On April 3rd, 2014, The United States Court of Appeals for the Second Circuit upheld (by overturning the judgment of a lower court) the decision of the New York City Board of Education to exclude groups (in this case, churches) from using school facilities outside of school hours “for the purpose of holding religious worship services.” The decision (PDF) follows a long legal battle. It is a defeat for churches that wanted to submit applications to use school buildings for church services and pay the schools accordingly. The decision did not pass unanimously. Judge Pierre N. Leval and Judge Guido Calabresi ruled in favor of the exclusion, and Judge John M. Walker Jr. ruled against it. The majority opinion endorses the following conclusion: “permitting religious worship services in its [the Board’s] schools might give rise to an appearance of endorsement in violation of the Establishment Clause, thus exposing the Board to a substantial risk of liability.”
In his dissenting opinion, Judge Walker states: “In my view, the Board of Education’s policy that disallows ‘religious worship services’ after hours in public schools—limited public fora that are otherwise open to all—violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.” In Walker’s judgment, “This case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review.” He cites Epperson v. Arkansas (1968), which states: “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” New York Mayor Bill de Blasio, a new hopeful candidate for the left wing of the U.S. Democratic Party, has expressed support for the religious groups and their paid use of the school buildings after fair application. Those churches that cannot afford their own buildings will be affected by this decision.
The recent decision brings a few important sentences to memory from the 1948 “Statement on Church and State.” It was published in the journal Christianity and Crisis. Twenty-seven professors and clergy members signed the statement, including Harry Emerson Fosdick and Reinhold Niebuhr. The signers declared that they favored “the separation of church and state in the sense which we believe to have been intended in the First Amendment. This prohibited the state from giving any church or religious body a favored position, and from controlling the religious institutions of the nation.” They held that “cooperation, entered into freely by the state and church and involving no special privilege to any church and no threat to the religious liberty of any citizen, should be permitted.”
The idea of the “appearance of endorsement,” as opposed to actual endorsement, is very complex. It requires significant hermeneutical deliberation to determine whether an action gives the “appearance of endorsement” or not. For example, do swearing on the Bible in court or the pastoral invocation at Presidential inauguration services give the “appearance of endorsement”? Do politicians going to church provide the “appearance of endorsement”? When school boards permit churches to do volunteer work at public school facilities, like helping with grounds-keeping and painting, are they effectively giving the “appearance of endorsement”? Of course, in none of these cases is there any actual endorsement, in the sense of a legal agreement on the part of the politicians or public institutions.
The desire to avoid an “appearance of endorsement” may spring from an idealized conception of society in which public institutions operate from the standpoint of a supposedly objective worldview. This does not reflect the reality of the everyday work of public institutions and political figures, who often give the “appearance of endorsement” by working with religious groups. The old tradition of American church-state policy is not built upon conceptions of an idealized society of worldview neutrality; it is rather concerned with rejecting a specific political order in which the state designates a religion for the country and thus establishes it with formal institutional backing. Free cooperation between religious communities and public institutions was a reality in the eighteenth century, as it is today.
Judge Leval and Calabresi’s decision could be interpreted as encouraging public institutions to free themselves from any “appearance of endorsement” in order to avoid the “substantial risk of liability.” Because of the vacuity of the term “appearance,” this would be a virtually impossible task. It also lacks a solid constitutional basis. Apart from these arguments, the decision has unfortunate practical consequences. At a time when American schools need more financial support and volunteers, the court has sent the wrong signal to the churches and to the members of religious communities who often provide money, time and volunteers to their communities. It diminishes the spirit of cooperation which is essential to American’s diverse civil society. This principle of cooperation was affirmed in the New York City Department of Education’s “Citywide Standards” (PDF) from 2013. There pupils are encouraged to establish “positive relationships,” for this is one of the “fundamental skills for life effectiveness.” Of course, developing positive relationships is not only an aim of pupils and employees of public schools. It is also one of the important tasks of both public and ecclesial institutions. Such a task should not require a compromise in core values or guiding principles. On the contrary, the spirit of cooperation calls for a deepening of the commitments to these foundations and maxims and a rediscovery of their basic constitutions. This is because cooperation is most effective when it is grounded in the specific ethos of the different institutions involved, and when there is an elementary agreement about some general shared goals and a common good.
