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November 16, 2005.


The opinion of the court was delivered by: LORETTA PRESKA, District Judge



The liberty afforded by the First Amendment of the Bill of Rights to pursue religious expression free of government molestation was presciently observed by the Framers of the Constitution to be among the most divisive and factious to imperil societal harmony. See The Federalist No. 10, at 41-42 (James Madison) (Terence Ball ed., 2003) ("A zeal for different opinions concerning religion . . . ha[s] . . . divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good."); U.S. Const. amends. I, XIV. In fact, this inherent tension recently was evidenced by the Supreme Court's seemingly divergent rulings regarding public display of the Ten Commandments. McCreary County, Ky. v. ACLU of Ky., 125 S. Ct. 2722, 2733 n. 10 (2005) (prohibiting display of the Ten Commandments in county courthouses and noting that "Establishment Clause doctrine lacks the comfort of categorical absolutes"); Van Orden v. Perry, 125 S. Ct. 2854 (2005) (permitting display of the Ten Commandments in public space outside the Texas State Capitol).

  Thus, it is perhaps not surprising that the Supreme Court's jurisprudence has evolved throughout our history from sometimes unabashed support of religion, see, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457, 458, 471 (1892) (holding that a statute making it unlawful for any person "in any manner whatsoever, to prepay the transportation" or otherwise import an alien "to perform labor or service of any kind in the United States" could not have been intended to apply to a church's contracting for a pastor from England: "If we pass beyond these [historical] matters to a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth . . . that this is a Christian nation."), toward a requirement of neutrality toward religion, see, e.g., Everson v. Bd. of Educ. of the Twp. of Ewing, 330 U.S. 1, 18 (1947) (permitting government funding for children's transportation to school, both public schools and religious schools: "Th[e First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.") and Agostini v. Felton, 521 U.S. 203, 231 (1997) (reversing its earlier decision and finding no Establishment Clause violation in a federally funded program providing remedial instruction to children on a neutral basis: "[W]here the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis . . . the aid is less likely to have the effect of advancing religion."). It is that requirement of neutrality that prescribes the outcome in this case.

  The Bronx Household of Faith, Robert Hall, and Jack Roberts ("Plaintiffs") brought this action against the Board of Education of the City of New York (the "Board") and Community School District No. 10 (the "School District," collectively, "Defendants"), alleging that Defendants' refusal to rent space in a New York City public middle school to the Bronx Household of Faith (the "Church"), a Christian church, for Sunday morning meetings that include worship violated the First Amendment, the Equal Protection Clause, and Sections 3, 8, and 11 of Article I of the New York Constitution. Plaintiffs and Defendants now cross-move for summary judgment. For the reasons set forth below, Plaintiffs' motion for summary judgment is granted, and Defendants' motion is denied. BACKGROUND

  The factual and procedural history of this action is set forth in detail in my June 26, 2002 Opinion granting Plaintiffs' motion for a preliminary injunction. 226 F. Supp. 2d 401 (S.D.N.Y. 2002) ("Bronx II"). Accordingly, only those facts relevant to the instant motions are set forth below.

  In September 1994, the School District denied the request of the Church to rent space in Public School M.S. 206B, Anne Cross Merseau Middle School ("M.S. 206B" or the "School") for Sunday morning meetings that include religious worship. The denial was based on the Board's Standard Operating Procedure § 5.9 (1993) ("Former SOP § 5.9") and New York Education Law Section 414 (McKinney 2000), both of which prohibited rental of school property for the purpose of religious worship. In 1995, Plaintiffs brought an action in this Court challenging the School District's denial on constitutional grounds. See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501 (LAP), 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). I found that the School District had created a limited public forum and that its regulations were reasonable and related to a legitimate government interest. Thus, I denied Plaintiffs' motion for summary judgment and granted Defendants' cross-motion for summary judgment. In 1997, the Court of Appeals affirmed the judgment, 127 F.3d 207 (2d Cir. 1997) ("Bronx I"), and in 1998, the Supreme Court denied certiorari. 523 U.S. 1074 (1998). Employing reasoning similar to its reasoning in Bronx I, the Court of Appeals affirmed the District Court's grant of summary judgment in favor of the defendant school district in The Good News Club v. Milford Cent. Sch., 202 F.3d 502 (2d Cir. 2000). The Good News Club is "a community-based Christian youth organization" that sought to use Milford Central School facilities for after-school meetings of children involving "`singing songs, hearing Bible lesson[s], and memorizing scripture.'" Id. at 504, 507. The majority found that the Good News Club is "focused on teaching children how to cultivate their relationship with God through Jesus Christ[,]" a pursuit that is "quintessentially religious" "under even the most restrictive and archaic definitions of religion." Id. at 510. Thus, the Court concluded, the Milford School District properly excluded the Good News Club on the basis of "content, not viewpoint." Id. at 511.

