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Bronx Household of Faith v Board of Education of City of New York

Case No. 12-2730-cv (C.A. 2, Apr. 3, 2014)

Defendants, the Board of Education of the City of New York and Community School District No. 10 appeal from the grant of summary by the United States District Court for the Southern District of New York (Preska, C.J.), permanently enjoining Defendants from enforcing a policy which permits the use of school facilities outside of school hours by outside organizations and individuals but provides that no permit shall be granted for the purpose of holding religious worship services. The Court of Appeals (Leval, J.) rejects the District Court’s conclusion that the policy violates the Free Exercise and Establishment Religion Clauses of the First Amendment. REVERSED.

This appeal raises the question whether the Board of Education of The City of New York (the “Board”), in making the City’s school facilities available outside of school hours for use by outside users and subsidizing such use, may, in furtherance of interests favored by the Establishment Clause of the First Amendment, refuse to permit the holding of religious worship services. The United States District Court for the Southern District of New York (Preska, C.J.) concluded that the Free Exercise and Establishment Clauses of the First Amendment compel the Board to allow outside users to conduct religious worship services in the school facilities and enjoined the Board from enforcing its prohibition. We conclude that the Board’s prohibition was consistent with its constitutional duties. We therefore vacate the injunction imposed by the District Court and reverse its judgment.

The Board and co-defendant Community School District No. 10 appeal from the District Court’s grant of summary judgment permanently enjoining Defendants from enforcing Chancellor’s Regulation D-180 § I.Q. (“Reg. I.Q.”) against Plaintiffs, The Bronx Household of Faith (“Bronx Household”) and its pastors Robert Hall and Jack Roberts. Regulation D-180 governs the “extended use” of school facilities (the term refers to the use of school facilities outside of school hours by outside organizations and individuals). Extended use, which requires a permit issued by the Board, is subsidized in that no rent is charged for use of the school facilities. Reg. I.Q. provides: “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”
 

 

Judge(s): Pierre Leval
Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Civil Rights , Constitutional Law , Education
 
Circuit Court Judge(s)
Guido Calabresi
Pierre Leval
John Walker

 
Trial Court Judge(s)
Loretta Preska

 
Amicus Lawyer(s) Amicus Law Firm(s)
Deborah Dewart
Michael McConnell
Daniel Mach ACLU Foundation
Ayesha Khan Americans United for Separation of Church and State
Alex Luchenitser Americans United for Separation of Church and State
David Barkey Anti-Defamation League
Steven Freeman Anti-Defamation League
Seth Marnin Anti-Defamation League
Jonathan Bell New York City Bar Association
Rosemary Halligan New York City Bar Association
Jillian Stillman New York City Bar Association
Pilar Sokol New York State School Boards Association Inc
Jay Worona New York State School Boards Association Inc
Arthur Eisenberg NYCLU Foundation
Beth Haroules NYCLU Foundation
Donna Lieberman NYCLU Foundation
Christopher Hemphill Strook & Stroock & Lavan LLP
Bruce Schneider Strook & Stroock & Lavan LLP
Luke Goodrich The Becket Fund for Religious Liberty
Eric Rassbach The Becket Fund for Religious Liberty
Allison Jones Williams & Connolly LLP

 
Appellant Lawyer(s) Appellant Law Firm(s)
Michael Cardozo Office of the New York City Law Department
Charles Carey Office of the New York City Law Department
Jane Gordon Office of the New York City Law Department
Lisa Grumet Office of the New York City Law Department
Edward Hart Office of the New York City Law Department
Jon Pines Office of the New York City Law Department
Janice Silverberg Office of the New York City Law Department

 
Appellee Lawyer(s) Appellee Law Firm(s)
David Cortman Alliance Defending Freedom
David Hacker Alliance Defending Freedom
Heather Hacker Alliance Defending Freedom
Joseph Infranco Alliance Defending Freedom
Jordan Lorence Alliance Defending Freedom

 

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11 returning to the present case, as we explained at length in bronx household iv, the 1 the district court also justified its finding based on the fact that the board’s policy reasonable for the board to worry that use of the city’s schools for religious worship services . . . 6 burdensome regulation focused on a religious practice is constitutionally suspect and therefore decision, he would have deemed the plaintiff’s ministerial status conclusively established by the 18 c) discrimination against particular religions. 6 because, notwithstanding its disguise, it in fact applied almost exclusively to the santeria ritual of government and religion because they (1) take sides in a religious matter, effectively 18 [governmental agencies] cannot be expected to resolve so precisely the inevitable tensions 8 facilities. reg. i.q. provides: “no permit shall be granted for the purpose of holding religious3 30 washington, d.c., for amicus curiae the becket fund for religious liberty. 4 august term, 2012 bronx household v. board of education   26 allison b. jones, williams & connolly llp, washington, d.c., for amicus 14 and state, washington, d.c., for amicus curiae americans united for separation sincerely considered perich a minister. that would be sufficient for me to conclude that perich’s 19 we also disagree with the district court’s view that reg. i.q. is a constitutionally suspect 15 forbids might not inevitably be determined to violate the establishment clause” because “[t]he 9 that a motivation to avoid violation of the establishment clause would justify the board’s 5 services in the school facilities. the activities not prohibited are likewise permitted to all users. chosen according to religious criteria,” id. at 425, the board had not engaged in any comparable 16 bronx household, may ask to conduct religious worship services and be denied. 9 strict scrutiny pursuant to lukumi, the court concluded:   5 assessment of the pertinent facts (including the nature of the duties assigned to her), the court 6 worship services so as not to risk violating the establishment clause is automatically 3 silverberg, charles carey, on the brief), of counsel, for michael a. cardozo, 16 implicit, constitutionally mandated “ministerial exception” to the employment discrimination 18 entanglement by requiring the board to take an official position on religious doctrine. unlike in protection of the first amendment”).    19 enjoined the board from enforcing its prohibition. we conclude that the board’s prohibition was 7 almost exclusively a religious practice of the santeria church, were permissible in light of 14 “[t]he supreme court has warned that violation of the establishment clause can result from 13 establishment clause claim; and (3) the fact that the board’s policy (a) leaves all persons and schools pursuant to a neutral policy that creates limited public fora would violate  19 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 8  14 adequate reason for declining to offer the school facilities for the conduct of religious worship program  for  post‐secondary  education  that  allows  students  to  attend  qualified  21       39.  the department thus effectively concedes that its object “is to infringe upon  1 religions free to engage in whatever practices they wish anywhere other than the board’s school 12-2730 nor could a decision by the board overruling an applicant’s own understanding of16 17 put the board in an impossible position of being compelled at its peril to risk violating one 8 developing an illness and taking a period of disability leave. 132 s.ct. at 700. the plaintiff sued government  endorsement  of  religion  presented  when  plaintiffs  and  other  1 sacrifice while other religions did not. the prohibition of santeria’s ritual animal sacrifice was 4 constitution, far from forbidding government examination of arguably religious conduct, at times bronx household v. board of education 6  10 a. the free exercise clause 6 jordan w. lorence, (joseph p. infranco, alliance defending freedom, groups  “for  the  purpose  of  holding  religious  worship  services,  or  otherwise  practices. 4 context of santeria religious ceremonies. id. at 536. because the prohibition was found to be discriminates  against  some  or  all  religious  beliefs  or  regulates  or  prohibits  3 application to reg. i.q. 14 slaughter. we found that the law sought to suppress ritualistic animal 12-2730 generally applicable because in both effect and operation it targets only religious  17 (exempting, for example, fishing and kosher slaughter) made the prohibition apply almost 6 of reg. i.q. must be assessed under strict scrutiny because it prohibits the provision of a of the first amendment.  see bronx household of faith v. bd. of educ. of n.y., 650  *  *  *  *  *  *  the  majority  states  that  the  “free  exercise  clause  .  .  .  has  never  been  being found in violation of the establishment clause. regardless of which of these three worship services were allowed in school facilities in these circumstances.  the  16 religions free without interference to engage in whatever religious practices they choose to consider whether the board might also lawfully deny an application for a permit based solely 13 the supreme court’s recent decision in hosanna-tabor. id. at 64. the district court believed 7 animal sacrifice, the supreme court found that the ordinances were subject to strict scrutiny, and 18 would be exceedingly unfair to the board. in our view, the better rule allows the board, if it bronx household v. board of education 15 religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all bronx household v. board of education 17 clause violations are difficult.” id. at 476; see id. (“[i]n dealing with their employees, 28 14 activity is not a suspect discrimination among religions merely because some religions do and (calabresi, j., concurring). bronx household v. board of education 20 students to choose between their religious beliefs and receiving a 15 here.” 540 u.s. at 718-19, 725 (internal quotation marks omitted). if it was clear that the state of 6 board, furthermore, makes no attempt to define, or impose on applicants a definition of, what 9 theology, the court explicitly considered and rejected the argument that establishment concerns 15 of church and state. 12-2730 27 conclusion that the policy violates the free exercise and establishment religion clauses of the religious worship services . . . [would] expose[] the city to a substantial risk of  interest in enforcing reg. i.q. to avoid an establishment clause violation is not  18 service or rite. it does not deny to ministers the right to participate in                                                                9 animal sacrifice. see lukumi, 508 u.s. at 547 (“those in office must be resolute in resisting religion  and  religion,  and  between  religion  and  nonreligion,”  epperson  v.  underinclusive  to  serve  that  interest.    see  lukumi,  508  u.s.  at  546.    reg.  i.q.  6 persuade any student to alter his or her religious beliefs.” such rules can hardly be state to take an official position on religious doctrine; and (3) create an impermissible fusion of 12-2730 13 household of faith v. cmty. sch. dist. no. 10, 127 f.3d 207 (2d cir. 1997). the “religious worship services” clause does not purport to prohibit  free exercise clause.”  church of the lukumi babalu aye, inc. v. city of hialeah, 508  applicable.    f.3d 30 (2d cir. 2011) (“bronx household iv”).  