learned that it had mistakenly permitted a religious program in violation of its policy, took effective steps to prevent a similar mistake in the future, or that any such corrective measures had caused the denial of the plaintiff's application. Counsel for the school district could only assure the Court that he would, if asked, advise in the future against use of the auditorium for another Christmas program but he could not guarantee that the district would heed his advise. See Travis, 927 F.2d at 693.
Here, Rasmussen requested use of the facilities by explaining "my church, Trinity United Methodist Parish, is hosting a Christian Illusionist. We would like to be able to present his show to all area churches, Christians and anyone else who may be interested in his show." On its application form, Amazing Grace stated that it intended to use the facilities for a "gospel concert," the proceeds of which would go to "music ministry for Amazing Grace Church to outreach community -- Donation to Downing Park, etc." The School Board has not offered any reasonable explanation as to why Rasmussen's request for a performance by a Christian magician would necessarily trigger any more scrutiny than Amazing Grace's application for a gospel concert. The singing of Christian hymns may be entirely secular, but there was nothing in Amazing Grace's application that indicated such a limited content. Both requests were made by churches for programs that facially raised an issue of religion.
The School Board also argues, that to prevent mistakes akin to the Amazing Grace incident, it has taken a number of steps in a good faith attempt to remain in compliance with a somewhat difficult body of law, including reviewing and revising its practices after Travis, and revising Policy 7511 to permit speech from a religious viewpoint, but prohibit completely the genre of "religious services and religious instruction," following the Supreme Court's decision in Lamb's Chapel, 508 U.S. 384, 124 L. Ed. 2d 352, 113 S. Ct. 2141. In addition, since the Amazing Grace concert, the School Board now asks all applicants whose applications appear to present religious issues to confirm that they recognize that the District has a policy prohibiting religious services and instruction, and that the facilities may be used for the singing of gospel hymns, but may not include religious services or instruction. Finally, the School Board contends that in the future it will deny Amazing Grace use of its facilities unless Amazing Grace can demonstrate that its intended use will not include a religious service or religious instruction.
As important as these steps are, they are not dispositive. There is no guarantee that an application for a religious program would raise an issue of religion on its face. A secular organization might request permission to host a performance by Travis, but indicate on its application that use of the facilities is sought only for a magic show. Moreover, it is not clear that merely asking an applicant whose application raises an issue of religion whether it recognizes that the District has a policy that prohibits religious services and instruction will prevent mistakes, like Amazing Grace's gospel concert, in the future. Amazing Grace itself signed a statement agreeing to comply with the Board's policy and regulations, yet still engaged in religious services and instruction.
The gospel concert occurred and it created at least a limited public forum for entertainment events including prayer, religious instruction, music and religious testimony. This means that the School Board cannot selectively deny access for activities of the same genre, regardless of whether it has created a limited public forum or an open forum. Because I rely for this conclusion on the School Board's past practice, I do not reach the questions of whether § 414 and the Policies constitutionally create a limited public forum or of whether the Church was excluded because of its religious viewpoint.
2. Establishment of religion
Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (1971), established another three-prong test, this one for evaluating Establishment Clause claims. Under the test, a governmental policy will not offend the Establishment Clause if: (1) it has a secular purpose; (2) its principal or primary effect is one that neither advances nor inhibits religion; and (3) it does not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S. Ct. at 2111.
The Church argues that under Widmar, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269, and Walz v. Tax Commission, 397 U.S. 664, 674-75, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970), enforcement of § 414 and the Policies' prohibition against use of the school facilities and the funds collected for religious purposes would excessively entangle the state with religion because the School Board would have to monitor the activities of pervasively sectarian organizations to assure that use of its facilities and the funds collected remained secular.
Widmar involved the exclusion of a registered student group desiring to engage in religious worship and religious discussion from the facilities of a state university, which were generally available for the activities of registered student groups. To be sure, Widmar noted that "the University would risk greater 'entanglement' by attempting to enforce its exclusion of 'religious worship' and 'religious speech'" than by opening its forum to religious as well as nonreligious speakers, Widmar, 454 U.S. at 272, n. 11, 102 S. Ct. at 275-76, n. 11, 70 L. Ed. 2d 440 (1981), but our Circuit has held that, with regard to § 414 and policies quite similar to those at issue here:
Widmar.. . . does not control the result. . . . As the Supreme Court pointed out in a later case, in Widmar it had 'noted that a university campus, at least as to its students, possesses many of the characteristics of a traditional public forum,' thereby subjecting attempts at regulating use to the most exacting constitutional standards as to the forum's intended beneficiaries. While the citizenry residing within a school district may be the intended users of the forum at issue here, public elementary schools are not, as to the general community, traditional public fora.
Deeper life, 852 F.2d at 679 (quoting Cornelius, 473 U.S. at 803, 105 S. Ct. at 3449-50). Eschewing strict reliance on Widmar, the Court chose to apply what it termed a "limited public forum analysis," Deeper Life, 852 F.2d at 679-80, and concluded that the exclusion of religious uses under § 414 and the subject policies need only be reasonable and view-point neutral to pass constitutional muster.
Moreover, even if Widmar did apply, the Church has not demonstrated that enforcement of § 414 and the Policies would mean state involvement sufficiently excessive as to violate the Establishment Clause. "The test is inescapably one of degree. . . The questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement." Walz, 397 U.S. at 675, 90 S. Ct. at 1414.