  In a dissenting opinion, Judge Jacobs faulted the majority for distinguishing between groups that teach secular morality and those that teach morality that stems from religious beliefs. "The fallacy of this distinction is that it treats morality as a subject that is secular by nature, which of course it may be or not, depending on one's point of view." Id. at 515 (Jacobs, J., dissenting). Furthermore, Judge Jacobs observed, "[e]ven if one could not say whether the Club's message conveyed religious content or religious viewpoints on otherwise-permissible content, we should err on the side of free speech. The concerns supporting free speech greatly outweigh those supporting regulation of the limited public forum." Id.

  The Supreme Court granted certiorari, 531 U.S. 923 (2000), and reversed the decision of the Court of Appeals, 533 U.S. 98 (2001). The majority accepted the parties' agreement that the school had created a limited public forum but disagreed with the Court of Appeals' characterization of the Good News Club's activities, particularly its characterization of religious activities as different from other activities in the school relating to the teaching of moral values. Id. at 106, 110-11. The Court noted:
Despite our holdings in Lamb's Chapel and Rosenberger, the Court of Appeals, like Milford, believed that its characterization of the Club's activities as religious in nature warranted treating the Club's activities as different in kind from the other activities permitted by the school.
Id. at 110-11 (citation omitted).
  The Court went on to reject definitively the treating of "quintessentially religious" activities as different in kind from the teaching of character and morals from a particular viewpoint:
We disagree that something that is "quintessentially religious" or "decidedly religious in nature" cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. See 202 F.3d at 512 (Jacobs, J., dissenting) ("When the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters"). What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.
Id. at 111.

  The Court further disagreed with the Court of Appeals' implicit finding that "reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not." Id. Ultimately, the Court held that "Milford's exclusion of the Club from use of the school, pursuant to its community use policy, constitute[d] impermissible viewpoint discrimination." Id. at 112.

  Shortly after the Supreme Court issued its opinion in Good News Club, Plaintiffs in this case contacted the School District to renew their request to meet at M.S. 206B from 10:00 a.m. to 2:00 p.m. each Sunday to engage in singing, the teaching of adults and children from the viewpoint of the Bible, and social interaction among members of the Church to promote their welfare and that of the community. Pagliuca Decl., Ex. A.*fn1 On August 16, 2001, an attorney for the Board informed Plaintiffs' counsel that Defendants "were denying [the application] because the meetings would violate the defendants' policy prohibiting religious services or instruction in the school buildings." Compl. ¶ 15.*fn2 The policy to which the Board referred was SOP § 5.11 (2001) ("Enjoined SOP § 5.11") (precedently Former SOP § 5.9), which provided:
No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purpose of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.
Enjoined SOP § 5.11.

  Shortly after receiving Defendants' refusal letter, Plaintiffs filed the Complaint on September 24, 2001. On July 3, 2002, in light of the Supreme Court's decision in Good News Club, I granted Plaintiffs' motion for a preliminary injunction. I found the deprivation of Plaintiffs' First Amendment rights to constitute irreparable harm. 226 F. Supp. 2d at 412. Turning to Plaintiffs' likelihood of success on the merits, I found that Plaintiffs' proposed activities amounted to more than "mere religious worship" in that they included singing, teaching, socializing, and eating — "activities benefiting the welfare of the community, recreational activities and other activities that are consistent with the defined purposes of the limited public forum." Id. at 414-15. I also found that Defendants' argument that worship is different in kind from other activities was precluded by Good News Club. Id. at 416. Even if, arguendo, there were discernible categories of worship and non-worship, it would be futile to attempt to distinguish "religious content from religious viewpoint where morals, values and the welfare of the community are concerned." Id. at 418. Moreover, "the government may not, consistent with the First Amendment, engage in dissecting speech to determine whether it constitutes worship." Id. at 423. In response to Defendants' claim that their viewpoint discrimination was justified in light of their asserted compelling interest in avoiding an Establishment Clause violation, I held that permitting Plaintiffs to use space in the School would not lead to such a violation because Plaintiffs meet during nonschool hours, the meetings are obviously not endorsed by the School District, and the meetings are "open to all members of the public." Id. at 426.

