Those who’ve been following my latest argument at Dispatches will already have seen reference to it, but it’s so mind-boggling that I want to comment here as well. The 2nd U.S. Circuit Court of Appeals, in Bronx Household of Faith v. Board of Education of the City of New York has upheld a school district’s policy of not renting space to churches for “religious worship services.” The Court’s reasoning is that religious groups are not barred from renting the space, and they can still use the space to in religious expression, so there’s no viewpoint discrimination–it’s just the particular content that is a religious worship service that’s not allowed. And the Court distinguishes between expression/viewpoint and content as follows (found on p.10 of the decision):
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.
This is not the dumbest thing ever written by a U.S. federal judge,* but it’s a top-10 nominee. True, those things, even in conjunction do not necessarily constitute a religious worship service, but a worship service necessarily includes at least some combination of those things, and in fact every worship service I’ve ever been to includes the complete set of those things. Further, I can’t think of any event I’ve been to that included the complete set of those things that wasn’t an actual religious worship service, even though I think I can imagine such an event.
But since the federal court has clearly said you can do all these things as a group, without it constituting a worships service, I suggest that the Bronx Household of Faith submit a request to hold Sunday morning pancake breakfasts, at which they will have prayer, religious instruction (i.e., a sermon), expressions of devotion (e.g., the Apostles Creed, the Nicene Creed, etc.), and the singing of hymns…with maple syrup! The 2nd Circuit’s opinion in support of the school district would bar the school district from denying the application.
* The dumbest thing ever written by a federal judge was Hugo Black’s argument in Korematsu v. United States that,
Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire [and] the situation demanded that all citizens of Japanese ancestry be segregated…