in my view, it does.  the majority  19 distribute flyers, and proselytize outside the school buildings. in some schools, no other outside denial of future permit applications and other legal actions by the [board].”). 7 subsidized premises for the conduct of religious worship services, constitutes a discrimination 6 determined that she was a minister. see 132 s.ct. at 707-08 (“as a source of religious 15 whether proposed activities that the application does not describe as a religious worship service 11 that reg. i.q. compels excessive entanglement because the board acknowledged that its policy of 10 moreover, in view of the fact that both the free exercise and establishment clauses impose 17 quotation marks omitted). as we explained, during sunday services, under the district court’s   religious belief and cannot be justified by a compelling government interest.  i  6 religions that conduct religious worship services are not excluded by reg. i.q. from the 36 9 american bible society, the rev. charles h. straut, jr. and christian legal 14 thus, it is clear that the free exercise clause would not prohibit the board from denying 13 conclude that the district court erred in concluding that reg. i.q. violates the establishment 14 services would violate bronx household’s rights under the free exercise clause because the 4 whether the plaintiff was a minister subject to the ministerial exception. based on its own 22 association of the bar of the city of new york. 7 board would become excessively entangled in religious matters in undertaking to determine 5 defendants appealed, and this case is now before us for the sixth time. narrowly  tailored  to  advance  that  interest.”    lukumi,  508  u.s.  at  531‐32  (citing  exercise clause.1    14 involving bronx household) in which, contrary to board policy, a permit applicant who   2 that in declining to furnish school facilities for the conduct of religious worship services, reg. 8 12-2730 bronx household v. board of education 12‐2730  5 substantial state [anti-establishment] interest at issue, we therefore cannot conclude that the 4 faith (“bronx household”) and its pastors robert hall and jack roberts. regulation d-180 8 hialeah’s interest in observing the establishment clause. see good news club, 533 u.s. at 112- 13 (the “board”), in making the city’s school facilities available outside of school hours for use by1 to subsidize religious worship services by providing rent-free facilities to house such services. 17 forbid discrimination in employment, stating something like, “no minister of a religious faith 9 important part of worship services, were planning to build a house of worship in the city of 11 first, the constitutional impropriety that led the supreme court to read a ministerial congregations use public schools to engage in worship services.”  appellants’ br.  13 primarily for the purpose of food consumption. id. at 526-28. hialeah claimed that the 11 bronx household v. board of education   10 view the district court’s reasoning is incorrect for several reasons. in the first place, we think the 3 we recognize that a school authority’s prohibition of a religious practice, even if explained as an 9 on remand, the district court concluded that “[f]actual and legal developments since 3 as with respect to the application itself, in reviewing an applicant’s website or other public 7 washington, dc; david a. cortman, alliance defending freedom, 18 website or in other public materials an intention to conduct a religious worship service without 9 the lukumi opinion, indeed, declared the “principle” that “government, in pursuit of services  would  have  the  principal  or  primary  effect  of  advancing  religion  or  16 upon reconsidering bronx household’s establishment clause claim, the district court that  term,  reg.  i.q.  burdens  many,  although  not  all,  religions  and  no  secular  12-2730 12 explained, as set forth above, that “there is room for play in the joints between [the religion 19 subject to [the prohibition] is the religious exercise of santeria church members.”). in addition, davey,  in  which  strict  scrutiny  was  not  applied  to  a  state‐funded  scholarship  9 clause. we respectfully disagree. 6 we decided that the holiday display policy did not violate the free exercise clause and, in doing 18 the ecclesiastical actions of the church. 17 (including, of course, religious worship services) throughout the city. it represents only a   5 injunction barring enforcement of reg. i.q. is vacated. bronx household v. board of education 10 making that determination. this is for two reasons. 18 requiring a church to accept or retain an unwanted minister, or punishing a teacher receives the formal title ‘minister of religion, commissioned’. . . . hosanna-tabor asked 1 finding no animus toward religion in the legislative history or text of the prohibition, nor 16 the church whom it must employ to serve as minister, communicating its teachings to its faithful. 14 state cannot interfere with a parent’s fundamental right to choose religious education for his or 9 marchi’s free exercise rights” in interpreting the directive to prohibit communications that applicants to state whether they will conduct religious worship services. a good faith and reasonable concern that such subsidizing would present a meaningful risk of 13 supreme court eventually rules that the practice causes sufficient appearance of endorsement to 3 to bronx household, as well as numerous other churches, for the conduct of subsidized worship 16 moved for a preliminary injunction against enforcement of reg. i.q., this time on different 1 exercise clause, which protects a religious group’s right to shape its own bronx household v. board of education 10 hosanna–tabor, 132 s.ct. at 706, and no amount of bureaucratic second- 12 board has substantial reasons for concern that hosting and subsidizing the conduct of religious services on the same terms as other community organizations.  id.  finally, an  6 id. at 706. emp’t div. v. smith, 494 u.s. 872 (1990)).  reg. i.q. is neither neutral nor generally  24 a policy which permits the use of school facilities outside of school hours by outside 10 could justify the religion-based exclusion only if the reviewing court concluded that granting the 11 1) the free exercise clause does not entitle bronx household to a grant from the board 4 restriction, the court observed that “[t]he[] two [religion] clauses . . . are frequently in tension. organizations using its facilities.  whereas locke dealt with directly funding the  1 target religion. they target religion in order to give effect to the constitution’s religion clauses, 13 hialeah made it a crime to engage in certain kinds of animal 18 f.3d at 35; bronx household of faith v. bd. of educ. of city of new york, no. 01 civ. 8598, we did not find that a violation of the establishment clause had occurred or would have5 exercises.’”  id. at 63 (second alteration in original) (emphasis removed) (quoting  1 clause by compelling the board to make decisions that constitute excessive entanglement with justification  (under  the  majority’s  holding)  or a  compelling justification  (under  12-2730 12 excluded practice would in fact constitute a violation of the establishment clause, steering clear establishment  clause  justification  has  no  greater  purchase  under  the  free  20 ecclesiastical decisions. bronx household, 876 f. supp. 2d at 440. 4 hosanna-tabor would fail to pass the test of hosanna-tabor. we believe the district court has 10 conducted,” and to sign a certification that “the information i have provided . . . is complete and 5 america, interfaith assembly on homelessness and housing, anglican church in 14 by the free exercise clause. . . . if any room exists between the two religion clauses, it must be sufficiently  tailored  to  accomplish  the  interest  that  the  school  board  has  2 services would violate the free exercise and establishment clauses. we disagree. we conclude 2 of the city of new york, union of orthodox jewish congregations of america, 10 “sufficiently intruded religious content into a curricular matter, not involving religion, such that 7 a permit issued by the board, is subsidized in that no rent is charged for use of the school i now turn to the issues presented in the current appeal.    4 of coop. educ. servs. of albany, 173 f.3d 469 (2d cir. 1999), we considered a teacher’s claim       the  establishment  clause,  and  even  if  reg.  i.q.  were  intended  to  address  that  see also reg. d-180 § ii.l (“providing incorrect, incomplete, or misleading15 need not ask whether bronx household is “substantially burdened” because the  5 of the lukumi babalu aye, inc. v. city of hialeah, 508 u.s. 520 (1993) (“lukumi”), the validity 4 clause obligates the board to provide them with a subsidized facility in which to exercise the public  forum.    see  bronx  household  iv,  650  f.3d  at  36.    reg.  i.q.  is  not  a  9 avoid establishment clause issues, even if it thereby imposes limits that go beyond those 10 government may not compel any person to adopt a prescribed religious belief or form of worship, bronx household v. board of education neutral in design.”  rosenberger, 515 u.s. at 839 (citing lamb’s chapel, 508 u.s. at  2 constitutional right to worship as they choose without interference from government, and cannot 7 subject to strict scrutiny. this reasoning makes perfect sense when the regulation’s focus on 12 secular context, and in no circumstances will a practice be prohibited because of disapproval of 16 services. the united states district court for the southern district of new york (preska, c.j.) 12-2730 “the synod classifies teachers into two categories: ‘called’ and ‘lay.’ . . . once called, a17 15 we believe the district court’s reasoning was flawed in two respects. first, as explained 20 organizations use the space. accordingly, on sundays, some schools effectively become churches 14 will not apply to conduct religious worship services and will therefore not be refused something 20 religious worship service would not entail imposing any such control over a church’s religious schools, there are pass-along contractual costs . . . i.e., costs incurred in schools for custodial even if there were a real concern that allowing religious services in public  bronx household v. board of education   13 v. bronx household v. board of education 15 there is a constitutionally compelled “ministerial exception” to the laws forbidding 11 undertaken as a religious exercise, unless it similarly prohibits the practice when done in a a) suspect discrimination against religion.16 and places a burden on religious conduct, i would apply strict scrutiny.   16 from appearing to take a position on questions of religious belief.” 650 f.3d at 41 (internal and  not  generally  applicable.    see,  e.g.,  thomas  v.  review  bd.,  450  u.s.  707,  718  6 religious and secular practice equally, and had not been motivated by hostility to santeria’s 7 exercise clause.” id. at 718-19 (citations and internal quotation marks omitted). specifically 3 rule or practice that constitutes an improper burden on the free exercise of religion, or that 11 complying with the establishment clause. the free exercise and establishment clauses place discussion of issues from a religious point of view.”  id. at 38.  a regulation that  18 shall have a claim against the church or religious organization that employs the minister for the possibility  that  an  establishment  clause  violation  would  result  if  religious  2  12 exception into the employment discrimination statutes is not present on these facts. the problem 23 applicant’s own characterization. 