A judge’s decision forcing New York City to provide subsidised space for religious worship challenges the US constitution
by Katherine Stewart, The Guardian, July 6, 2012
My latest piece from The Guardian:
Detail from the cover of Stewart’s book, The Good News Club: The Christian Right’s Stealth Assault on America’s Children.
It is being forced against its will to fund and operate a set of well-furnished facilities in prime locations for the purpose of housing a large network of predominantly evangelical churches. On weekdays, during school hours, these facilities are known as “public schools”. But after the bell rings, they become part of what we may now call “the Church of New York City”.
How did this blatant violation of the first amendment happen?
Among the many people who made this strange development possible, it wouldn’t have taken place without a certain kind of judge – the kind who, in other contexts, talks loudly about the virtues of “limited government”, the horrors of “judicial activism”, and the sanctity of the US constitution. Last week, Loretta Preska, chief judge of the US district court for the southern district of New York, who was appointed to her post by President George W Bush and is a member of the Federalist Society, ruled that the constitution positively requires the New York City department of education to provide publicly subsidized housing for churches through its public schools.
Judge Loretta Preska. Photograph: Fordham University law school
The decision is the latest twist in a legal saga that started nearly two decades ago, and it is hard not to see it as an aggressive act of judicial defiance against a higher court. Judge Preska’s decision effectively overturns last year’s decision by the second circuit court of appeals in the very same case, in which that court affirmed that the department of education’s prior policy of excluding houses of worship (along with partisan political groups) rested on sound constitutional grounds.
In her decision, Judge Preska doesn’t just defy a higher court; she also commits some spectacular assaults on logic. In arguing that no reasonable observer would imagine that turning schools into rent-free churches amounts to the establishment of religion, she reasons that:
“The objective observer would ‘know from the legislative history and implementation of the policy (including the lengthy judicial history) that the board’s actions betoken great effort to avoid establishing any religion’.”
In other words, as long as the school system expresses its opposition to the establishment of religion in judicial proceedings, the court can go ahead and order it to establish religion without fear of violating the establishment clause of the first amendment. That should be easy to explain to your five-year-old when he asks you whether the church is part of his school.
Judge Preska’s next act in the circus of bad reasoning falls in the slippery-slope genre. The board of education naturally allows a variety of activities within schools that have certain religious aspects. It may allow for the study of the Bible, for the study of the history of religions, and it may allow extracurricular clubs associated with religious denominations. Judge Preska asserts that there is no way to distinguish between such activities and a religious worship service, so you need to allow all of it.
The same phony logic has been attempted in cases involving pornography (if you can’t draw a fixed line between art and smut, then you have to allow it all, right?), and in arguments against same-sex marriage (allow women to marry women, they say, and pretty soon, people will be marrying dogs and monkeys!). These kinds of arguments belong in the posts of angry bloggers, not in judicial decisions handed down by a district court.
“Because defendants continue to refuse to define [the term “religious worship services] … this court cannot competently assess the merits of their argument,” Preska writes. Let’s get real: when there’s a man standing on the stage asking for 10% of your gross income and promising to show you the way to eternal salvation, and he spreads his arms wide and describes the building around him as a “house of God”, and the people in the audience raise their hands and praise the Lord – a scene I have personally observed in my children’s public elementary school on multiple Sundays – then you have what you may safely describe as a “religious worship service”.
Preska, in an effort to suggest that it would be unfair to keep the churches out of the schools, goes on to cite much evidence that these churches in public schools would not be in New York City at all, were it not for their rent-free accommodations supplied by the state. Arguing that failing to supply free space amounts to an infringement of the churches’ “religious freedom”, she notes that:
“If forced to worship elsewhere, the church would have no choice but ‘to reduce and/or eliminate ministries to [the church’s] members or the … local community.”
She doesn’t seem to understand that this evidence cuts the other way. It proves that taxpayers’ money is going to the establishment of religion. She seems to have confused the right to the free exercise of religion with a right to state-subsidized facilities for religious exercise – a right that is nowhere to be found in the constitution.
In another daring leap of logic, Judge Preska argues that, inasmuch as churches have been operating within New York City schools, a “tradition” of such involvement exists, and the board of education has an obligation to uphold it. But that “tradition” began in 2002, when a certain judge struck down the board’s longstanding prior policy of excluding churches, along with partisan political groups, from schools.
The judge in that case was none other than Loretta Preska. This is judicial activism as a kind of vanishing act: the judge sets the policy from the bench, and then, ten years later, validates it in the name of “tradition”.
Judge Preska continues chopping logic until she is left standing in a corner with the bizarre conclusion that the constitution not only permits, but actually demands that the state should finance a network of churches. If the state gets involved in deciding which religious activities count as worship, she reasons, it will become entangled in religion; therefore, it must subsidize all religious activities. Had the framers of the constitution followed this train of thought, of course, they would have mandated the establishment of religion, rather than prohibited it. Notwithstanding her Federalist Society credentials, Judge Preska’s reasoning does not have much to do with the original intentions of America’s founders. Her decision is more or less cribbed from the briefs written by the Alliance Defense Fund, the legal juggernaut of the Christian right that has been pushing this and other issues through an increasingly activist, radical judiciary, which erroneously calls itself conservative.
Some will say, along with Judge Preska, that the state does not establish religion if it remains neutral about which religion it establishes. That is probably false, but it also overlooks an important fact about the Church of New York City that Judge Preska has done so much to create: it is not neutral. The Church of New York City is overwhelmingly evangelical, and it distinctly favors a certain kind of evangelism. Some of its branches emphasize their anti-gay ministry. Some oppose the teaching of evolution and promote the idea that humans and dinosaurs walked the earth at the same time. Many denigrate other faiths. The branch that met at my children’s public school instructed congregants to pray for the destruction of America as a secular state; it is part of a religious movement whose leaders are explicit in their aims for the elimination of public education as a whole.
New York City public schools are under a lot of budgetary pressure. This past year, my fourth-grader had 33 kids in her class and a single teacher, with funding for an aide supplemented by parents. Parents are also paying for renovations and utilities – and the church at our school is a beneficiary. Our school may eliminate specialized tutors and foreign languages in order to deal with budget shortfalls. Preska’s decision to force the schools to take on church activities will not improve the situation. It will only add to unnecessary legal expenses. The City of New York will appeal, and it is right to do so.
It is hard to imagine that the second circuit won’t swipe aside Preska’s decision. But that anticipated result seems to be part of the plan. The ADF has already stated that it will then take the case back to the US supreme court, which declined to hear it several months ago.
If the supreme court decides to hear the case this time, and rules against the City, the resulting legal precedent may have vast consequences, burdening and weakening public education and all but mandating that every public school in America double as a house of worship. Preska’s decision is bad for New York, and bad for public education.