Bronx Household of Faith v. Bd. of Educ.

Opinion

06-0725 Bronx Household of Faith v. Bd. of Educ.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2006 5 (Argued: September 28, 2006 Decided: July 2, 2007) 6 Docket No. 06-0725-cv 7 -----------------------------------------------------x 8 THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL, AND JACK 9 ROBERTS, 10 11 Plaintiffs-Appellees, 12 13 -- v. -- 14 15 BOARD OF EDUCATION OF THE CITY OF NEW YORK and 16 COMMUNITY SCHOOL DISTRICT NO. 10, 17 18 Defendants-Appellants. 19 20 -----------------------------------------------------x 21 22 B e f o r e : WALKER, LEVAL, and CALABRESI, Circuit Judges.

23 Appeal from denial of summary judgment in favor of, and 24 entry of permanent injunction against, Defendants-Appellants. 25 VACATED and REMANDED.

26 DAVID A. CORTMAN, Alliance Defense 27 Fund, Lawrenceville, GA (Jordan W. 28 Lorence, Benjamin W. Bull, and 29 Joseph P. Infranco, Alliance 30 Defense Fund, Scottsdale, AZ, on 31 the brief), for Plaintiffs- 32 Appellees. 33 34 JANE L. GORDON, Senior Counsel, 35 Corporation Counsel of the City of 36 New York (Michael A. Cardozo, 37 Corporation Counsel, Edward F.X. 38 Hart, Lisa Grumet, and Janice Casey 39 Silverberg, on the brief), New York 40 NY, for Defendants-Appellants.

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1 DAVID WHITE, Attorney, United 2 States Department of Justice, Civil 3 Rights Division, Appellate Section 4 (Wan J. Kim, Assistant Attorney 5 General, Dennis J. Dimsey and Eric 6 W. Treene, Attorneys, Washington, 7 D.C., Michael J. Garcia, United 8 States Attorney for the Southern 9 District of New York, David J. 10 Kennedy and Andrew W. Schilling, 11 Assistant United States Attorneys, 12 New York, NY, on the brief), 13 Washington, D.C., for Amicus Curiae 14 United States of America. 15 16 MITCHELL A. KARLAN (Aric H. Wu, 17 Marci R. Etter, and Farrah L. 18 Pepper, Gibson, Dunn & Crutcher, 19 LLP, Carol Nelkin, Jeffrey P. 20 Sinensky, and Kara H. Stein, the 21 American Jewish Committee, on the 22 brief), Gibson, Dunn & Crutcher, 23 LLP, New York, NY, for Amicus 24 Curiae the American Jewish 25 Committee. 26 27 ANTHONY J. COSTANTINI, the 28 Committee on Education and the Law, 29 Association of the Bar of the City 30 of New York (Jonathan R. Bell, 31 Rosemary Halligan, and Laura L. 32 Himelstein, on the brief), New 33 York, NY, for Amicus Curiae 34 Committee on Education and the Law, 35 Association of the Bar of the City 36 of New York. 37 38 PER CURIAM:

39 The Bronx Household of Faith, a Christian church, has 40 applied to use New York City school facilities for Sunday worship 41 services. In 2001, the Board of Education of the City of New 42 York denied Bronx Household’s application, relying on Standard 43 Operating Procedure Manual (SOP) § 5.11, its rule then in effect

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1 governing the use of school facilities by outside groups for 2 “social, civic, [or] recreational meetings, . . . and other uses 3 pertaining to the welfare of the community.” New York Educ. L. § 4 414(1)(c). The District Court for the Southern District of New 5 York (Loretta A. Preska, Judge) first preliminarily enjoined the 6 City’s enforcement of SOP § 5.11, concluding that the City could 7 not exclude Bronx Household. This court affirmed the preliminary 8 injunction. The district court then entered a permanent 9 injunction barring the City from enforcing a revision of SOP § 10 5.11. (“Revised SOP § 5.11”). (Judges Walker and Calabresi 11 believe the revision to be the current version of SOP § 5.11, 12 while Judge Leval questions whether the revision has been 13 formally adopted.)1 14 We hereby vacate the permanent injunction, although we reach 15 that conclusion in rather circuitous fashion. Judge Calabresi 16 would hold that this dispute is ripe for adjudication and would 17 vacate the injunction because he concludes that Revised SOP § 18 5.11, while a restriction on the content of speech permitted on 19 school property, is viewpoint-neutral. Judge Walker agrees that 20 the dispute is ripe for adjudication but would affirm the 21 injunction because he concludes that Revised SOP § 5.11 is 22 viewpoint-discriminatory. Judge Leval expresses no opinion on 23 the merits, but votes to vacate the injunction because he

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1 Judges Calabresi and Leval describe the remaining salient 2 facts in their concurring opinions.