13 clauses]. . . . [s]ome state actions permitted by the establishment clause . . . [are] not required recognition of its implications for the excessive entanglement argument. justice thomas, who § v. 17 defendant-appellants 12‐2730  10 the bronx household of faith, robert hall, and jack roberts, department of education regulation of the chancellor d‐180 § i.q. (“reg.  19 the board deciding for itself whether an applicant’s proposed conduct constitutes a 14 this decision pertinent because the supreme court “emphasized the wide berth religious 10 church—we conclude that perich was a minister covered by the ministerial exception.”).18 neutrality  of  the  forum  is  preserved  when  religious  speech,  like  non‐religious  8 generation. in light of . . . the formal title given perich by the church, the substance reflected in 3 furthermore, our court has repeatedly rejected the district court’s rule. in marchi v. bd. hours  in  public  schools—limited  public  fora  that  are  otherwise  open  to  all— bronx household v. board of education 37 23 id. at 720-21 (citations and footnote omitted). 12 further his or her spiritual development.” (internal quotation marks and emphasis omitted)); 20 conduct as a religious worship service that the board will consider it to be such. the aspect of the 2 which themselves apply only to religion. yet under the district court’s analysis, a statute stating 5 of the supreme court’s opinion that, if the prohibition had applied across-the-board, affecting content‐based  exclusion  that  is  constitutionally  permissible  because  “it  was  this conclusion is bolstered by an empirical survey submitted to this court  nor was the supreme court’s undertaking to determine for itself whether the plaintiff18 13 household, 876 f. supp. 2d at 440-41. for example, the board acknowledged an instance (not 9 the first place, bronx household had expressly applied to conduct “christian worship services.” 533 (citing smith, 494 u.s. at 878‐79).  17 concluded that the free exercise and establishment clauses of the first amendment compel the 13 reasoned that, because the free exercise clause requires that religions be free to select their own worship services.  id. at 64.    6 would likely have rejected, for example, a claim by hialeah that its ordinances, which prohibited 4 so does not turn on whether such use of school facilities would in fact violate the       1 and in skoros v. city of new york, 437 f.3d 1 (2d cir. 2006), we considered a free 1 circumstances would the board under reg. i.q. be telling any person or entity how to conduct 16 reg. i.q. or the operation of board’s policy. underlying the board’s prohibition is a slightly concurred in the judgment, wrote separately, espousing the very arguments bronx household 16 disfavor of religion (if it can be called that) is of a far milder kind. it 1 religion and as such was forbidden by good news club v. milford cent. sch., 533 u.s. 98, 111- 15 sacrifices of the santeria religion. in the present case, the state’s 16 are conducted according to the rules dictated by the particular religious establishment and are organizations.    it  is  thus  “an  impermissible  attempt  to  target  .  .  .  religious  2 legislation claimed a variety of secular goals, those objectives were belied by exclusions that 20 officials cannot discharge their obligations under the establishment clause without examining 6 north america, national council of the churches of christ in the usa, general [the plaintiff] to become a called teacher. [she] accepted the call and received a ‘diploma of establishment  clause  violation  was  not  sufficiently  compelling  because  “the  19 performance of ministerial duties.” these hypothetical rules – the very rules declared by the 27 13 violation of the free exercise clause. it is rather that lukumi’s invocation of presumptive 15 perception of endorsement. the establishment clause, at the very least, prohibits government governmental and religious functions by delegating civic authority to individuals apparently arkansas, 393 u.s. 97, 104 (1968), i respectfully dissent.    cir. 2005). 13 board reviews the applicant’s “description of activities to be conducted” to see whether the 5 8 against religion generally, and constitutes a discrimination against those religions that conduct 15 establishment clause of the first amendment, refuse to permit the holding of religious worship expose[d] the city to a substantial risk of being found to have violated the establishment reg.  i.q.  is  not  neutral  or  generally  applicable  because  it  explicitly  no evidence whatsoever that the board applies reg. i.q. only where the proposed religious bronx household v. board of education 12 documenting how the board’s current policy fosters excessive governmental entanglement” and 1 we respectfully disagree. the evidentiary record does not sustain the district court’s 14 constitute a violation of the establishment clause, the board would have committed years of 21 board’s policy that allows it to look at an applicant’s website and other public materials in 12 instances “government officials cannot discharge their constitutional obligations without close 1  12‐2730  3 tabor as prohibiting a governmental authority from making such determinations has no 17 scrutiny. 2 1) the district court erred in concluding that reg. i.q. violates the establishment rosenberger, 515 u.s. at 842).  i thus concluded that the board of education could  25 organizations and individuals but provides that no permit shall be granted for the purpose of 15 toward religion generally or toward a particular religion or religious practice in either the text of court, we were asked to decide whether reg. i.q. violates the free speech clause  15 services.” 650 f.3d at 35. furthermore, we noted that bronx household’s argument 4 constitutes an establishment of religion.” or a school board might adopt a rule stating, “no 5 right. the free exercise clause, however, has never been understood to require government to worship service would be conducted by an ordained minister. the district court perhaps based 14 unconstitutionality and strict scrutiny cannot reasonably be understood to apply to rules that that are sponsored by outside organizations and otherwise satisfy the requirements of this 15 religious viewpoint. it was a content-based exclusion of a particular category of activity, which 2 establishment of religion. if public officials were not permitted to undertake such inquiries, they 5 applicationmaybeproperforpurposesofverifyingapoliticalorcommercial not  raise  the  specter  of  establishment  clause  concerns  as  either  a  reasonable  12-2730 15 to animals. id. at 527-28. although the set of ordinances was designed to appear to apply even- 20 hastings coll. of the law v. martinez, 130 s.ct. 2971, 2996 (2010). in lukumi, the reason for cf. ricci v. destefano, 557 u.s. 557, 585 (2009) (“[u]nder title vii, before an employer9 1 preliminary injunction, bronx household of faith v. bd. of educ. of city of new york, 855 f. 16 decisions governmental agencies make in determining when they are at risk of establishment 9.  twenty‐five of these school districts expressly allow religious worship in their  advanced, namely, avoiding the risk of being perceived as establishing religion.  12 a set of ordinances prohibiting the unnecessary killing of animals in a ritual or ceremony not 20 jillian rennie stillman, jonathan r. bell, rosemary halligan, the association of 17 12-2730 4 establishment concerns and protect itself against reasonable establishment clause challenges.7 8 violating the establishment clause, “we afford the government some leeway in policing itself to 13 strict scrutiny. furthermore, a reasonable governmental decision not to subsidize a category of 16 in fact constitute a religious worship service. the board may, however, look beyond the permits extensive religious conduct in public schools, such as a quaker meeting  12 religious worship services would create a substantial risk of incurring a violation of the i. reg.  i.q.’s  ban  on  religious  worship  services  must  be  justified  by  a  bronx household v. board of education question  is  “whether  the  [government  action]  imposes  any  burden  on  the  free  at 36.  i concluded in bronx household iv that, under good news club v. milford  18 clause claim, should not close the matter as neither we nor the district court had passed on its 2 whether it might be found in violation of the establishment clause if it offers its school facilities   the  majority  contends  that  reg.  i.q.  is  permissible  because  the  board  characterization as conclusive. justice thomas argued that, in order not to intrude on theological because  the  “first  amendment  mandates  governmental  neutrality  between  bronx household v. board of education 19 dealing with applications to conduct arguably religious exercises on public property, government 7 capacity regarded by the church as that of a minister, was dismissed from her employment after 10 hialeah, florida. 508 u.s. at 525-26. members of hialeah’s city council disapproved of education. see, e.g., a.r. ex rel. r.v. v. new york city dep’t of educ., 407 f.3d 65, 67 n.2 (2d official of the religion.    11 news club. such religions, it is true, may not use the school facilities for the conduct of religious and continuing surveillance leading to an impermissible degree of government  15 institutions are to be given with respect to their core activities, including worship.” id. at 63. mahaffey, 35 f.3d 846, 849‐50 (3d cir. 1994) (holding that requiring plaintiffs to  but be deemed satisfied when government decides not to subsidize a religious practice acting on facilities.    id.  at  10.    an  additional  eighteen  implicitly  allow  religious  worship  19 interest in respecting the principle of the establishment clause that disfavors public funding of against religious worship, the second clause, which does not distinguish between religious and exercise clause than it has under the free speech clause.    11 subsidy for the excluded religious purpose would in fact violate the establishment clause. it discriminating in favor of the orthodox hebrew view of dietary requirements; (2) require the or restrict practices because of their religious motivation.”  lukumi, 508 u.s. at  14 application for an extended use permit specified its intention to conduct “christian worship 19 and american civil liberties union. 16 free to conduct worship services wherever they choose other than the board’s schools; as well as 9 defending freedom, folsom, ca, on the brief), alliance defending freedom, 7 litigation, it has been rejected. see, e.g., locke v davey, 540 u.s. 712 (2004) (finding that the john m. walker, jr., circuit judge, dissenting:  3 chancellor’s regulation d-180 § i.q. (“reg. i.q.”) against plaintiffs, the bronx household of 17 grounds. bronx household asserted that our prior ruling, which was based on its free speech 393‐94; bd. of educ. v. mergens, 496 u.s. 226, 248, 252 (1990); widmar v. vincent,  being found to have violated the establishment clause.”  id. at 43.    2 targeting a religious practice of a particular religion are subject to strict scrutiny has no 31 thomas p. gies, frederick w. claybrook, jr., crowell & moring, llp, new 12-2730 because i believe that reg. i.q. is neither neutral nor generally applicable  17 clause.” id. at 47. the establishment clause prohibits government officials from taking action 17 challenged by davey, a gifted student, who was awarded a grant but was informed that it could 3 clause because it compels the board to become excessively entangled with religion by congregation without having to curtail other of their religious practices.’”  