well be religious naturalists who say they “worship” nature.