  The Court of Appeals affirmed the preliminary injunction on June 6, 2003, acknowledging "the factual parallels between the activities described in Good News Club and the activities at issue in the present litigation." 331 F.3d 342, 354 (2003) ("Bronx III"). The Court of Appeals

f[ou]nd no principled basis upon which to distinguish the activities set out by the Supreme Court in Good News Club from the activities that the Bronx Household of Faith has proposed for its Sunday meetings at Middle School 206B. Like the Good News Club meetings, [Plaintiffs intended to] . . . combine preaching and teaching with such "quintessentially religious" elements as prayer, the singing of Christian songs, and communion. Id. Because the Board opened its schools for other social, civic, and recreational meetings so long as those uses are non-exclusive and open to the public, the Court found a substantial likelihood that Plaintiffs would be able to demonstrate that Defendants' refusal of Plaintiffs' permit application constitutes unconstitutional viewpoint discrimination. Id. The Court again noted the similarity of the instant facts to those in Good News Club and upheld the finding in Bronx II that Defendants were not justified in refusing Plaintiffs' application because allowing Plaintiffs to conduct their activities in the School would not give rise to an Establishment Clause violation. Id. at 356. The Court of Appeals did not reach the further determination that worship cannot be treated as a distinct activity, noting that this view contradicts the Court's position as expressed in Bronx I and was not explicitly rejected in Good News Club. Id. at 355.
  Plaintiffs thereafter applied for, and were granted, permission to use P.S. 15 located at 2195 Andrews Avenue, Bronx, New York ("P.S. 15"), on Sundays from 10:00 a.m. to 2:00 p.m. See Grumet Decl. I, Ex. F.*fn3 On March 23, 2005, the Board of Education announced its plans to modify Enjoined SOP § 5.11 to read as follows:
No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship. Permits may be granted to religious clubs for students that are sponsored by outside organizations and otherwise satisfy the requirements of this chapter on the same basis that they are granted to other clubs for students that are sponsored by outside organizations.
Pl. Rule 56.1 Stmt. ¶ 53.*fn4
  To clarify that the revised policy presents an actual case or controversy, on August 17, 2005, Defendants notified Plaintiffs that
Plaintiffs' use of P.S. 15 for the Bronx Household of Faith's regular worship services is prohibited under the revised section 5.11. Defendants are not currently enforcing the revised section 5.11 (or advising the field of this change) because of the preliminary injunction Order that was entered in this case. Should defendants prevail in their motion for summary judgment and the preliminary injunction Order be vacated, then any future application by plaintiffs to hold their worship services at P.S. 15 or any other school will be denied.
Letter from Lisa Grumet to Jordan Lorence and Joseph Infranco (August 17, 2005).

  On March 18, 2005, the parties were granted permission to cross-move for summary judgment, and they have done so. Amicus briefs were filed by the United States in support of Plaintiffs' motion and by The Association of the Bar of the City of New York in support of Defendants' motion. In addition, Agudath Israel of America previously filed an amicus brief in support of Plaintiffs' position.

  Plaintiffs seek to convert the July 2002 preliminary injunction into a permanent injunction by way of their motion for summary judgment and contend that the present SOP § 5.11 (2005) ("Present SOP § 5.11") is unconstitutional in the same manner as was the Enjoined SOP.

  Defendants argue that their refusal to rent space to Plaintiffs for Sunday morning meetings does not violate Plaintiffs' First Amendment rights and that, even if such refusal infringes on the First Amendment rights of Plaintiffs, the infringement is necessary so that Defendants can avoid a violation of the Establishment Clause.


  I. Summary Judgment Standard ...

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