The entanglement proscribed in such cases as Lemon, Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975) and Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 290 (1985), has in common state assistance provided in a pervasively sectarian environment, in such a form that continuing supervision to ensure the absence of a religious message was essential. Because, in those cases, state assistance was rendered in the form of teachers, who, as opposed to books, could not "be inspected once so as to determine the extent and intent of [their] personal beliefs and subjective acceptance of the limitations imposed by the First Amendment," Lemon, 403 U.S. at 619, 91 S. Ct. at 2114, an adequate level of supervision would have required comprehensive and permanent on-site monitoring. See, Lemon, 403 U.S. at 619, 91 S. Ct. at 2114; Meek, 421 U.S. at 370, 95 S. Ct. at 1765; Aguilar, 473 U.S. at 412-13, 105 S. Ct. at 3237-38.
Here, in contrast, although enforcement of § 414 and the policies might occasion some degree of state monitoring, it would be far less comprehensive and permanent than the detailed and daily monitoring required to guard against the infiltration of religious thought in sectarian classrooms that the Supreme Court found to be excessive and enduring entanglement in Lemon, Meek, and Aguilar. The School Board would be required to do no more than determine whether an applicant's proposed use included religious services or religious instruction and then ascertain the nature of the entity receiving the funds raised. Making those decisions does not differ substantially from making the type of decision approved in Mueller v. Allen, Jr., 463 U.S. 388, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983), which concluded that determining whether the purpose of instructional books and materials was to inculcate religious tenets, doctrines or worship did not excessively entangle the state in religion.
3. Free Exercise of Religion and the Religious Freedom Restoration Act
"To demonstrate an infringement of his free exercise rights, an individual must show 'the coercive effect of the (state) enactment as it operates against him in the practice of his religion.'" Brandon v. Board of Education, 635 F.2d 971, 976 (2d Cir. 1980) (quoting School District of Abington Township v. Schempp, 374 U.S. 203, 223, 83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844 (1963)), cert. denied, 454 U.S. 1123, 102 S. Ct. 970, 71 L. Ed. 2d 109 (1981). In addition, to demonstrate a violation of the Religious Freedom Restoration Act of 1993, a plaintiff must show that a governmental entity has "substantially burdened a person's exercise of religion." Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. § 2000bb-1(a).
Analysis under the Free Exercise Clause does not involve a court in determining the sincerity of one's religious beliefs, see United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), but it does require that the court inquire into the relative importance of a particular religious ritual and the degree to which exercise of that practice is infringed by government action. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).
Here, although religious services are undoubtedly essential to the Church's religious beliefs, the effect of § 414 and the Policies -- denying the Church use of the school facilities for religious services -- is not the type of coercive restraint imposed by state action proscribed by the Free Exercise Clause. The Church is not forced to choose between neglecting its religious obligations and rendering itself liable for criminal sanctions, as in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), or ineligible for state benefits, as in Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526. See Brandon, 635 F.2d at 977. It has not demonstrated that the practice of its religion requires it to present magic shows that include religious services at public schools. Accordingly, the Church's Free Exercise claim is denied.
4. Void for Vagueness
A statute is void for vagueness if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964) . When a statute touches the area of free expression, the requirements of preciseness are most strictly applied as the government is permitted by the Constitution to regulate only with narrow specificity. See Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S. Ct. 675, 684, 17 L. Ed. 2d 629 (1967) (citation omitted). To avoid chilling the exercise of vital First Amendment rights, restriction of expression must be expressed in terms which clearly inform citizens of prohibited conduct and in terms susceptible of objective measurement. See Keyishian, 385 U.S. at 604, 87 S. Ct. at 684 (citation omitted).
The Church argues that § 414 and the Policies are unconstitutionally vague because they vest school officials with subjective, ad hoc authority to determine what constitutes a "religious purpose" and "religious services and religious instruction." For example, the Church argues, it is unclear whether the Policies would permit a church to use the school facilities for a religious service in which the choir would sing excerpts from Handel's Messiah.
Section 414 and the Policies are not void for vagueness. The terms "religious purpose" and "religious services and religious instruction" have a common meaning such that people of ordinary intelligence -- perhaps after some thought -- can understand what conduct is prohibited. A performance of Handel's Messiah, for example, need not be a religious service. It depends upon the context and purpose for which it is performed. "Much of the world's greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs" when performed "in a non-religious context" and with "a non-religious purpose." See Lamb's Chapel, 959 F.2d at 388. Although some people may attend a religious service because they enjoy the music, in general, attendance connotes identification with a faith, and thus, is enjoyed only by people of a particular religious belief. The Church's void for vagueness claim is denied.
5. Equal Protection
Finally, under the Equal Protection Clause, a governmental entity may not "legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. . . . All persons similarly circumstanced shall be treated alike." Reed v. Reed, 404 U.S. 71, 75-76, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) (citations omitted). The distinction drawn by the School Board in denying the Church access to the school facilities -- between a gospel concert including a sermon, altar call and prayer and a magic show including a religious service of prayer, Christian testimony and instruction -- cannot withstand scrutiny under either a strict scrutiny or reasonable basis test for the reasons stated above in relation to the Church's Free Speech claim. Accordingly, § 414 and the Policies as applied here unconstitutionally deny the Church equal protection of the law.
In conclusion, Plaintiffs' motion for summary judgment on their Free Speech and Equal Protection claims are granted and Defendants' motion for summary judgment dismissing all other claims is granted.
Dated: White Plains, N.Y.
November 9, 1995
Barrington D. Parker, Jr.