The opinion of the court was delivered by: Loretta A. Preska
The Bronx Household of Faith, Robert Hall, and Jack Roberts ("Plaintiffs") are once again before this Court seeking a preliminary injunction against the Board of Education of the City of New York (the "Board")*fn1 and Community School District No. 10 (collectively, "Defendants") so that Plaintiffs' Church may continue to hold Sunday religious worship services in a New York City public school, as it has done without injunction in 2002 barring Defendants from enforcing a regulation that would prohibit Plaintiffs from conducting their religious worship services in the Board's schools. In November 2007, this Court made the preliminary injunction permanent and granted Plaintiffs' motion for summary judgment.
On June 2, 2011, the Court of Appeals reversed summary judgment and vacated the permanent injunction. After the Supreme Court denied Plaintiffs' petition for certiorari, the Court of Appeals issued its mandate on December 7, 2011. For the reasons stated below, Plaintiffs' latest request for a preliminary injunction is GRANTED.*fn2
The Bronx Household of Faith (the "Church") is a 37-year-old, "community-based" Christian church with approximately 85-100 congregants. (Hall Decl. ¶¶ 3, 6.) The Church has used the school auditorium in P.S. 15 in the Bronx, New York, on a weekly basis since 2002 for purposes of holding its Sunday worship services. (Id. ¶¶ 3, 5.) Defendants granted the Church permission to worship in P.S. 15 following this Court's July 3, 2002 order*fn4 enjoining Defendants from enforcing the Board's Standard Operating Procedure section 5.11 ("SOP § 5.11") so as to deny Plaintiffs' application or the application of any similarly-situated individual or entity to rent space in the Board's public schools for morning meetings that include religious worship. At the time this Court issued the preliminary injunction in 2002, SOP § 5.11 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.
Bronx II, 400 F. Supp. 2d at 587.
This Court found that, in light of the Supreme Court's decision in Good News Club v. Milford Central School, 533 U.S. 98 (2001), Plaintiffs demonstrated a substantial likelihood of success in showing that this particular iteration of SOP § 5.11 violated their First Amendment free speech rights.*fn5 Bronx I, 226 F. Supp. 2d at 413-15. After Good News Club, a school that opens its doors as a limited public forum may not prevent an organization from conducting activities in the school that are consistent with the defined purposes of the forum merely because those activities may be characterized as "quintessentially religious," such as Bible study or prayer. See Good News Club, 533 U.S. at 107-12. Because the Board opened its schools' doors, inter alia, for the purposes of "holding social, civic and recreational meetings and entertainment, and other uses pertaining to the welfare of the community" so long as "such uses [are] non-exclusive and open to the general public," BronX I, 226 F. Supp. 2d at 409, and because the Church's proposed uses on Sunday mornings-which included singing, Bible instruction, and prayer-were consistent with these defined purposes, this Court found the Board's excluding Plaintiffs from its schools likely would violate Plaintiffs' free speech rights. Id. at 413-15; see also id. at 422 ("I find it impossible to distinguish between, on one hand, activities proposed by the plaintiffs that are within the activities expressly permitted in this forum, viz., discussing religious material or material which contains a religious viewpoint and activities contributing to the welfare of the community and, on the other hand, an activity different in kind called worship."). The Court of Appeals affirmed the preliminary injunction but declined to review this Court's determination that Good News Club precludes meaningfully drawing a distinction between worship and other types of religious speech. See 331 F.3d 342, 353-55 (2d Cir. 2003) ("Bronx Appeal II").
In March 2005, the Board announced it planned to modify SOP § 5.11 ("Revised 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 [regulation] on the same basis that they are granted to other clubs for students that are sponsored by outside organizations.*fn6
Bronx II, 400 F. Supp. 2d at 588. The Board informed Plaintiffs that the Church's use of P.S. 15 for Sunday worship services was prohibited under Revised SOP § 5.11 but did not enforce the new policy because of the preliminary injunction. Id. The parties then cross-moved for summary judgment, and Plaintiffs further sought to convert the preliminary injunction into a permanent one on the ground that Revised SOP § 5.11 was unconstitutional in the same manner as its previous incarnation. This Court granted Plaintiffs' motion for summary judgment, denied Defendant's cross-motion for summary judgment, and permanently enjoined Defendants "from enforcing [Revised] SOP § 5.11 so as to exclude Plaintiffs or any other similarly situated individual from otherwise permissible after-school and weekend use of a New York City public school." Id. at 601. This Court's reasons for granting the permanent injunction paralleled those underlying the grant of the preliminary injunction, viz., in the context of a limited public forum Revised SOP § 5.11 constituted impermissible viewpoint discrimination on the basis of religion in violation of Plaintiffs' free speech rights, and such discrimination was not saved by the Board's perceived concern of violating the Establishment Clause. After the Court of Appeals vacated the permanent injunction on ripeness grounds, see 492 F.3d 89 (2d Cir. 2007) (per curiam), the Board officially instituted Revised SOP § 5.11, the parties again cross-moved for summary judgment, and this Court reissued the permanent injunction for the reasons stated in Bronx I and Bronx II [Dkt. No. 99].