Thanks, Paul, for this helpful information and commentary! I think you should send this to the Wall Street Journal for their editorial page. This needs to be shared with a broad community of Americans.
Paul Silas Peterson’s piece “Churches and public schools” addresses the contentious issue of whether public schools can be the sites of religious worship services outside of normal school hours. The decision comes as a defeat for the churches and I initially perceived this to be the right choice for maintaining church-state separation. The majority opinion in this case found that allowing these services might give rise to the appearance of an establishment of religion which is exactly what the government seeks to avoid in our secular society. The implications of allowing religious organizations access to public schools seemingly disrupts the behavior and intent of complete church-state separation by inhabiting the realm of the state in holding services within a state funded public school. This was my initial belief on the matter. However, I found the point from the 1948 “Statement on Church and State” to be particularly enlightening for altering my preconceived notions.
This piece points out that the state is prohibited from giving any religious institution a favored position in society but that a cooperative arrangement entered into between the state and the church is not posing a threat to religious liberty. It is a fair and just argument to claim that the “appearance of endorsement” is not an actual threat of endorsement. The desire to rid the public space of all appearances of government endorsements seems to be far too idealized for our imperfect and not fully secular society. It is clear that a church using a public school when it cannot afford or does not have its own space is not an endorsement of religion but merely a cooperative arrangement agreed upon by both parties. No one’s religious liberties are infringed upon nor are the students present in the classroom while these services are taking place. The government in allowing this space to be used is not violating its church-state separation as I once perceived it to be doing. By allowing the state and the church to find common ground in providing access to these public school grounds, the government is merely leaving room for religious liberty to flourish as different faiths are equipped with a space in which they can worship. Religion remains an option and free from the endorsement of the state while practicing after hours in public schools. We must consider viewing the world in less of a polarized framework to realize that the strict separation of church and state does not fully rid the public space of religion rather it allows it to exist in a cooperative, non-coercive manner within the secular state.
The decision of the Courts to uphold the banning and exclusion of churches use of public school facilities after hours is problematic in many facets, as highlighted by Peterson’s article. The basis for the New York City Board of Education to begin and implement a policy that limits the accessibility of its facilities to the surrounding communities seems in contradiction to the purpose of public education.The decision seems, from the onset, one that is based on a concern of “liability,” of the New York City Board of Education, rather on an actual concern that it may stifle religious tolerance in other spheres. I agree with Peterson as he asserts that an “appearance of endorsement,” comes from an image of society that is disproportionally favors the belief that public institutions remain objective. By framing their argument by looking at the potential for the “appearance of endorsement,” the Board seems to be side skirting their own fears, and unsurprisingly misconstruing the meaning of both endorsement and the Establishment Clause. As Peterson highlights, this decision is not constitutionally grounded and misconstrues and takes advantage of the secular dimensions of our legal system. It seems nearly absurd, that the Board of Education in one of the most diverse cities on the globe would be concerned with the legal ramifications for the “endorsement,” of religion when they are receiving monetary compensation for the use of the public facilities, a decision that also contradicts the need for both community and financial support towards public education, as Peterson duly notes. The idea that a religious community would be at odds with the public institution in their own neighborhoods, and presumingly that they are connected to, seems to be an ever more perplexing and irrational form of reasoning. Being that the alleged “endorsement,” could result from a regulated monetary and legal exchange between the school district and the church in question, it is interesting to see that the New York Board of Education would fear that such structures and rules would give way to what they claim to be violations of federal law and norms. Peterson’s reasoning for strengthening “positive relationships,” at the local level between institutions and community members, seems to be a valid enough reason to have fiscally and legally responsible institutional and community relationships, that strengthen bonds and promote cooperation. This cooperation is something that can be achieved being that these institutions both promote the sense of community, ideas of reciprocity and positive relationships as Peterson notes. Had the Board ruled in favor of the churches, the increased community involvement, strengthening of relationships and increased cooperation may have surprised both the Board and the residents of New York City.