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1 concludes that the dispute is not ripe for adjudication. 2 Our disparate views of this case leave us without a 3 rationale to which a majority of the court agrees. While two 4 judges who disagree on the merits believe the dispute is ripe for 5 adjudication, the court cannot decide the merits of the case 6 without the vote of the third judge, who disagrees as to 7 ripeness. Judge Leval agrees that the dispute over Revised SOP § 8 5.11 would indisputably become ripe if the City were to deny 9 Bronx Household permission to use school facilities in reliance 10 on the terms of that rule.2 11 In vacating the judgment, we remand the action to the 12 district court for all purposes. We have every reason to believe 13 that both parties hope to bring this protracted litigation to an 14 end by obtaining a decision on the merits. The City is free to 15 adopt Revised SOP § 5.11 (if it has not already done so), and 16 then require that Bronx Household apply to use school buildings 17 pursuant to that rule. In the event Bronx Household does so, and 18 the City denies the application, Bronx Household may seek review 19 of that denial in the district court on an expedited basis. 20 Either party’s appeal from any judgment of the district court

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1 We express no firm opinion respecting whether or not the 2 preliminary injunction, which preceded Revised SOP § 5.11 and 3 remains in effect, bars the enforcement of Revised SOP § 5.11 (if 4 it has been adopted), nor do we need to decide whether or not if 5 it does, that fact in itself renders the dispute ripe. Rather, 6 we note simply that we do not read the preliminary injunction to 7 preclude the City from adopting Revised SOP § 5.11 (if it has not 8 done so already).

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1 will be referred to this panel. If the parties desire a speedy 2 resolution of their dispute, we believe all this can be 3 accomplished with little delay; indeed, we direct the parties to 4 advise us should they file another appeal and invite the parties, 5 should they wish to, otherwise to apprise us of subsequent 6 developments, in either case by directing a letter to the Clerk 7 of Court. 8 The permanent injunction of the District Court for the 9 Southern District of New York is VACATED. Concurring opinions by 10 Judges Calabresi and Leval, as well as a dissenting opinion by 11 Judge Walker, follow.

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1 CALABRESI, Circuit Judge: 2 Is worship merely the religious analogue of ceremonies, 3 rituals, and instruction, or is worship a unique category of 4 protected expression? I believe the answer to that question 5 determines the result in this case brought under the Free Speech 6 Clause of the First Amendment. 7 The Bronx Household of Faith (“Bronx Household”), a Christian 8 church, along with its pastors Robert Hall and Jack Roberts, 9 attacked as viewpoint discrimination the refusal of the Board of 10 Education of the City of New York (“the Board”) and Community 11 School District No. 10 (“the School District”) to permit the church 12 to use school facilities for Sunday worship services. The district 13 court (Preska, J.) granted summary judgment in favor of the 14 plaintiffs and permanently enjoined defendants from enforcing their 15 policy that excludes worship services from school facilities. I 16 vote to vacate the court’s determination that, as a matter of law, 17 defendants’ exclusion of worship services from school facilities is 18 impermissible viewpoint discrimination, and remand the case to the 19 district court for further developments in light of this and the 20 other opinions of this panel filed today.