A. The Court of Appeals Reverses Summary Judgment and Vacates the Permanent Injunction
In June 2011, the Court of Appeals issued a split decision reversing summary judgment and vacating the preliminary injunction. See 650 F.3d 30 (2d Cir. 2011) ("Bronx Appeal III"). The majority first concluded that "the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons only a type of activity-the conduct of worship services." Id. at 33. Further, "because Defendants reasonably seek by the rule to avoid violating the Establishment Clause," the majority held that "the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause." Id.
The majority drew a line between the individual religious activities expressly permitted in Good News Club (e.g., prayer, religious instruction, expression of devotion to God, and the singing of hymns), which amount to "worship," and "worship services"-the former permitted under Revised SOP § 5.11 and the latter excluded. Id. at 36-37. The majority then defined worship services as "a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion." Id. at 37. Regarding the Board's concern of violating the Establishment Clause, the majority made clear that it was not deciding "whether use of the school for worship services would in fact violate the Establishment Clause." Id. at 40; see also id. at 49 ("The Supreme Court has never ruled on whether permitting the regular conduct of religious worship services in public schools constitutes a violation of the Establishment Clause, and we reach no conclusion on that question."). Rather, it concluded that the Board's concern was reasonably objective, which was sufficient to justify the ban. Id. at 40-43.
Finally, the majority considered Plaintiffs' Establishment Clause claim but was "not persuaded." Id. at 45. It did not believe a reasonable observer would perceive Revised SOP § 5.11's ban on religious worship services as being hostile to religion. Id. at 45-46. And it did not believe that enforcement of the policy causes excessive governmental entanglement with religion. Id. at 46-48.
1. Judge Walker's Dissent
In his dissent, Judge Walker disagreed with the majority on both of its conclusions relating to the free speech analysis. First, he concluded that Revised SOP § 5.11's ban on religious worship services constitutes impermissible viewpoint discrimination. Id. at 54-59. He did not find that the majority drew a workable distinction between "worship" and "worship services" and concluded that Good News Club foreclosed the Board from excluding worship services. Id. at 55-56. Moreover, Judge Walker found the majority's definition of religious worship services "leads to anomalous results: while a Catholic or Episcopal service would be shut out of the forum, a Quaker meeting service, Buddhist meditation service, or other religions worship convocation could be allowed because it would not follow a 'prescribed order' or because the leader is not 'ordained.'" Id. at 56.
Second, Judge Walker did not find the Board's professed Establishment Clause rationale to be reasonable. Id. at 59-64. Instead, he would hold that "the actions of Bronx Household, a private party, cannot transform the government's neutral action into an Establishment Clause violation." Id. at 59. In Judge Walker's opinion, an objective, fully informed observer would not perceive governmental endorsement of religion because the Board's schools are "open to a wide spectrum of participants," which "bespeaks the state's neutrality, not its favoring of religion or any other group." Id. at 61. Finally, Judge Walker indicated that Revised SOP 5.11 raises Free Exercise Clause concerns and would not withstand a free exercise challenge because the Board cannot demonstrate a compelling state interest that would justify the policy's burdening of religious practices. Because Judge Walker found that the Board's Establishment Clause rationale is not even reasonable, he concluded that it could not be compelling. Id. at 58 n.4.
B. Most Recent Developments
The Court of Appeals denied Plaintiffs' request for an en banc rehearing on July 27, 2011, and the Supreme Court denied Plaintiffs' petition for certiorari on December 5, 2011. 132 S. Ct. 816 (2011). That cleared the way for the Court of Appeals to issue its mandate on December 7, 2011. Despite vacatur of the injunction, Defendants agreed to adjourn enforcement of Revised SOP § 5.11 until February 13, 2012.
