Discriminating Against Religion After Hours
By Nathan J. Diament
As appeared in the Jewish World Review March 6, 2001 / 11 Adar, 5761

FOR some years now, the State of New York has allowed its public schools to discriminate against religion. No, they don't make Jewish students attend separate classes or refuse to hire Catholic teachers; but they do discriminate against religion after hours.

New York law provides that local public school districts may make their facilities available during non-school hours "for holding social, civic and recreational meetings…pertaining to the welfare of the community…provided that such uses are non-exclusive and open to the general public." Under the aegis of this law, the upstate community of Milford enacted a policy that bars any individual or group from using its public school after hours for any religious purpose. This policy prompted Milford to deny the Good News Club, a Christian youth group, permission to meet on premises after school because their meetings include prayers, Bible study and a discussion of moral issues from a religious perspective.

The club sued the school district claiming that allowing secular groups to use its facilities after hours but not religious ones amounted to an unconstitutional violation of their right to free speech for it excluded them solely on the basis of the religious viewpoint of their discussion. A federal trial court and an appellate panel both ruled against the youth club on the grounds that Milford's policy was, in fact, "reasonable" and viewpoint neutral.

This is not the first time that New York's public schools have shut their doors to religion. In New York City, at least two public schools in the Bronx refused to rent spaces to community churches for weekend prayer meetings. In both instances, the federal courts again ruled in favor of the schools on the grounds that excluding religious activity but permitting all other forms of social and civic activity was permissible under the constitution. Now, the Supreme Court will assess this issue, and we can expect they will rule against the New York policy, as they should.

The core question in today's debates over the parameters of the church-state relationship in the United States - whether related to state subsidies for parochial schools, President Bush's faith-based social service initiative or religious use of public facilities - is whether religion and its adherents are entitled to equal treatment by the state, including equal benefit from state resources, or whether religion will be treated unequally and restricted from full participation in America's civic life.

Many, no doubt, find it jarring to think of religion as being treated unfairly in America. We do have profound religious freedom in this country. But that freedom is only as broad as the space within which it is allowed to exist. No one questions every American's right to believe as she chooses or worship as he pleases… in private. It is when faith comes into the public sphere that our debates still rage.

When Joe Lieberman tethered public policy arguments to religious foundations last year, questions were raised. John Ashcroft's opponents asked about his ability to wall off his "fundamental beliefs" from his duties as Attorney General. Similar inquiries are not made of those who bring their secularly based arguments to the public square even if they hold fast to them as devoutly as the faith-believer does his. And that is only with regard to public debate; when resources are to be allocated you can be sure the stakes and the volume are higher.

While many forms of state subsidies to parochial schools - such as busing, textbook loans and special education instructors - have long been ruled constitutional, opponents have continued to fight their implementation or expansion because they do not want even a portion of funding reallocated out of their programs to those of other schools and families. While the government already provides grants to private, non-profit social service agencies, President Bush's initiative to give faith-based agencies an equal opportunity to receive these grants is being opposed by some, no doubt, because funds may be reallocated. In each of these instances, restricting the faith-based schools and charities from equal footing in the public square serves to narrow the competition.

The case of the Good News Club provides the clearest, and perhaps most chilling, example of the drive to keep religion confined to the private sphere. There is no real issue of resource allocation here - the public school room where the club would meet is otherwise unoccupied after hours. However, to allow a religious group equal access to public facilities on an equal footing with other social and civic groups is to admit that the religious are entitled to equal footing outside the confines of their own community. How else to explain the Milford School District's willingness to let groups that deal with "the secular subject of morality" to use their facilities but not the Good News Club, or any other group that might discuss morality from a religious perspective?

Opponents will claim that allowing a religious group to meet on a public school campus, even after hours, is tantamount to governmental endorsement of that group's religion. But if that is the case, why do we not hold every other secular or civic group using facilities to the same standard? If a nuclear disarmament meeting took place would we assume government endorsement of their policy preferences? How about an AARP meeting or the local chapter of the National Rifle Association?

No it seems that despite the Founders enshrining religious liberty as "first freedom" in our Bill of Rights, we must still struggle for the full realization of this noble principle even today.

The Supreme Court will write the latest chapter in this story, when it rules on this case later this year.