bronx  the  majority  believes  that  this  case  should  be  decided  under  locke  v.  be a religious worship service. the application would have lost no opportunity to conduct a 15 violation of that clause. under the district court’s rule, the board would be compelled to court  in  locke  explicitly  acknowledged  that  the  scholarship  at  issue  “is  not  a  24 10 [bronx household iv] merit reconsideration of plaintiffs’ establishment clause claim.” bronx 9 permit. the application form requires the applicant to provide a “description of activities to be 17 concluded that reg. i.q. compels board officials to become excessively entangled with religion 12‐2730  4 permitted the display of “secular” holiday symbols including christmas trees, menorahs and the 25 13 them will be different to the extent that religions that do not conduct religious worship services understood  to  require  government  to  finance  a  subject’s  exercise  of  religion.”   2 for the second circuit new york city alone entirely excludes religious worship from its facilities.  brief  1 we do not mean to imply that merely by claiming the motivation of observing interests 8 clause. bronx household, 876 f. supp. 2d at 440-45; see lemon v. kurzman, 403 u.s. 602, 612-       3 children’s club to meet at the school outside of school hours because of the club’s religious 11 with the same argument. we rejected it. first, we noted that whatever merit the argument might religious  and  non‐religious  expression  alike.    id.  at  64.    i  noted  that,  in  9 difference between excluding the conduct of an event or activity that includes expression of a 17 eligibility for its scholarships, even though making them eligible would not have violated the objectively reasonable for the board to worry that use of the city’s schools for  3 concern that by hosting and subsidizing religious worship services, the board would run a 4 12-2730 5 the board’s policy is not to make its own determination whether conduct proposed by an 12 plaintiff-appellees, 5 light of the reasonableness of the imposition of the rule to guard against being found in violation 15 district no. 10, 6 in hosanna-tabor, the plaintiff perich, who was employed by a church to teach in a household to worship in public school facilities made broadly available to the  bronx household v. board of education   19 church for failing to do so, intrudes upon more than a mere employment 12-2730 7 is a required element of a course of instruction for [his] students and has prior approval by [his] 21 against religion and are not constitutionally suspect simply because the limitations they impose judge walker argues in his dissent that “locke is not applicable here . . . because it dealt6 particularly relevant to the current appeal, i also concluded that permitting  26 plaintiff was in fact performing in the role of a minister. incur charges for use of additional services or specialized equipment or facilities. see reg. d-180 17 the other reasons recited in this opinion and in bronx household iv, we conclude that reg. i.q. religious worship service because of the board’s own characterization of the proposed activities. 11 regulation are secular. legislators may not devise mechanisms, overt or disguised, designed to 13 22 district no. 10 appeal from the grant of summary by the united states district court for the regulation on the same basis that they are granted to other clubs for students that are sponsored 10 clause. we disagree.”). 9 who can determine for themselves how to “shape their own faith,” 3 historical aversion to using tax funds to support the ministry, “which was one of the hallmarks of bronx household iv, 650 f.3d at 52-65. our responses are contained in previous bronx using a school as a house of worship.”  the last time this case was before this  15 services. bronx household, 876 f. supp. 2d at 433-37. the board contends this was error. 1 b. the establishment clause essential feature of services to which reg. i.q. applies, the board has essentially left it to 21 household in needing to find a location that is not subsidized by the city for the conduct of its suit is properly barred by the ministerial exception.”). no justice joined in justice thomas’s 3 could not discharge their duties to guard against violation of the establishment clause. thus, the purpose  in  creating  the  policy  was  to  “avoid  both  the  fact  and  appearance  of  4 nonreligious “religious worship service.” in our view, the district court’s conclusion is based on 12-2730 3 determine which individuals will minister to the faithful also violates the 14 outside users and subsidizing such use, may, in furtherance of interests favored by the was a minister, rather than accept the church’s characterization, done carelessly without religious worship services” or (2) “otherwise using a school as a house of worship.” in this 11 guessing—even if based solely on the adherents’ own words—may invade judgment on the supreme court’s determination, rather than the church’s designation, that the 8 effectively nullify the establishment clause.” id. 21 striking down the hialeah ordinances was not that the santeria religion wished to practice animal 22 communicate the tenets of its faith through a minister not of its own choosing, under no 2 clause. id. at 45-48. we found no basis for bronx household’s contention that the rule was government subsidy. as discussed above, the regulation represents a governmental decision not 8 in lukumi, worshipers in the santeria religion, in which animal sacrifice plays an 13 ayesha n. khan, alex j. luchenitser, americans united for separation of church 6 and that reg. i.q. does not impose an unconstitutional burden on bronx household’s right of concluded that reg. i.q. is not viewpoint discriminatory because it excluded “the  17 their religious practices.” bronx household, 876 f. supp. 2d at 426. the district court cited no 19 makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of occurred but for the prohibition on religious worship services but rather that “it was objectively 12-2730 4 nature constituted viewpoint discrimination and violated the club’s free speech rights. see bronx conditions.  id.  of course, the status quo does not ipso facto render government  1 that the board disapproves of religion or any religion or religious practice, including religious maj. op. at 9.  allowing an entity to use public school space open to all others on  government action here, in specifically targeting religious conduct, is not neutral  12 their province. expensive and crowded real estate market in which the church resides.”  id. at  objection. all of the eight other justices joined in one or both of the chief justice’s opinion for 6 there are some state actions permitted by the establishment clause but not required by the free 9 ordinance that summarizes the supreme court’s ruling. the ordinance might provide something household,  876  f.  supp.  2d  at  445  (internal  quotation  marks  and  alterations  18 establishment clause, we see no reason why the board may not similarly in service of the       16 with representation of washington, 461 u.s. 540, 549-50 (1983) (“we have held in several 3 services over those that do. the board’s only motivation is to act consistently with its 12-2730 3 risk of violating the establishment clause, the permissibility of the board’s refusal to do the court, and the concurring opinion of justice alito, both of which explicitly justified the 2 struck down because the evidence showed that the prohibition was motivated exclusively by 10 religious worship services would not violate the establishment clause, the board would have 10  5 establishment clause.       12-2730 15 endorsing, or seeming to endorse, a religion. it is only to the extent that governmental conduct 16 the constitutionality of such rules must be assessed neutrally on all the facts and not under strict clear that the presence of an officiant was merely a common feature, and not a definitional and only burdens religious conduct.  such facial discrimination alone establishes  6 applicant constitutes a religious worship service. to the contrary, the board’s policy is to rely on 6 outside of school hours by outside organizations and individuals). extended use, which requires2 20 before: walker, leval, and calabresi, circuit judges. 1 id. at 42. we noted also that the fact that school facilities are available for such use primarily on 12‐2730  not reach the district court’s additional holding that reg. i.q. “calls for official  13 commissioned minister. if the district court were correct, the church’s classification of the17 practices.”  lukumi, 508 u.s. at 535.    (1981); sherbert, 374 u.s. at 403; tenafly eruv assoc. v. borough of tenafly, 309 f.3d  any such putative nonreligious worship, would be sufficient to pass constitutional muster since it establishment clause for a [school] to grant access to its facilities on a religion‐ 14 ministers, and because the establishment clause is offended by giving the state the power to bronx household v. board of education       this passage was descriptive, rather than prescriptive, and included the word “generally” to make 12 this appeal raises the question whether the board of education of the city of new york 18 injunction, the board’s schools are dominated by church use: “church members post signs, 6 bronx household v. board of education 11 our point is therefore not that a refusal to subsidize a religious practice, sought to be to an order prescribed by and under the auspices of an organized  9 more importantly, upon facts very similar to ours, the supreme court has expressly ruled 12-2730 12 worship services placed no restriction on the use of school facilities by religious groups to teach 12-2730 8 supervisor.” id. at 472-73. we decided that the school board “d[id] not impermissibly infringe endorse[]  a  religious  message.”    id.  at  61.    such  a  policy  would  not  provide  bronx household v. board of education   whether proposed activities constituted a religious worship service ever deprive an applicant of 7 verifyingwhethera religious applicant is complying with theworship-related 3 strict scrutiny. id. at 720. recognizing the state’s establishment clause interest underlying the 11 restrictions on the conduct of government relating exclusively to religious activities, in many 12 not making its own determination had not in every instance been properly carried out. bronx service  or  a  buddhist  meditation  service,  so  long  as  it  is  not  following  a  religion  clauses  and  the  free  speech  clause  of  the  first  amendment,  the  17 the governmental authority would, to a significant extent, be directing, shaping and controlling moreover,  i  believed  that  the  “majority’s  attempt  to  differentiate  between  the  14 applicant has stated an intention to conduct religious worship services. it does not consider 4 of educ. of city of new york, 876 f. supp. 2d 419 (s.d.n.y. 2012). 8 b) locke v. davey. 2 would not violate the establishment clause. facilitates the church’s religious mandate to worship as an entire congregation.”   1 religion].”). in the district court’s view, because bronx household and its congregants have a 5 a misunderstanding of the supreme court’s opinion. while there are indeed words in the lukumi 21 does not affect religions that do not. reg. i.q. treats all religions in the same fashion. it leaves all however, is not reasonable because supreme court precedent has foreclosed the  on the second clause. judge calabresi notes that if worship that is not religious does exist, so 20 its conclusion that the rule constituted an unconstitutional viewpoint discrimination against 2 supp. 2d 44 (s.d.n.y. 2012), and went on to grant summary judgment in favor of bronx 9 explain our disposition of this appeal. see bronx household of faith v. bd. of educ. of city of 2 religious worship services or wishes to favor religions that do not practice religious worship 11 accurate to the best of my knowledge,” and that “the activities to be conducted . . . do not include 30 singing  hymns,  religious  instruction,  expression  of  religious  devotion,  or  the  public  on  neutral  terms.    