After a long struggle the enduring battle between Southern District of New York Judge Loretta Preska and the Second Circuit over the constitutionality of New York City’s ban on religious groups using public school buildings should soon be over. See Ch. Reg. D-180 § I.Q. A few days ago, the Second Circuit showed its first sign of submission to Judge Preska’s view of the issue after she handed down an opinion enjoining the Board of Education from enforcing the ban against the Bronx Household of Faith and some other 50 religious groups.

The case has been winding its way through the courts for nearly a dozen years. Although Judge Preska had previously enjoined the Board of Education from enforcing its ban on group worship in public schools, in 2011 the Second Circuit surprisingly vacated her longstanding injunction. In vacating the injunction, the Second Circuit averred the Board of Education had not violated the First Amendment. The court reasoned that while the Board of Education excludes religious worship from its public school buildings, it does not exclude “prayer, singing hymns, religious instruction, expression of devotion or the discussion of issues from a religion point of view.” See AP Reports.

Nonetheless, on February 16, 2012 Judge Preska responded in The Bronx Household of Faith v. Board of Education. Preska claimed the Second Circuit’s 2011 holding was limited to only Free Speech and thus failed to address other First Amendment issues such as whether the Board of Education’s ban on school worship violated the Establishment Clause or Free Exercise Clause. With a little wiggle room provided by the Religious Clauses, then, Judge Preska crafted a new temporary restraining order on behalf of The Bronx Household of Faith. After a decade-long duel, most observers assumed the battle for school worship in New York City public schools was finally reaching an end.

Little did they know. The back-and-forth continues. Only one day after Judge Preska issued the temporary restraining order, the Second Circuit jabbed back. Instead of fully submitting to Judge Preska’s injunction, the court delimited it to only the regulations against The Bronx Household of Faith, thereby excluding the 50 other similarly situated individuals and religious groups vying for an injunction against the Board of Education’s ban. The Second Circuit claimed: “The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties.”

Unsurprisingly, Judge Preska forged ahead. Instead of backing down to the jurisdictional chain-of-command, she unflinchingly disregarded the Second Circuit’s express limitation. In a lengthy opinion, Judge Preska enjoined the Board of Education from enforcing Ch. Reg. D-180 so as to allow not only The Bronx Household of Faith to rent space in public schools for morning meetings and religious worship, but also all other similarly situated groups. See The Bronx Household of Faith v. Board of Education of the City of New York. Judge Preska accordingly explained in a footnote:

“The Court is, of course, aware of the Court of Appeals’ order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly-situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party” (emphasis added).

Further, relying on Smith and Lukumi, Judge Preska reasoned the Bronx Household of Faith would likely succeed on the merits because under strict scrutiny, the Board of Education’s regulation fails. Although strict scrutiny is hard to come by in Free Exercise challenges in the post-Smith world, Sherbert still reigns supreme when laws target religion per Lukumi. Thus, according to Judge Preska, because the School Board’s ban on renting public school classrooms targets religious groups and is not a neutral law of general applicability, strict scrutiny is warranted. The School Board’s justification for singling out religious groups from renting public school classrooms on the weekend, however, fails to justify the restriction. Furthermore, along with the ban’s unconstitutionality under the Free Exercise Clause, Judge Preska also noted the ban posed Establishment Clause problems as the rule excessively entangles the government in religion because of the way in which the Board of Education investigates whether a religious group engages in “religious worship services” while using the classrooms.

Finally, after this decade long back-and-forth between Judge Preska and the Second Circuit, the Second Circuit has blinked. Despite Judge Preska’s flagrant disregard of the Second Circuit’s limitation of the injunction to The Bronx House of Worship, on February 29, 2012, the Second Circuit seemed to side with Judge Preska in refusing to grant the schools’ request to stay Judge Preska’s blanket injunction. The Second Circuit, however, did ask Judge Preska to resolve the case by mid-June, once and for all, so that the dispute is over by start of the new school year in the Fall of 2013. The New York school worship controversy will thus soon be over for not only Judge Preska and the Second Circuit, but also the multitude of religious groups seeking to use New York’s public school buildings for weekend worship.