Facing Eviction, Religious Groups Ask Judge for Restraining Order While Challenging Worship Ban

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Religious groups that meet in public schools are asking a federal judge for a temporary restraining order — to let them continue worshiping there, while they mount another legal challenge to their eviction.  Last Sunday was the final day that churches were allowed to hold services in public schools.

It was a federal court ruling last year that paved the way for the city to oust the groups. The city cited concerns about blurring the lines between church and state. The 2nd Circuit Court of Appeals agreed, but on narrow grounds: the panel of judges ruled, 2-to-1, that religious groups can, indeed, meet for Bible study, prayer and singing, but that regular, formal “worship” services — where churches meet in schools every Sunday — are a step too far, and amount to an endorsement of religion by the city.

On Tuesday, the city argued that 2nd Circuit ruling is still in effect — especially since the U.S. Supreme Court in December declined to hear the churches’ appeal.

But Jordan Lorence, from the Alliance Defense Fund, which represents the churches, said the new appeal is on a different part of the First Amendment  — one that wasn't the focus of the earlier decisions.

“We think the churches and the other groups are entitled to remain meeting in the schools under the free exercise clause,” Lorence said, referring to the First Amendment passage, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

He said the earlier rejection was based on a free speech challenge, in which the judges agreed with the city that the need to avoid the appearance of endorsement trumped the right to unlimited free speech. Lorence’s new argument built on the earlier position but tried to make the point that a religious accommodation is not the same as an endorsement.

“When the pope has a mass in Central Park, and there’s a huge number of people, it doesn’t mean Roman Catholicism is the state religion of New York City,” Lorence said. “It means that this is a public space, and that in a free society, we allow people to use these public spaces for expressing their own viewpoints.”

The city said the Appeals Court had already considered and rejected arguments like this one — and that Lorence had no right to go back to the lower court seeking a stay.

“The 2nd Circuit struck an effective balance between the churches’ right to worship and the schools’ interest in not advancing a particular religion,” city lawyer Jonathan Pines told the judge.

Judge Loretta Preska said she probably could not rule on the restraining order this week and asked the two sides to try to come up with a temporary agreement by the end of Wednesday.

The city previously extended the eviction deadline to last Sunday, and has said there is no reason to give another extension.

The State Senate has passed a bill that could supersede the court proceedings, but Assembly Speaker Sheldon Silver has expressed concern about the Senate bill.

And Governor Andrew Cuomo has not taken a position on whether churches should be allowed to hold worship services in school.