i  would  thus  hold  that  reg.  i.q.  violates  the  free  15 indicated that the activities to be conducted included “prayer” and “bible study” was told by a 4 not do. the “religious worship services” prohibition bars all conduct of religious worship that, as the dissent may be taken to suggest, dissenting op. at 5, the first clause discriminates 2 court’s grant of summary judgment permanently enjoining defendants from enforcing religious  worship  services  in  such  a  setting  when  every  other  activity  is  requirement of a religious worship service. far from specifying that an ordained officiant is an 10 6 finance a subject’s exercise of religion. and to the extent any such suggestion has been raised in can engage in intentional discrimination for the asserted purpose of avoiding or remedying an 2 explanation of the apparent discrepancy or deny the application pursuant to § ii.l of reg. d-180. 20 scrutiny. but see note 4; bronx household iii, 492 f.3d at 92-106 (calabresi, j. concurring); expressed  during  the  event  is  futile  because  the  conduct  of  ‘services’  is  the  1 university of virginia, 515 u.s. 819 (1995), reg. i.q. is viewpoint discriminatory  2 jane l. gordon (edward f.x. hart, jon pines, lisa grumet, janice casey 13 acknowledged its intention to conduct religious worship services in the school facilities. its 5 hosanna-tabor, moreover, does not merely fail to support bronx household’s claim of permitted  strikes  at  the  clause’s  core.    “indeed,  it  was  historical  instances  of  11 reasonableness of the board’s concern that offering school facilities for the subsidized conduct of meeting  rooms  for  sectarian  activities,  accompanied  by  some  devotional  13 government from interfering with free exercise of religion. the establishment clause prohibits 10 “ada”), 42 u.s.c. § 12101 et seq. (1990). id. at 701. the supreme court ruled in favor of the speech, is allowed.  accordingly, . . . i would hold that the board has failed to  12 of a subsidized place to hold religious worship services. 12-2730 9 worship services, or otherwise using a school as a house of worship.”4 3 be whether the board would make its subsidized school facilities available to the applicant. the 12-2730       4 the district court believed that under authority of the supreme court’s ruling in church 7 non-frivolous claim that the board is creating a public perception of endorsement of religion. id. 19 service. according to the board’s policy, it is only when an applicant itself characterizes its 14 37-38. the rule prohibiting religious worship services therefore did not exclude expression of a 3 motivated by hostility to religion. id. at 46. nor would a reasonable observer perceive the rule as 13 bronx household, 876 f. supp. 2d at 442 (citation, brackets and internal quotation marks compelling governmental interest.  bronx household iv, 650 f.3d at 59 (walker, j.,  20 authority, as well as clear second circuit authority. establishment  clause  because  such  a  policy  would  “neither  promote[]  nor  7 in the present case, even if the board were making its own determination whether an 30 training  of  religious  clergy,  here  we  are  dealing  with  discriminating  against  id. at 37.  indeed, reg i.q. ”prohibits use of school facilities to conduct worship  that a government decision not to subsidize a religious activity is not deemed to constitute a show a substantial burden from “non‐neutral government actions would make  bronx household v. board of education 4 for the foregoing reasons, the judgment of the district court is reversed, and the 9 whether an applicant’s proposed activities constitute a religious worship service, but rather to 12-2730 would affirm the district court’s permanent injunction.   14 claim against a church by a minister asserting a right to employment, the consequence would be 15 on remand to the district court after we vacated the injunction, bronx household again does not treat nonreligious worship more favorably than religious worship. see bronx household 16 theology were not eligible to receive the scholarship grants. id. at 716. this restriction was 3 policy, which had been promulgated in light of establishment clause concerns. the policy 14 in this case. we see no meaningful distinctions between the cases. our record reveals no animus 4  alternatively, the same sensible result could be reached through two other routes of8 8 of the issues we there discussed are pertinent to the present appeal.) noting the “important 28 deborah j. dewart, swansboro, nc; michael w. mcconnell, stanford, ca; eric 2 religion. we have considered bronx household’s other arguments and find no merit in them.19 20 21 district court and reverse its judgment. bronx household v. board of education 7 constitutes a “religious worship service.” 11 leval, circuit judge: 9 violate free exercise clause); skoros v. city of new york, 437 f.3d 1, 39 (2d cir. 2006) (“just as 4 materials, the board does not make its own assessment whether the described activities constitute 3 reg. i.q. is constitutional in light of the board’s reasonable concern to observe interests favored vocation’ designating her a commissioned minister.” 132 s.ct. at 699-700. action constitutional, but it bears on whether the city’s position is a reasonable  18 deviated from the board’s policy cannot justify the district court’s conclusion that reg. i.q. reg. i.q. authorizes denial of a permit sought either for (1) “the purpose of holding4 bronx household v. board of education 7 religious practice, the prohibition would have been upheld, notwithstanding that it would have 12‐2730  17 application at the applicant’s website and other public materials. if the applicant states on its reference.  it has never been disputed that the department of education’s policies  6 denial of funding for vocational religious instruction alone is inherently constitutionally suspect.” 12-2730 20 discrimination nor constitutionally suspect. to the contrary, it is inevitable. i dissented and now incorporate that dissenting opinion into this one by  5 ecclesiastical decisions. 17 and policies designed to keep a governmental entity in conformity with its obligations under the information on the permit application or the failure to conform to any of the guidelines and/or 9 19 (“[a]corrding to milford, its restriction was required to avoid violating the establishment equal terms is hardly the financing of that entity.  however, shutting the door to  6 applicant’s compliance with ch. reg. d–180, the same cannot be said of 5  22 its beliefs. by imposing an unwanted minister, the state infringes the free moreover,  contrary  to  the  majority’s  contention,  bronx  household  is  10 views, sing hymns, say prayers, and do all things that must be permitted under the rule of good 8 at 42. 9 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 11 church, holding that, because the plaintiff was employed by the church as a minister, she had no services,  but  does  not  exclude  religious  groups  from  using  schools  for  prayer,  action.”). 9 particular religion or religious practice). on the other hand, it makes no sense when the the district court concluded for a number of reasons that the enforcement of reg. i.q. to7 proposed activities would occur only when the board deemed activities that the applicant did not 3 board’s subsidized facilities, reg. i.q. treats them all similarly as to what they may do and may nor was the district court correct in its view that reg. i.q. discriminates against7 education to show a compelling justification for its viewpoint discrimination.    limitations contained in this regulation, as well as any other applicable laws and regulations 21 had in fact motivated the legislators. id. at 534 (“[s]uppression of the central element of the analytical formulas is used, the validity of reg. i.q. would be sustained against bronx 18 funds to support the practice of religion cited by the court in locke. as in locke, the board’s definition, the denial would only prohibit use for activities that the applicant did not consider to bronx household v. board of education 12 expose it to non-frivolous establishment clause challenges.” id. at 477. we recognized that 22 addition to the application does not represent a deviation from the policy of using only an 13 in hosanna-tabor was that, unless the employment discrimination laws are read not to apply to a 17 district court permanently enjoined the board from enforcing the rule. bronx household iv, 650 20 consistent with its constitutional duties. we therefore vacate the injunction imposed by the see supra pp. 10, 12. therefore, locke is not distinguishable on this ground. 12‐2730  3 furthermore, the supreme court in locke expressly rejected the district court’s rule. as my  view  that  strict  scrutiny  applied)  for  reg.  i.q.’s  disallowance  of  religious  20 religion. u.s. const. amend. i (“congress shall make no law . . . prohibiting the free exercise [of 3 brooklyn council of churches, queens federation of churches, american baptist bronx household v. board of education 32 york, ny; kimberlee wood colby, center for law & religious freedom of the 12-2730 16 we cannot accept the district court’s rule for two reasons. first, this rule would unfairly conduct.  by disallowing “religious worship services” as the majority has defined  bronx household v. board of education household’s lukumi-based challenge. 27 curiae the new york city council black, latino, and asian caucus. 6 as in bronx household iv, we do not reach the question whether the board would violate 10 that where motivated by establishment clause concerns, a governmental decision to exclude as the district court found, “the unopposed testimony is that p.s. 15 is the  bronx household v. board of education   18 infringe the right . . . . the reasoning of these decisions is simple: although government may not 22 by amicus curiae the new york city council black, latino, and asian caucus, in  clause.” bronx household iv, 650 f.3d. at 43. demonstrate that granting bronx household sunday access to p.s. 15 for worship  19 just because the exclusion may affect one religion that practices the excluded conduct while not unintentional disparate impact, the employer must have a strong basis in evidence to believe it 21 targeted religious practice. the board has no such motivation. there is not a scintilla of evidence 16 martial arts contests, so long as the board’s restriction applies to secular usage as well as 16 board representative that “bible study would be ok, but not prayer meetings.” the fact that there 12‐2730  commack self-service kosher meats, inc. v. weiss, 294 f.3d 415 (2d cir. 2002), where we held 13 examination of . . . particular conduct to determine if it is properly deemed to be religious and if bronx household v. board of education   6 necessary distinctions. we concluded that “the mere act of inspection of religious conduct” did bronx household v. board of education 18 clause. “[i]t is a basic tenet of first amendment law that disparate impact does not, in itself, 10 point of view, and excluding the expression of that point of view,” we observed that, unlike the 18 exclusively to the santeria ritual of animal sacrifice. id. at 535 (“[a]lmost the only conduct 3 i.q. focuses on a religious activity that has no secular analog. there is no such thing as a 11 household, 855 f. supp. 2d at 60-61. in particular, the district court pointed to “new facts 1 the district court found that enforcement of reg. i.q. to exclude religious worship 21 defendants, the board of education of the city of new york and community school 3 church’s designation. the court did not do so. it undertook to make its own determination cannot in a selective manner impose burdens only on conduct motivated by religious belief,” 508 bronx household v. board of education 13 “when government endeavors to police itself and its employees in an effort to avoid transgressing i.q.”)  prohibits  the  use  of  school  facilities  outside  of  school  hours  by  outside  11 of educ. of city of new york, 492 f.3d 89 (2d cir. 2007) (“bronx household iii”); bronx 7 instruction, perich performed an important role in transmitting the lutheran faith to the next religious  groups  to  use  school  facilities  for  religious  purposes  pursuant  to  a  12 latham, ny, for amicus curiae new york state school boards association, inc. 16 affects religion that the restrictive force of the religion clauses is operative. accordingly, rules only with a government subsidy.” dissenting op. 7. however, reg. i.q. also concerns a 14 the ordinances in lukumi were intended to, and did, suppress a religious ritual of a particular 4 on days during which school facilities are less available for such use. id. at 43. all of this, which 7  8 precisely what the district court found a governmental entity prohibited from doing. 