21 I. BACKGROUND 22 23 24 The relevant facts are not in dispute. The conflict between

25 these parties began in 1994, when the School District denied

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1 plaintiffs’ request to rent space in the Anne Cross Mersereau 2 Middle School (“M.S. 206B”) for Sunday morning meetings. Bronx 3 Household’s weekly meetings would have included the “singing of 4 Christian hymns and songs, prayer, fellowship with other church 5 members and Biblical preaching and teaching, communion, sharing of 6 testimonies” and a “fellowship meal” that allows attendees to talk 7 and provide “mutual help and comfort to” one another. (First 8 Affidavit of Robert Hall at 1). 9 Under New York State law, local school districts may permit 10 their facilities to be used during after-school hours for a broad 11 range of purposes, including “social, civic and recreational 12 meetings and entertainments, and other uses pertaining to the 13 welfare of the community; but such meetings, entertainment and uses 14 shall be nonexclusive and shall be open to the general public.” 15 N.Y. Education Code § 414(1)(c) (McKinney 2006). The statute 16 authorizes the “trustees or board of education of each district” to 17 allow access to school facilities for any use it chooses within 18 this range of purposes. § 414(1). District No. 10, a public school 19 district in the Bronx, is subject to the jurisdiction of the New 20 York City Board of Education. 21 In 1994, the School District enforced the Board’s Standard 22 Operating Procedures Manual (SOP) which, at the time, included a 23 provision barring outside organizations from conducting “religious 24 services or religious instruction on school premises after school,”

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1 though it allowed groups to “discuss[] religious material or 2 material which contains a religious viewpoint.” SOP § 5.9. 3 Plaintiffs brought an action against defendants to compel the 4 School District to grant a permit for Bronx Household’s weekly use 5 of the school facilities, but the district court granted 6 defendants’ motion for summary judgment, and dismissed the suit. 7 Bronx Household of Faith v. Community Sch. Dist. No. 10, No. 95 8 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). We affirmed. 127 9 F.3d 207 (2d Cir. 1997), cert. denied, 523 U.S. 1074 (1998) 10 [hereinafter Bronx Household I]. 11 We subsequently applied our reasoning from Bronx Household I 12 to another viewpoint discrimination challenge brought against the 13 Milford School District by a private Christian organization for 14 children (the Good News Club). We held that the Milford district 15 could deny the Good News Club a permit to conduct religious 16 instruction in school facilities because this amounted to 17 “quintessentially religious” activity. Good News Club v. Milford 18 Central Sch., 202 F.3d 502 (2d Cir. 2000). 19 The Supreme Court, however, reversed our holding in that case. 20 533 U.S. 98 (2001). The Court found that the Good News Club was 21 seeking “to address a subject otherwise permitted [in the school], 22 the teaching of morals and character, from a religious standpoint.” 23 533 U.S. at 109. The High Court did not dispute the validity of 24 Justice Souter’s description of the Club’s activities as including

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1 elements of worship, from the opening and closing of meetings with 2 prayer, to activities such as “the challenge,” where already 3 “saved” children would ask God for strength, and “the invitation,” 4 during which the teacher would “invite” the “unsaved” children to 5 “receive” Jesus as their “Savior from sin.” Id. at 137-38 (Souter, 6 J., dissenting). Nevertheless concluding that the Good News Club’s 7 activities were not “mere religious worship, divorced from any 8 teaching of moral values,” id. at 112 n.4, the Court declared: “We 9 disagree that something that is ‘quintessentially religious’ or 10 ‘decidedly religious in nature’ cannot also be characterized 11 properly as the teaching of morals and character development from 12 a particular viewpoint,” id. at 111. On this basis, and given that 13 other types of moral and character development teaching were 14 permitted “after school,” the Court condemned Milford’s exclusion 15 of the Good News Club as viewpoint discrimination. Id. at 102, 108- 16 109. It further held that while it is “not clear” whether a state 17 interest in avoiding an Establishment Clause violation could 18 justify viewpoint discrimination, “[w]e need not . . . confront the 19 issue in this case, because we conclude the school has no valid 20 Establishment Clause interest.” Id. at 113. 21 After the Supreme Court’s decision in Good News Club, Bronx 22 Household in 2001 again applied for and was again denied a permit 23 to use District No. 10’s middle school for weekly Sunday meetings. 24 The grounds of this denial remained the Board’s SOP provision

