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'Access Denied'

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[This article originally appeared in the February 2012 issue of Citizen magazine.]

Dec. 5, 2011, is a day Jordan Lorence will never forget — nor will the members of the Bronx Household of Faith (BHF) in New York City.

After 16 long years of litigation — involving two separate lawsuits, five federal district court decisions from the 2nd U.S. Circuit Court of Appeals and two unsuccessful requests for the U.S. Supreme Court to get involved — what was thought to be a "sure thing" turned out to be a supreme disappointment.

Lorence, senior counsel and senior vice president of the Office of Strategic Initiatives for the Alliance Defense Fund, who has represented the congregation in a legal tussle with New York City's Department of Education for nearly two decades, had expected the Supreme Court to accept his request for review.

Surely, he reasoned, the Court had decided in favor of equal access for private religious groups to meet in government facilities in at least five separate cases. The time was ripe for clarity, especially since lower federal courts were either split on the issue or avoiding applying Supreme Court precedents altogether. Instead, in one brief sentence, the High Court denied his request — and let stand a 2nd Circuit decision that acquiesced to New York City and its stubborn refusal to grant religious groups equal access to public buildings.

On Feb. 12, members of the Bronx Household of Faith — and at least 60 other congregations around the city, many of them church plants — will be homeless.

To add insult to injury, the Court's decision was handed down just three days shy of the 30th anniversary of the 1981 Supreme Court decision Widmar v. Vincent (see "Remembering Widmar," p. 22), considered a landmark legal decision protecting religious freedoms.

Supreme Silence

"I regret deeply what the Supreme Court did," Lorence reflect-ed. "The 2nd Circuit decision is clearly straying in a significant way from the Supreme Court's repeated announcement and reaffirmation of equal access principles — that private religious speakers have the same access to facilities as every other community group."

Lorence points out that the Supreme Court refused to take the case without affirming or repudiating the lower court's decision. Nevertheless, he believes it sends the wrong message.

"It has allowed this element of ambiguity and tentativeness to enter into the case law," he said. "It would have been much better if the Supreme Court had taken this [case]. We do know that it delayed a week to come down with a decision. The only way you can get a delay is if the justices say, 'We want to talk about this case.' I'm not sure what exactly that means, but it is not good news in the long run."

Supreme Irony

New York City opens its school buildings on weeknights and weekends for any use "pertaining to the welfare of the community."  The school board allows thousands of organizations to meet each year in its buildings. Those include meetings by labor unions, Boys Scout and Girls Scout troops, piano recitals, speeches and debates. But the policy prohibits worship services in vacant schools on Sunday mornings.

Since 1971, members of BHF have helped people to end their addiction to drugs, to stop stealing, to rebuild their marriages and to raise their children responsibly. In 1994, after 20 years of meeting in various homes and other cramped locations, they had applied to meet in a nearby public school.

School officials said "no" because of the board's policy banning private religious "worship services."

The New York Daily News responded on Dec. 9, 2011, with, "The city calls itself 'concerned about having any school in this di-verse city identified with one particular religious belief or practice.' It imagines second-graders becoming convinced that a church is officially established at the school.

"But the danger of kids coming to that mistaken conclusion is no greater when a church or synagogue or mosque uses a school building after hours for a religious service than when it uses it for a prayer circle or revival dinner."

The church was free to use the school for a Bible study or another event that did not include what the government considered to be "worship."

The blatant act of discrimination prompted Richard Hall, senior pas-tor of BHF, to scribble down Lorence's phone number after hearing him on the radio in 1995. Thus, the 16-year long journey began.

Constant Vigilance

If there is a silver lining in all of this, Lorence said it's that New York City is the only school district in the country with this type of public policy in place. The decision might entice school officials in other parts of the nation to change their policies; but many will not change, absent some strong effort by school officials or people in the community. 

And if there's a lesson to be gleaned it is this: Eternal vigilance is the price of freedom. "There are forces that want to erode it, which is clearly happening.

"We must be vigilant," Lorence warned, "on what lawmakers are doing and monitoring for any changes to equal access policies. Make sure elected officials know what you think — that equal access is a policy you want them to protect in the legislation they enact."

Shaping Faith

BHF lost all the way up to the Supreme Court, which then denied review in 1998, forcing them to meet in a cramped house for three years. Then, a miracle happened in 2001.

"This case was resurrected from the dead," Lorence reflected, "in a way that procedurally, under the federal rules of civil procedure, is on the magnitude of 'Lazarus, come forth!' It just doesn't happen this way."

The High Court had just handed down its decision in The Good News Club v. Milford Central School, and it mentioned that the BHF case had been wrongly decided — breathing new life into the equal access case.

"Then we got the same federal judge, Loretta Preska, who had ruled against us, and she basically had a 'Damascus Road' conversion and ruled totally in our favor," Lorence explained. "[She] issued an in-junction in July 2002. … For nine years the injunction was in effect and churches were allowed to flourish. We had a 'Prague Spring' of religious liberty in New York City. 

"Many of the churches [and elected officials] didn't realize until recently that Bronx was like [Aaron and Hur], holding up Moses' arms. That's why they were allowed in the schools."

After Dec. 5, the case quickly shifted from the Supreme Court to the court of public opinion. On Dec. 8, Lorence found himself at a rally on the steps of New York's City Hall, being introduced by Fernando Cabrera, a pastor and city councilman from the Bronx. Cabrera, who had considered expanding his church into a school — until he learned about the lawsuit, is now leading an effort in concert with several New York state legislators to change the state law.

The whole experience has shaped Lorence's faith.

"You know, God's ways are very different about this case," he confided. "I was expecting to hear this good news from the Supreme Court and the answer was 'no.'

"As with many things in the Christian life, you face disappointments. Rather than get depressed or bitter, the act of faith is believing God is going to have a good result."  

Sidebar: Remembering Widmar

According to David Hacker, ADF's legal counsel for its University Project, if you were ever in a Christian club at your public school or college or attended a church or Bible study that met in a school or public facility, you have the 11 brave students and the Supreme Court's 1981 Widmar v. Vincent decision to thank. 

Prior to 1981, if you had an equal access case, you likely were out of luck. "The courts wanted to put the Establishment Clause in the center of the solar system. So nothing made sense," ADF's Jordan Lorence said. "It was basically 'religion is [an] inherently dangerous thing' and … the government [was] to go on a 'search and destroy' mission to remove all things religious. The fact that it was private speech in a government forum made no difference." 

In 1977, when a group of Christian students attending the University of Missouri (Kansas City) were told they could no longer meet on campus to pray, sing and read the Bible, the students filed a First Amendment lawsuit. Hacker concluded, "The 11 students must have known that the ability of their group to survive and share God's Word depended on it reaching students on campus. And the only way to reach students on campus was to be on campus."  

In a lopsided 8-1 decision, the Court held that University policies were discriminatory by excluding groups based on religious content. "The Court also held that the government does not violate the Establishment Clause," he wrote, "by opening its facilities neutrally to private expression."  

Hacker points to Professor Michael Stokes Paulsen's clear summation:  

"Widmar's free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. 

"And Widmar's free-speech principle is closely allied with the freedom to exercise one's religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations and religious identity in American public life.  

"Freedom of religion means, at bedrock, the right of religious persons, groups and ideas to participate fully and equally in the life of the community and in the marketplace of ideas." 

FOR MORE INFORMATION

Contact the Alliance Defending Freedom at 1-800-TellADF or AllianceDefendingFreedom.org.

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