12-2730 12 subsidies was not subject to strict scrutiny under lukumi because the exclusion was enacted in 2 permits the board to inspect an applicant’s website and other public materials. the court 1 3) if the board has a reasonable, good faith concern that making its school facilities 7 clear when the words are considered in context that they mean no such thing. 12 violation of free exercise, nor even subject to strict scrutiny under lukumi. in locke v. davey,6 23 southern district of new york (preska, c.j.), permanently enjoining defendants from enforcing conduct  of  religious  worship  services.”    maj.  op.  at  24.    the  board’s  belief,  bronx household v. board of education 12‐2730  expression of that point of view.”  id. at 37.  the majority held that reg. i.q. is a  the last time this case was before this panel, i explained that in my view,  15 others do not engage in that activity. 12 any of the prohibited uses described . . . in chancellor’s regulation d-180.” app. 996. the15 18 religion clauses must of necessity focus on religious subject matter. if the focus is not religious, conduct  because  it  is  undertaken  for  religious  reasons.”    id.    in  my  view,  the  19 compels excessive entanglement and is therefore unconstitutional. 8 would put the board in violation of one of the two religion clauses. if the board declines to host 428.    in my view, forcing  bronx  household  to  relocate  or  suspend its  services  7 contradicts the argument. this is because in hosanna-tabor the supreme court itself did 12 decision in bronx household iv, which we now reaffirm without need to repeat them, we 1 the board and co-defendant community school district no. 10 appeal from the district entanglement  with  religion,  in  violation  of  the  establishment  clause.”    bronx  5 3 discriminatory disapproval of that religious practice, and that the city’s claim that the ordinances 2 authority, would have been compelled (so as to avoid excessive entanglement) to accept the permit application based on the board’s rejection of the applicant’s own characterization of the 2 available for the conduct of religious worship services would give rise to a substantial 7 would constitute an excessive entanglement with religion, which violates the establishment 12 limits on the conduct of all governmental entities. the free exercise clause prohibits 12-2730 12  7 household iv, 650 f.3d at 51. (we incorporate that opinion into this one by reference as several 5 motivated by disapproval of a religious practice and represented an attempt suppress it, and 12-2730 7 so, recognized that even though the policy might have permitted a crèche to be displayed without   6 can either make its facilities available for worship services, or decline to do so. if the rule were as sufficiently  burdened  by  reg.  i.q.  to  require  that  strict  scrutiny  apply.    the  “while the [board] imposes no excess charge (profit or overhead) on extended use of its3 4 proposition that it would be improper for the board to make such a determination. 8 whether an applicant’s proposed activities constituted a religious worship service. id. at 46-48. in additional  six  districts  permit  religious  worship  services  under  certain  22 religious worship services, is minor from a constitutional point of view. conduct  of  an  event,  here  labeled  ‘services,’  and  the  protected  viewpoints  ii. reg. i.q. fails strict scrutiny   11 committed years of violations of the free exercise clause rights of rejected permit applicants. on 7 the establishment clause by allowing the subsidized use of the school facilities for religious 14 prohibition was motivated by secular objectives including public health and prevention of cruelty 18 by requiring them “to make their own bureaucratic determinations as to what constitutes otherwise conveying a message of endorsement.”  id. at 64.  my position on this  6 opinion, which, if taken out of context, could be read as expressing such a message, it becomes 18 not be used to pursue the degree in pastoral ministries he sought. id. at 717. davey brought suit 14 government from engaging in conduct that would constitute an establishment of religion, such as 9 exclusion of such funding places a relatively minor burden on [students eligible for scholarship 7 the applicant’s own characterization as to whether the applicant will conduct religious worship makes here, to reject the aspect of the court’s decision that refused to regard the church’s 1 christian legal society, springfield, va, for amici curiae council of churches 20 decision. such action interferes with the internal governance of the church, 18 practices. the board is not compelled to permit a practice it has a justifiable reason for excluding 1 we also rejected bronx household’s claim that the rule violated the establishment we similarly reject bronx household’s claim that reg. i.q. causes excessive19 viewpoint.    bronx  household  iv,  650  f.3d  at  54‐59  (walker,  j.,  dissenting).   2 proposed activities constitute worship services, the district court’s interpretation of hosanna- 19 claims that reg. i.q. violated the free exercise clause. the district court again granted a 17 have been instances, none involving bronx household, in which board personnel improperly 8 establishment] interest in not funding the pursuit of devotional degrees is substantial and the 1 united states court of appeals bronx household v. board of education 25 defamation league, new york, ny, for amicus curiae anti-defamation league. 3 were incompatible with those goals because they widely permitted animal sacrifice outside the 19 facilities in which to conduct them. 35 4 churches of metropolitan new york, synod of new york, reformed church in 10 suing the church that employs her under the ada did not resolve the case. the question violates  the  free  exercise  clause  because  it  plainly  discriminates  against  bans worship services but not worship in any of its manifestations is thus not  bronx household v. board of education 12‐2730  8 20 supreme court to be constitutionally mandated – do not represent invidious discrimination 16 beth haroules, arthur eisenberg, donna lieberman, new york civil liberties 3 principal day for worship services, while jews and muslims, for example, hold worship services 12 justified as an effort to comply with the establishment clause, necessarily defeats a claim of 22 clause.”). 5 misunderstood lukumi in construing it to mean that a rule declining to subsidize religious 26 holding religious worship services. the court of appeals (leval, j.) rejects the district court’s 4 applicant would remain free to shape its religious worship services in any way it chose.16 household opinions and set forth in this opinion. 1 alleging, among other claims, that the state’s refusal to allow use of its scholarship funds for the 23 bruce h. schneider, christopher p. hemphill, strook & stroock & lavan llp, 21 the conduct to determine whether it is in fact religious and, if so, whether the conduct is of such 2 12 (2001), in which the supreme court found that a school’s refusal to permit a christian 12 persecute or oppress a religion or its practices. the laws here in question were enacted contrary 16 “overlook[ed] the nature of the duties placed on government officials by the establishment 12-2730 that  reg.  i.q.  is  not  neutral.    see  lukumi,  508  u.s.  at  533.    moreover,  it  is  not  15 provided by statute and by provision of its constitution that students pursuing a degree in interpretation. first, the lukumi “principle” that “government, in pursuit of legitimate interests, 1 to illustrate, we consider a number of rules that might be adopted with the purpose of a  law  that  is  not  “neutral  and  of  general  applicability”  and  that  affects  8 exclusion of devotional theology degree programs from eligibility for state scholarships does not moreover, as the majority in bronx household iv made clear:   government  discriminates  against  religious  conduct.”);  brown  v.  borough  of  5 star and crescent but did not permit a crèche to be displayed as a symbol of christmas. id. at 5-6. 7 docket no. 12-2730-cv 31 19 subsidize it is necessarily a suspect discrimination against religion to be assessed under strict bronx household v. board of education 7 we assume familiarity with the facts and procedural history of this long-running 16 exclusion was constitutionally permissible in light of the board’s reasonable and good faith governing the use of school buildings and grounds, may lead to the revocation of the permit, the 9 18 decision by the board not to subsidize religious worship services by providing rent-free school 2 favored by the establishment clause a governmental entity gets a free pass, avoiding all scrutiny. 13 worship services would create a substantial risk of liability under the establishment clause. 8 burdened the santeria religion without similarly burdening other religions that do not practice 15 they might have wanted, while religions that do conduct religious worship services, such as fact that the church deemed her a minister. id. at 711 (thomas, j., concurring) (“hosanna-tabor 9  bronx household v. board of education 12 beyond not only their facts but their reasoning. in lukumi, the city of 6 (argued: november 19, 2012 decided: april 3, 2014) 9 for reinstatement, alleging that her dismissal violated the americans with disabilities act (the 7 constitutionally suspect and subject to strict scrutiny. bronx household v. board of education         21 [as] both church congregants and members of the public identify the churches with the schools.” 5 we explained in greater detail in our earlier opinion, supports a reasonable concern on the part of   applicable here, however, because it dealt only with a government subsidy.  the  13 540 u.s. 712 (2004), the state of washington had established a scholarship program to assist 4 attempt to comply with constitutional responsibilities, can in some circumstances represent a 17 it does not follow, however, that such a disparate impact violates the free exercise 16 handedly to religious and secular conduct alike, a plethora of exceptions and exclusions 5 yet we have long said that there is room for play in the joints between them. in other words, 11 would in fact violate the establishment clause. but the court expressed the view that, unless the 3  5 governs the “extended use” of school facilities (the term refers to the use of school facilities 11 as washington’s exclusion of students of theology from eligibility for the state’s 8 although it is uncontradicted that the board’s policy is not to make its own determination bronx household v. board of education bronx household v. board of education 20 discrimination among religions because it affects religions that conduct worship services and at 56 (walker, j., dissenting).  15 that a governmental authority – a judge, or a jury, or an administrative agency – would dictate to 29 made a “reasonable, good faith judgment that it runs a risk of a non‐frivolous  theology while receiving the scholarship.  540 u.s. 712, 716 (2004).  