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1 prohibiting any “outside organization or group” from conducting 2 “religious services or religious instruction on school premises 3 after school.” SOP § 5.11 (the section was previously numbered 5.09 4 in Bronx Household I). Bronx Household brought a new action against 5 the defendants, and this time the district court, following the 6 Supreme Court’s ruling in Good News Club, preliminarily enjoined 7 the School District from denying the permit on the basis of SOP § 8 5.11 and the religious nature of the church’s weekly meetings. 226 9 F. Supp. 2d 401 (S.D.N.Y. 2002).1 A divided panel of our court 10 affirmed: “We find no principled basis upon which to distinguish 11 the activities set out by the Supreme Court in Good News Club from 12 the activities that the Bronx Household of Faith has proposed for 13 its Sunday meetings at Middle School 206B.” 331 F.3d 342, 354 (2d 14 Cir. 2003) [hereinafter Bronx Household II]. 15 In so doing, however, the majority stated that “it cannot be 16 said that the meetings . . . constitute only religious worship, 17 separate and apart from any teaching of moral values,” and added:

18 Like the Good News Club meetings, the Sunday morning meetings 19 of the church combine preaching and teaching with such 20 “quintessentially religious” elements as prayer, the singing 21 of songs, and communion. The church’s Sunday morning meetings

1 1 The action was initially brought under the First Amendment, the 2 Equal Protection Clause, and Sections 3, 8, and 11 of Article I of 3 the New York Constitution. Since the district court granted the 4 injunction requested by plaintiffs on the First Amendment free 5 speech ground without addressing the remaining claims, 226 F. Supp. 6 2d 401, 426-27 (S.D.N.Y. 2002), plaintiffs have not pursued the 7 alternative claims and they are not before us in the instant 8 appeal.

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1 also encompass secular elements, for instance a fellowship 2 meal during which church members may talk about their problems 3 and needs. 4 Id.

5 Notably, in Bronx Household II, we specified that “[o]ur 6 ruling is confined to the district court’s finding that the 7 activities plaintiffs have proposed for their Sunday meetings are 8 not simply religious worship, divorced from any teaching of moral 9 values or other activities permitted in the forum.” Id. (emphasis 10 added). We thus left unresolved the instant appeal’s central 11 question:

12 How does the distinction drawn in our earlier precedent 13 between worship and other forms of speech from a religious 14 viewpoint relate to the dichotomy suggested in Good News Club 15 between “mere” worship on the one hand and worship that is not 16 divorced from the teaching of moral values on the other?

17 Id. at 355. Moreover, and despite our acknowledgment of an “obvious 18 tension” between our ruling in Bronx Household I and the district 19 court’s application of Good News Club, we specifically “decline[d] 20 to review the trial court’s further determinations that, after Good 21 News Club, religious worship cannot be treated as an inherently 22 distinct type of activity, and that the distinction between worship 23 and other types of religious speech cannot meaningfully be drawn 24 by the courts.” Id. 25 Bronx Household thereafter applied for, and was granted, 26 permission to use P.S. 15 in Bronx, New York, on Sundays from 27 10:00am to 2:00pm. Bronx Household has used the school facilities

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1 since August 2002, with attendance on a given Sunday morning 2 reaching approximately 85-100 people. The church’s Sunday meeting 3 activities in the school facilities include “singing songs and 4 hymns; teaching from the Bible; sharing testimonies from people in 5 attendance; socializing; eating; engaging in prayer; and 6 communion.” 400 F. Supp. 2d 581, 592 (S.D.N.Y. 2005). 7 Subsequently, while the preliminary injunction was in effect 8 and the church was exercising its permit to use school facilities, 9 the Board of Education announced that it was modifying the enjoined 10 SOP provision. As revised, § 5.11 states:

11 No permit shall be granted for the purpose of holding 12 religious worship services, or otherwise using a school as a 13 house of worship. Permits may be granted to religious clubs 14 for students that are sponsored by outside organizations and 15 otherwise satisfy the requirements of this chapter on the same 16 basis that they are granted to other clubs for students that 17 are sponsored by outside organizations.

18 (emphasis added). Having altered § 5.11, defendants notified 19 plaintiffs that:

20 Plaintiffs’ use of P.S. 15 for the Bronx Household of 21 Faith’s regular worship services is prohibited under the 22 revised section 5.11. Defendants are not currently 23 enforcing the revised section 5.11 . . . because of the 24 preliminary injunction Order that was entered in this 25 case. Should defendants prevail in this motion for 26 summary judgment and the preliminary injunction Order be 27 vacated, then any future application by plaintiffs to 28 hold their worship services at P.S. 15 or any other 29 school will be denied. 30 400 F. Supp. 2d at 588.