I agree with Peterson’s view. While I understand, or at least think I understand, the idea of a separation between church and state, I do not see how this ruling falls under this idea. The schools being used are not supporting a particular religion or view, they are simply renting out their space. It would be very different if the school was in fact only renting the space to certain religions and not others, but if this is not the case then I see no problem with it.
I think the issue with this is that there is too much of an emphasis on the separation between church and state. While I am not saying that religion and government should be more intertwined than they are now, I am saying that the focus that is placed on it now is excessive. It isn’t about separating the state and church in every aspect, but about the government not openly supporting and/or advocating for an or any religion.
Peterson raises an important question in examining the upholding of the New York City Board of Education’s decision to exclude religious groups from using school facilities. While it may appear to be a clear cut and necessary separation of church and state, this issue is a bit more complex. It gets at the heart of how we define this critical separation and what we can reasonably expect it to entail, given the present nature of our society. Peterson focuses on the way individuals and groups actively seek to avoid any “appearance of endorsement.” People seem overly concerned with upholding a secular ideal, to the point where they may be losing sight of what our communities should look like. Perhaps instead of focusing on eliminating any link whatsoever between religion and the public sphere, we should instead be focused on allowing for their peaceful coexistence. Permitting a religious organization to use a public space does not seem, to me at least, to be any endorsement of whatever religions choose to make use of it. Since there appears to be no stipulation on which religious organizations may use the space, the government is making no claims about any religion, nor is it formally endorsing any.
As others have also pointed out, the notion of ridding the public sphere of anything that may “appear” to be a governmental endorsement is unrealistic. We must differentiate between appearances of endorsement and actual endorsements, while also understanding that community cooperation can in fact be a positive thing. In permitting a religious organization that has no space of its own to assemble in the school, the government is actually providing the opportunity for more groups to function. Looking at it from this perspective, what could be construed as an “appearance of endorsement” may be reframed in a more positive light.
I thought that this article was very interesting when looking at rejection of religion and religious indifference. Peterson talks about how the need to keep things unbiased in the public political sphere looks to the public. I thought that it was a really good point to bring up swearing on the bible in court and the inherent religious aspect of the swearing in of the President. There are a few things I want to bring up which are rejection of region and secularization as well as the impact of these two things.
In the 20th century we saw a big change in how the state and religion cooperated. Seeing secularization in north America changed religion in the way that it was viewed by the public and in private as well. Whereas before institutions were encouraged to “pick a side” in terms of their religious stance be it Protestant or Catholic for example now institutions are choosing to take a neutral stance or a non-religious stance. I think that this idea of non-religion and the spread of this outside of the public sphere is a by-product of modernity and secularization. When people look at the state and see that the leaders of the nation are biased towards a certain religion they may choose to as well just like you would see a rise in Protestantism in England during certain reigns. Obviously, that’s. a little different because a lot of the time people had no choice, but I do think there is a parallel there. Non-religion has a connection to secularization, atheism or religious indifference was never publically seen until the separations of religion and state.
I also wanted to look at the idea of friend and enemy, in Petersons article there is a lot of talk about schools and other institutions not wanting to seem like they favor one religion over another, so they choose no religion. I think that this lack of religion can be tied to Carl Schmitt’s friend and enemy concept. The friend and enemy concept is used as a type of “othering” I think that it is very interesting that now in the 21st century we’re seeing religious people as the “others” as opposed to the other way around where not even 50 years ago those who held no religious beliefs were on the outside of public and private spheres. This concept in relation to the article brings an interesting idea of where religion fits in in the public sphere now?
My question from here is: Will religions someday become completely privatized? Will this rising popularity of religious indifference and the rejection of religion become so vital to our political and public life that those who are religious are on the outside completely? Peterson brings up some good points and I was very interested in understating this article from a different point such as Schmitt’s though he may have come controversial views I do think his concept of friend and enemy fits well with this article.
(Schmitt, Hoelzl & Ward, 2016)