locke is not  2 in the operation of the scholarship program, and finding substantial evidence indicating a 5 10 legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by 12-2730 9 that title, her own use of that title, and the important religious functions she performed for the 13 yet, there are crucial differences between the facts in lukumi and those in the present case. first, 6 of religious practices, could lawfully exclude students seeking degrees in theology from 8 worship services because we believe it is unnecessary to do so. the district court acknowledged 16 gather as a full congregation [for sunday worship services] without having to curtail other of 17 laws. the court explained, conduct of an event or activity that includes expression of a point of view,” not “the  of amicus curiae the new york city council black, latino, and asian caucus at  17 the district court believed that, under the lukumi precedent, because the conduct of bronx household v. board of education 18 foundation, washington, d.c., for amici curiae new york civil liberties union id.  the burden on bronx household is made crystal clear “given the uniquely  bronx household v. board of education support  of  appellees.    of  the  fifty  largest  school  districts  in  the  united  states,  6 background 32 this  case  presents  substantial  questions  involving  the  contours  of  both  reg. d-180 § i.s. provides that “[p]ermits may be granted to religious clubs for students2 2 worship services. its sole reason for excluding religious worship services from its facilities is the 11 jay worona, pilar sokol, new york state school boards association, inc., 11 specified religious causes from eligibility to receive state educational subsidies is neither a 20 employee conduct that, if occurring, would violate the establishment clause and must tolerate all 7 11 the school authorities could reasonably be concerned that communications of this sort would 8 religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a dissenting).    i  further  explained  that  the  government’s  interest  in  avoiding  an  because  reg.  i.q.  was  viewpoint  discriminatory,  it  must  be  justified  by  a  8 addressing davey’s claim that the prohibition was presumptively unconstitutional and subject to 16 discrimination in employment, the congress might pass a statute amending the federal laws that 3 conclusion 2 complying with the religion clauses. one such rule might state, “this city shall not adopt any bronx household v. board of education 3 rosenberger,  the  supreme  court  stated  that  “‘[i]t  does  not  violate  the  11 district court’s view that reg. i.q. is subject to strict scrutiny is based on a misunderstanding of   12 the other hand, if the board offers its facilities for subsidized religious worship services, and the 15 city’s schools are “the only location in which [bronx household’s congregation] can afford to 3 constitute a religious worship service. and, in any event, hosanna-tabor does not support the school  district,  508  u.s.  384  (1993),  and  rosenberger  v.  rector  and  visitors  of  the        9 in view of (1) the absence of discriminatory animus on the part of the board against 7 not constitute excessive entanglement, observing that to prohibit such inspection “would religious  speakers  who  participate  in  broad‐reaching  government  programs  17 union foundation, new york, ny; daniel mach, american civil liberties union 29 judge walker dissents by separate opinion. 15 permits to those seeking to use school facilities for the killing of animals, or for boxing, or other 18 authority for this proposition, and we know none. it  is  further  undisputed  that  “no  other  location  besides  p.s.  15  currently  1 establishment interests decline to subsidize religious worship services, even if subsidizing them 3 explained, 12-2730 concluding that reg. i.q. is neither neutral nor generally applicable in its  6 desist from using any references to religion in the delivery of [his] instructional program unless it 1 nature that allowing it to take place on public property would constitute a prohibited omitted).   11 rule imposed by the school in good news club, the board’s rule barring the conduct of religious 1 plaintiff as a minister would have ended the matter; the supreme court, a governmental 24 new york, ny; steven m. freeman, david l. barkey, seth m. marnin, anti- 3 the rule of lukumi would fail to pass the test of lukumi, and a statute stating the rule of 21 activity. unlike hosanna-tabor, where a government authority would be requiring a church to 5 washington, acting pursuant to constitutional and historical concerns about government funding 4 deciding what are religious worship services. 14 religions free to practice religion without interference as they choose, (b) treats all users, whether opinion we limit our consideration to the first clause. because we conclude that the denial of use  of  the  facility  by  a  person  or  group  of  persons  for  “worship.”   7 the district court proposed, a wrong guess as to what the supreme court will eventually hold charge of violation of the establishment clause by hosting and subsidizing the  12-2730 2 17 wrong, it would have committed extensive violations of one of the religion clauses. such a rule 1 because i believe that reg. i.q. violates the free exercise clause, i would  2 exercise clause challenge to new york city department of education’s school holiday display 12‐2730  8 litigation, as set forth in our prior opinions, and we recount them here only as necessary to what is prohibited by this clause is solely the conduct of a particular  12-2730 34 15 minimum, the protections of the free exercise clause pertain if the law at issue  household of faith v. bd. of educ. of n.y., 876 f. supp. 2d 419, 427 (s.d.n.y. 2012).   18 endorsement in violation of the establishment clause, thus exposing the board to a substantial religion,  typically  but  not  necessarily  conducted  by  an  ordained  19 the political affairs of the community. and it does not require “religious worship services,” a term that by definition has no secular meaning  18 an applicant’s own characterization of whether its activities constitute a religious worship 9 support the conclusion that the establishment clause prohibits a governmental entity from 10 rely exclusively on the applicant’s own characterization, the district court nonetheless concluded 4 corporation counsel of the city of new york, new york, ny, for appellants. 13 the interest of establishment concerns, we can see no reason why the rule should be any different 10 required by the constitution.” id. at 34-35. 6 of the establishment clause. id. at 45-46. finally, we rejected bronx household’s claim that the 4 were motivated by public health and other neutral concerns was false. it is the clear implication 2 sundays results in an unintended bias in favor christian religions, which prescribe sunday as the       neutral basis to a wide spectrum of student groups, including groups that use  10 like, “under no circumstances will this city pass any ordinance prohibiting any practice this finding on our earlier observation in bronx household iv that “[r]eligious worship services 19 between the establishment clause and the free exercise clause that they may forbid only 15 determine which individuals will minister to the faithful on behalf of a church, there is an 11 however; to do otherwise would extend the lukumi line of cases well 9 the conclusion that there is an implicit ministerial exception that bars a minister from 5 compels government officials to undertake such inspection in order to draw constitutionally 8 applicant’s proposed conduct constitutes a religious worship service, hosanna-tabor would not 17 imposes neither criminal nor civil sanctions on any type of religious 12 lukumi. secondly, on facts very similar to these, the supreme court has rejected applicability of 4 an ‘established’ religion,” id. at 722-25, the court concluded that, “[g]iven the historic and 7 constitutionally suspect in view of the fact that they are constitutionally mandated. going further, 1 no extant decision by the supreme court permits the board to predict with confidence 3 afford to pay for a large enough site to accommodate the entire congregation, the free exercise 3 11  5 the district court ruled that the board’s very act of determining whether a proposed use inapplicable.”    id.  at  720  n.3.    as  discussed,  reg.  i.q.  plainly  creates  a  limited  19 second, the district court’s rule contradicts the most nearly comparable supreme court 18 that would constitute an establishment of religion. in many circumstances, especially when compelling governmental interest  10 funds].” id. iii, 492 f.3d at 92-106 (calabresi, j., concurring); bronx household iv, 650 f.3d at 51-52 6 establishment clause violation due to excessive entanglement by the board; it actively religious persecution and intolerance that gave concern to those who drafted the  neutral  policy  creating  a  limited  public  forum  would  not  violate  the  7 conference of seventh-day adventists, national association of evangelicals, 21 employee conduct that, if prohibited as to non-employees, would violate the free exercise 10 regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in 1 the establishment clause by hosting and subsidizing the conduct of religious worship services, to 13 eulitt ex. rel. eulitt v. maine dep’t of educ., 386 f.3d 344, 354 (1st cir. 2004) (“the fact that the u.s. at 543 (emphasis added), might be deemed inapplicable to the present case on the ground 12-2730 4 while this approach of looking beyond the four corners of the extended use services when the use is outside of normal school hours.” reg. d-180 § iv.a. users may also 5 school facilities are most available for such use). essentially two choices are open to the board. it 9 use the facilities to teach religion, read from and discuss the bible, advocate their religious 7 use of school facilities. they may use the facilities for the same purposes and in the same manner 17 different manifestation of the same historical and constitutional aversion to the use of public 29 c. rassbach, luke w. goodrich, the becket fund for religious liberty, bronx household v. board of education bronx household v. board of education 13 the practice as a religious ceremony.” or, in recognition of the supreme court’s recent ruling in petty  harassment  of  religious  institutions  and  exercise  immune  from  the  10 exclusion of religious worship services if allowing the conduct of religious worship services consider a religious worship service to be a religious worship service. in that circumstance, by 5 school or teacher shall compel any student to participate in religious exercises, or seek to religion “must be justified by a compelling governmental interest and must be  2 study of theology was, under the rule of lukumi, presumptively unconstitutional and subject to 14 in july 2007, the board adopted reg. i.q. (then designated standard operating procedure 8 rights of the plaintiff who was ineligible for grant funds because he was pursuing a degree in       17 religious, and was not motivated by discriminatory disapproval of any particular religion’s 15 § 5.11). on november 2, 2007, in litigation resulting from the board’s denial of bronx 4 pertinence. but, even if the board were making its own determinations, hosanna-tabor would 5 difference is of crucial importance in determining the reach of lukumi’s reasoning that a 6 of the school facilities is a religious worship service (and therefore is prohibited by reg. i.q.) compelling because it does not violate the establishment clause to allow bronx  22 distinct category of instruction. 