31 In March 2005, the parties cross-moved for summary judgment. 32 Bronx Household moved to convert the July 2002 preliminary

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1 injunction into a permanent injunction, contending the revised SOP 2 § 5.11 is unconstitutional for the same reason the enjoined SOP 3 provision was held to be unconstitutional. The district court 4 granted plaintiffs’ motion for summary judgment, denied defendants’ 5 cross-motion for summary judgment, and permanently enjoined the 6 Board from enforcing SOP § 5.11 against appellees. 7 On appeal, defendants argue that: (1) their categorical 8 exclusion of worship services as an after-hours use of school 9 facilities does not constitute viewpoint discrimination; and (2) 10 even if they are found to have discriminated on the basis of 11 viewpoint, such discrimination was justified to avoid violations of 12 the Establishment Clause. In response, plaintiffs acknowledge that 13 “[f]rom the particular theological perspective of the pastors, . . 14 . these activities done at the Sunday morning meeting [are] 15 collectively a ‘worship service.’” (Brief of Appellees at 10). But 16 they contend that worship is protected like any other religious 17 speech, and that under Good News Club the state discriminates on 18 the basis of viewpoint when it excludes worship services from 19 school facilities. Additionally, plaintiffs argue that the state 20 does not possess a sufficiently overriding interest in avoiding an 21 Establishment Clause violation to justify viewpoint discrimination 22 against Bronx Household.

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1 II. DISCUSSION 2 3 In Bronx Household II we expressly reserved judgment on 4 whether worship is simply speech expressing a religious viewpoint 5 on the same subject addressed in a variety of ways in the rituals, 6 ceremonies, and instruction of secular and religious organizations, 7 or whether worship is a unique subject protected as a sui generis 8 category under the Free Speech Clause. Cf. Bronx Household I, 127 9 F.3d at 221 (Cabranes, J., concurring in part and dissenting in 10 part) (stating that “there is no real secular analogue to religious 11 ‘services’”). At that time, we upheld a preliminary injunction 12 against defendants’ regulation barring the use of school facilities 13 for “religious services or religious instruction,” since the latter 14 directly implicated the Supreme Court’s ruling in Good News Club. 15 But now the Board’s modified regulation excludes only worship 16 services that are not part and parcel of religious instruction. As 17 a result, I believe that we must consider the relationship, after 18 Good News Club, between worship, simpliciter, and other forms of 19 protected speech, including religious and nonreligious 20 instructional speech and rituals.2

2 1 Judge Leval argues that the propriety of a permanent injunction 2 against the revised SOP § 5.11 is not ripe for adjudication. The 3 question is a close one. It turns, in part, on whether the Board 4 has actually adopted the new SOP § 5.11, or whether the revision 5 has simply been proposed. While there are some comments in the 6 record that could be taken to mean the Board will adopt revised SOP