On December 14, 2011, Plaintiff Hall submitted a new application on behalf of the Church to continue using P.S. 15 on Sunday mornings for the period January 8, 2012 to February 12, 2012. (Hall Decl. ¶ 15, Ex. A.) In the space on the application entitled "Description of activities to be conducted" Hall wrote, "Hymn singing, prayer, communion, preaching, teaching, fellowship." (Id.) On the permit approving the application, however, the Board listed the activities as "WORHIP [sic] HYMN SINGING, PRAYER, COMMUNION, PREACHING." (Id. ¶ 16, Ex. B.)
On December 16, 2011, this Court ordered the parties to confer and propose how they wished to proceed in light of the mandate. Plaintiffs' counsel called chambers on January 10, 2012, to inform the Court they had only that day received notice of the December 16 order but would confer with opposing counsel and report back to the Court as soon as practicable. On January 25, 2012, Plaintiffs' counsel wrote the Court that it intended to seek a new preliminary injunction based on claims that either remained undecided by the Court of Appeals or were revived by the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (Jan. 11, 2012).*fn7 The Court ordered the parties to confer on a proposed briefing schedule, which they worked out on an expedited basis.
Oral argument was held on February 14, 2012. At the conclusion of oral argument the Court asked the parties to confer as to whether they could arrange a temporary resolution for the coming weekend. That evening Defendants wrote the Court that they would not agree to suspend immediate implementation of Ch. Reg. D-180. The Court issued a temporary restraining order on February 16, 2012, enjoining Defendants from enforcing that part of Ch. Reg. D-180 that provides: "No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship."*fn8 The Court indicated in the temporary restraining order that a written opinion would follow; this is that opinion, applicable both to the temporary restraining order and the preliminary injunction.
II. STANDARD FOR PRELIMINARY INJUNCTION
Plaintiffs seek a preliminary injunction to preserve the status quo of meeting in P.S. 15 on Sunday mornings, which they have done since this Court issued its initial preliminary injunction in 2002. A court generally may grant a preliminary injunction when the moving party can establish both (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficient questions on the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the moving party. E.g., Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011). When a party seeks a "mandatory" preliminary injunction that "'alter[s] the status quo by commanding some positive act,' as opposed to a 'prohibitory' injunction seeking only to maintain the status quo," the moving party must make a "'clear showing that [it] is entitled to the relief requested, or [that] extreme or very serious damage will result from a denial of preliminary relief.'" Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010) (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34--35 (2d Cir. 1995)) (first alteration in original); see also Fifth Ave. Presbyterian Church v. City of N.Y., 293 F.3d 570, 574 n.2 (2d Cir. 2002) (noting the "'clear or substantial likelihood of success' standard applicable to mandatory injunctions").
When this Court issued the initial preliminary injunction in 2002, it applied the higher burden of proof required for mandatory injunctive relief because at the time the Church was not meeting in the Board's schools; thus, Plaintiffs sought to alter the status quo. Bronx I, 226 F. Supp. 2d at 411. This time around, Plaintiffs seek prohibitory injunctive relief because they wish to maintain the current status quo- viz., meeting in P.S. 15 on Sunday mornings as they have for nearly ten years. As such, although the Court finds that they have done so,*fn9 Plaintiffs are not now required to meet the higher standard of showing a substantial likelihood of success on the merits.
The Court finds that Plaintiffs have satisfied their
burden of demonstrating irreparable harm and a likelihood of success on the merits of their Free Exercise Clause claim and Establishment Clause claim. Furthermore, the Court finds that these claims are not precluded by the doctrines of the law of the case, claim preclusion, and issue preclusion. Each of these findings is addressed below.
A. Plaintiffs Will Suffer Irreparable Harm Plaintiffs claim that because Revised SOP § 5.11 prevents them from holding Sunday worship services in the Board's public schools-the only location in which they can afford to gather as a full congregation without having to curtail other of their religious practices-it prohibits their free exercise of religion in violation of their First Amendment rights. Plaintiffs assert the prohibitive cost of renting commercial space for the Church's worship services would force them "to reduce and/or eliminate ministries to [the Church's] members and . . . local community." (Hall Decl. ¶ 9.) "[The] entire congregation could no longer worship together," which would "undermine the fellowship" that is a "vital aspect of [the Church's] religious ministry and calling." (Id. ¶ 11.) Being banned from using the Board's schools would also "undermine [the Church's] ability to engage in the duties of [the Church's] Christian faith-to corporately pray for one another, hear testimony, engage in collective praise, and serve the local community." (Id. ¶ 12.) "In ...