2 faith and mission through its appointments. according the state the power to one.    it  is  striking  that  none  of  these  other  school  districts  appear  to  have  the  19 20 religion is substantial, and the burden, if it can properly be called a burden, that falls on bronx bronx household v. board of education   4 meaningful risk of violating the establishment clause by appearing to endorse religion. this 19 scrutiny. 16 household’s application for a permit to use school facilities for “christian worship services,” the 7 id. at 725. accordingly, davey’s free exercise clause claim failed because “[t]he state’s [anti- 5 not prohibit such a policy. the supreme court’s ruling rather supports the opposite conclusion. clause even justifies, much less requires, a refusal to extend free speech rights to  1 having acknowledged that intention in its application, the board may either request an government subsidy: the department of education charges the same rate to all  10 when this case was before us in bronx household iv, bronx household presented us generally performed by an officient of the church or religion.” 650 f.3d at 41 (emphasis added). 14 16 speculate with little guidance which way the supreme court will eventually go, and if it guesses 10 importunate demands and must ensure that the sole reasons for imposing the burdens of law and 8 exclude religious worship services would violate the free exercise clause and the establishment 12-2730 19 constitute viewpoint discrimination.” christian legal soc. chapter of the univ. of california, 9 13 (1971). we disagree for a number of reasons. 2 facilities. furthermore, to the extent that different religions choose to avail themselves of the 5 household of faith v. bd. of educ. of city of new york, 400 f. supp. 2d 581 (s.d.n.y. 2005). 14 so whether allowing it would constitute a prohibited establishment of religion.” id. at 47. resolution  of  which  are  ripe  for  supreme  court  review.    in  the  meantime,  11 religious belief,” id. at 543 (emphasis added), thus justifying strict scrutiny. it characterized this bronx household v. board of education   in his dissent, judge walker advances many of the same arguments he advanced in20 8 lawrenceville, ga; david j. hacker, heather gebelin hacker, alliance impermissible aid to religion; rather, it simply would provide a neutral forum for  21 government benefit. the state has merely chosen not to fund a bronx household v. board of education   19 risk of liability. id. at 43.5 21 depriving the church of control over the selection of those who will personify 18 for the after‐hours use of public school spaces created a limited public forum.  id.  board  of  education’s  policy  that  disallows  “religious  worship  services”  after  central  school,  533  u.s.  98  (2001),  lamb’s  chapel  v.  center  moriches  union  free  8 services. under reg. d-180, every extended use applicant must submit an application for a 12 claim against the church under the employment discrimination laws. id. at 707-10. the court 5 that his first amendment rights were violated by a school board directive that he “cease and 19 place obstacles in the path of a person’s exercise of . . . freedom of speech, it need not remove 2 findings that the board makes its own determination whether an applicant’s proposed activities bronx household’s application for a permit under this clause is constitutional, we have no need 28 first amendment. reversed. 6 on appeal, we reversed the district court’s judgment and vacated the injunction. bronx 19 2007 wl 7946842, at *1 (s.d.n.y. nov. 2, 2007). the district court’s ruling was predicated on 16 7 eligibility for state scholarship grants. in ruling that the exclusion did not violate the free exercise 454 u.s. 263, 274‐75 (1981)); see also good news club, 533 u.s. at 112‐19.  the city’s  19 the religion clauses have no application. such focus on religion is neither an invidious “religions that fit the ‘the ordained’ model.” bronx household, 876 f. supp. 2d at 431. there is exercise of appellant’s religion.”  sherbert v. verner, 374 u.s. 398, 403 (1963).  we  u.s.  520,  532  (1993)  (internal  quotation  marks  omitted).    to  this  end,  “[a]t  a  20 the legislative history revealed that disapproval of animal sacrifice as a santeria religious ritual 6 the board that hosting and subsidizing the conduct of religious worship services might support a 1 bronx household iv, 650 f.3d at 51-52 (calabresi, j., concurring). it is correct without question religiously  affiliated  institutions  but  disallows  students  to  pursue  a  degree  in  “burden” on that activity, within the meaning of lukumi. or, the “strict scrutiny” test may apply, community use policies been found to violate the clause.    12-2730 18 does not violate plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict point need not be repeated in full.  it is as true now as it was then: the board’s  11 santeria’s practice of animal sacrifice and, with a goal of banning the practice, the council passed   type of event: a collective activity characteristically done according  1 2) the supreme court’s ruling in lukumi that invidiously discriminatory ordinances 12 household of faith v. bd. of educ. of city of new york, 331 f.3d 342 (2d cir. 2003); bronx 14 academically gifted students in post-secondary education. 540 u.s. at 715. the state, however, 1 nothing in this record remotely supports a finding that the board disapproves of 18 board to allow outside users to conduct religious worship services in the school facilities and 5 we conclude that lukumi’s invocation of strict scrutiny has no application to these facts, the free exercise clause bars government from “prohibiting the free exercise” of19 4 we explained above, in locke the court was ruling on the question whether the state of forum  for  speech,”  and  thus  “cases  dealing  with  speech  forums  are  simply  11 10 religion, or against religions that conduct worship services; (2) the bona fides and the 4 an expression of such hostility in light of the range of religious activity the rule permitted and in prescribed order or led by an ordained official.  see bronx household iv, 650 f.3d  10 society. 14 board of education of the city of new york and community school 13 to these constitutional principles, and they are void.”). 15 her child does not mean that the state must fund that choice . . . .”); see also regan v. taxation 10 we reject his claim of presumptive unconstitutionality, 12 have in other circumstances, it could have no application here because bronx household 12 10 new york, 650 f.3d 30 (2d cir. 2011) (“bronx household iv”); bronx household of faith v. bd. by outside organizations.” 17 contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not because it disallows expression solely because the expression is from a religious  bronx household v. board of education 2 decline to do so.9 33   1 12 undisputed that, according to the church’s classification, the plaintiff served in the role of a 3 household, permanently enjoining the enforcement of reg. i.q. bronx household of faith v. bd. the opportunity to conduct what it deemed to be a religious worship service. the denial of a 21 the bar of the city of new york, new york, ny, for amicus curiae the bronx household v. board of education   8 that they violated the plaintiffs’ free exercise rights. id. at 547. 14 establishment clause limits, it must be accorded some leeway, even though the conduct it 18 religion clause or the other if it wrongly guessed the establishment clause’s exact contours. 13 the district court found that the enforcement of reg. i.q. to exclude religious worship ‘only  location  in  which  [bronx  household]  can  afford  to  gather  as  a  full  bronx household v. board of education   8 a reformed hialeah, chastened by the supreme court’s ruling in lukumi, might adopt a new will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory 17 belief that permitting religious worship services in its schools might give rise to an appearance of 12 principle as “essential to the protection of the rights guaranteed by the free exercise clause.” id. protected expressive activity.”  id. at 56.  i thus would have required the board of  5 a religious worship service but limits its inquiry to the applicant’s own characterization. the 12‐2730  sufficiently burdens the free exercise of religion to require strict scrutiny.    12-2730 16 washington was free in service of establishment interests to exclude theology students from 8 ethics & religious liberty commission of the southern baptist convention, 1 santeria worship service was the object of the ordinances.”). furthermore, although the 12 worship services. while reg. i.q. thus treats these two classes of religions equally, its impact on 1 because the board does not make its own determinations whether an applicant’s 13 religion, sing hymns, recite prayers, and express or advocate their religious point of view. id. at 11 remained whether the plaintiff was a minister and thus subject to the ministerial exception. it was 4 services (virtually all of which would be christian services held on sundays, as that is when the supreme  court  has  repeatedly  “rejected  the  position  that  the  establishment  11 for all the reasons outlined above and as well as those we discussed in our earlier 20 second, the hialeah ordinances were motivated by the city council’s disapproval of the 4 establishment clause, which prohibits government involvement in such 14 hosanna-tabor evangelical lutheran church & sch. v. e.e.o.c., 132 s. ct. 694 (2012), that problem,  reg.  i.q.  would  still  fail  strict  scrutiny  because  it  is  impermissibly  23 15 focus on religious practices in the interest of observing the concerns of the establishment clause. during this litigation, the board was renamed the new york city department of1 19 ‘worship,’” contravening hosanna-tabor’s prohibition of such government involvement in 17 materials (in addition to the application) was not a deviation from the board’s policy of accepting treatment of religion is an easy call: the department of education states that its  8 as the facilities are used by religions that do not conduct religious worship services. they may 8 provisions of the regulation. this is because it is the religious adherents alone 10 washington d.c., for appellees. 14 omitted). 9 and subsidize religious worship services, and the supreme court eventually rules that allowing 7 free exercise of religion.8   20 12-2730 conditions  use  of  school  facilities  on  whether  an  organization  is  engaging  in  slightest concern about violating the establishment clause, nor have any of their  5 vacate the injunction and reverse the district court’s judgment. 5 suspect discrimination of religion, which violates one or both of the religion clauses. a court 4 by the establishment clause and avoid the risk of liability under that clause. accordingly, we 16 above, the board’s policy providing that it may examine an applicant’s website and other public 20 those not of its own creation.” (internal quotation marks and brackets omitted)). 6 discussion   15 faith, by prohibiting its performance in the city. reg. i.q. does no such thing. it leaves all 13 of conduct that might be reasonably suspect under the establishment clause does not furnish laws defining “kosher” according to the dictates of orthodox judaism “excessively entangle 9 worship services. bronx household, 876 f. supp. 2d at 428-32. we respectfully disagree. in our religious exercise in a forum set aside for community‐based expression.    20 affecting other religions that do not. 144,  170  (3d  cir.  2002)  (“[t]here  is  no  substantial  burden  requirement  when  2 worship services. the only practical consequences that would turn on the board’s decision would 11 no person may require the government itself to behave in ways that the individual believes will 18 religious worship services is an activity that has no secular analog, a decision by the board not to


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