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1 § 5.11, there is also specific evidence in the record that 2 defendants have already done so. See, e.g., Statement of Attorney 3 for the Board (“It is a policy that has been approved at the 4 highest levels of the Department of Education. The only reason that 5 we have not implemented it at this time or applied it to the 6 plaintiffs in this case is because of the court’s preliminary 7 injunction.”); Letter from Lisa Grumet to Jordan Lorence and Joseph 8 Infranco (Aug. 17, 2005), 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005) 9 (“The use of P.S. 15 for . . . regular worship services is 10 prohibited under the revised section 5.11. . . . Should defendants 11 prevail in this motion for summary judgment and the preliminary 12 injunction Order be vacated, then any future application by 13 plaintiffs to hold their worship services at P.S. 15 or any other 14 school will be denied.”). In deciding to make the injunction 15 permanent and applying it directly to worship services, the court 16 below must be taken to have found that the new SOP § 5.11 was, in 17 fact, adopted, and I cannot say that this fact-finding was clearly 18 erroneous. 19 Judge Leval relies, as he must, on the Supreme Court’s leading 20 decisions on ripeness, including Abbott Laboratories v. Gardner, 21 387 U.S. 136 (1967), overruled on other grounds, Califano v. 22 Sanders, 430 U.S. 99 (1977). That case permitted, at a 23 constitutional level and at a prudential level, judicial 24 consideration of an agency regulation prior to its enforcement, in 25 part because the impact of the regulation on the plaintiffs was 26 “sufficiently direct and immediate.” Id. at 152. In this case, 27 there is one unmistakable “direct and immediate” consequence for 28 the parties; the case has been up and down the courts for years and 29 no resolution as to the rights of the Board or Bronx Household is, 30 as yet, forthcoming. At the prudential level, I do not believe we 31 should ignore that very practical consequence. 32 Moreover, I am not convinced that there are not more 33 traditionally legal consequences as well. If we simply vacate the 34 permanent injunction without reaching the merits, as Judge Leval’s 35 opinion would do, we leave in place the preliminary injunction 36 based on the old SOP § 5.11. That injunction correctly, in light of 37 Good News Club, prohibited the Board from excluding Bronx 38 Household’s use of school premises for conduct that included 39 “religious instruction,” but it did more. It barred the Board from 40 denying plaintiffs’ application to rent space in the school “for 41 morning meetings that include religious worship . . . .” (emphasis 42 added). That, by itself, more than minimally hampers the Board in 43 seeking to enforce the revised SOP § 5.11. I believe that this 44 comfortably meets the constitutional ripeness requirements of 45 Abbott and its progeny, and together with the effects of long delay 46 in this case, weighs heavily on the issue of prudential ripeness. 47 I fully agree that we should take very seriously our

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Standard of Review

1 A. 2 3 We review de novo the district court’s grant of summary

4 judgment and construe the evidence in the light most favorable to 5 the non-moving party. See World Trade Center Properties, L.L.C. v. 6 Hartford Fire Ins. Co., 345 F.3d 154, 165-166 (2d Cir. 2003); 7 Johnson v. Wing, 178 F.3d 611, 614 (2d Cir. 1999). Summary judgment 8 is appropriate only if there are no genuine issues of material fact 9 such that the party making the motion is “entitled to judgment as 10 a matter of law.” Fed. R. Civ. P. 56(c); see Peck v. Public Service 11 Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003). This standard 12 applies equally to cases, like the instant one, in which both 13 parties moved for summary judgment. See Morales v. Quintel 14 Entertainment, Inc., 249 F.3d 115, 121 (2d Cir. 2001). As a result, 15 when parties have filed cross-motions for summary judgment, the

1 obligation to avoid unnecessary constitutional adjudication. And if 2 I agreed with Judge Leval that this case was not ripe, I would, 3 like him, happily defer consideration. And I would even hope that 4 it would not return or do so only in some constitutionally easier 5 factual context. But once I, unlike Judge Leval, conclude that the 6 case is ripe, I cannot hide from the constitutional issues that are 7 there, fully argued, smack in our faces, and where failure to 8 resolve them subjects the parties to long delay and costly 9 uncertainties. That is, having found ripeness, I must decide the 10 constitutional questions based on the facts before us today and not 11 fail to act in the hope that they might disappear in another case 12 involving other facts. 13 There are many arguments in favor of the position Judge Leval 14 takes, especially with respect to prudence. I do not wish to 15 undervalue them. All in all, though, I think the correct and 16 prudent thing to do in this case is to bite the bullet and decide 17 what the constitutional consequence of the exclusion of worship 18 services, as against religious instruction, is.

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1 court “must evaluate each party’s motion on its own merits, taking 2 care in each instance to draw all reasonable inferences against the 3 party whose motion is under consideration.” Hotel Employees & Rest. 4 Employees Union, Local 100 v. City of New York Dep’t of Parks & 5 Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein, 6 Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)).

Applicable Level of Constitutional Scrutiny 7 B. 8

9 The Constitution does not guarantee unlimited freedom to speak 10 on government property. Cornelius v. NAACP Legal Defense & Educ. 11 Fund, 473 U.S. 788, 799 (1985). The scrutiny applied to 12 restrictions of speech on government property varies with the 13 nature of the forum in which the speech occurs. To guide us, in 14 this respect, the Supreme Court has defined four categories of 15 “fora for expression . . . that, correspondingly, fall along a 16 spectrum of constitutional protection.” Peck v. Baldwinsville Cent. 17 Sch. Dist., 426 F.3d 617, 625 (2d Cir. 2005). 18 In traditional public fora – streets, parks, and places that 19 “by long tradition . . . have been devoted to assembly and debate,” 20 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45- 21 46 (1983) – speakers can be excluded only if the exclusion is 22 “necessary to serve a compelling state interest and the exclusion 23 is narrowly drawn to achieve that interest.” Cornelius, 473 U.S. at 24 800.

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1 We apply the same scrutiny to restrictions in a second 2 category, the “designated public forum.” “[W]hen the government has 3 intentionally designated a place or means of communication as a 4 public forum[,] speakers cannot be excluded without a compelling 5 governmental interest,” id., and this remains so even though the 6 forum is not traditionally open to public assembly and debate. 7 The Court has also recognized a third category, the limited 8 public forum. A limited public forum is created when the government 9 designates “a place or channel of communication for use by the 10 public at large for assembly and speech, for use by certain 11 speakers, or for the discussion of certain subjects.” Id. at 802. 12 In the limited public forum, an entire class of speakers or 13 subjects may be excluded according to “reasonable, viewpoint- 14 neutral rules governing the content of speech allowed.” Peck, 426 15 F.3d at 626. But, once the government “allows expressive activities 16 of a certain genre, it may not selectively deny access for other 17 activities of that genre.” Travis v. Owego-Apalachin Sch. Dist., 18 927 F.2d 688, 692 (2d Cir. 1991); see also Rosenberger v. Rector & 19 Visitors of the Univ. of Virginia, 515 U.S. 819, 829 (1995) (“[T]he 20 State must respect the lawful boundaries it has itself set. The 21 state may not exclude speech where its distinction is not 22 reasonable in light of the purpose served by the forum, nor may it 23 discriminate against speech on the basis of its viewpoint.”) 24 (internal quotation marks and citations omitted).

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1 Finally, in a nonpublic forum, which has not been opened by 2 tradition or designation to the public for communication, speech 3 may be excluded through any “reasonable” content-based restrictions 4 so long as these do not “suppress expression merely because public 5 officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. 6 at 46. 7 In Bronx Household I, we held that defendants’ school 8 facilities constituted a limited public forum and, consequently, 9 that speech could be barred only through restrictions that were 10 viewpoint neutral and reasonably related to the limited purposes 11 of the forum. 127 F.3d at 211-214. Bronx Household II did not 12 revisit this finding.3 We remain bound by our finding that the 13 school in the case at bar is a limited public forum. There is 14 nothing in the record that requires us to reconsider that holding. 15 And Good News Club in no way calls our reasoning on this point into 16 question. 533 U.S. at 107; id. at 136 n.1 (Souter, J.,

17 dissenting).4 3 1 Even prior to Bronx Household’s suits, we had repeatedly found 2 that New York State, in its statute authorizing the use of school 3 facilities, intended to create only a limited public forum. Deeper 4 Life Christian Fellowship v. Sobol, 948 F.2d 79, 83-84 (2d Cir. 5 2001) (citing Tretley v. Bd. of Ed., 65 A.D.2d 1 (N.Y. App. Div. 6 1978)); see also Cornelius, 473 U.S. at 802; Lamb’s Chapel v. 7 Center Moriches Union Free School District, 508 U.S. 384, 390 8 (1993) (“There is no question that the [School] District, like the 9 private owner of property, may legally preserve the property under 10 its control for the use to which it is dedicated.”).

4 1 It bears observing that, in constituting this particular limited 2 public forum, defendants excluded in their entirety several other 3 classes of speakers and subjects apart from those at issue in the

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1 Since the forum involved in this case is a limited public 2 forum, the question of whether defendants’ exclusion of worship 3 services constitutes content or viewpoint discrimination becomes 4 crucial. For, as the Supreme Court has stated in Rosenberger:

5 [I]n determining whether the State is acting to preserve the 6 limits of the forum it has created so that the exclusion of a 7 class of speech is legitimate, we have observed a distinction 8 between, on the one hand, content discrimination, which may be 9 permissible if it preserves the purposes of that limited 10 forum, and, on the other hand, viewpoint discrimination, which 11 is presumed impermissible when directed against speech 12 otherwise within the forum’s limitations.

13 515 U.S. at 829-30 (emphasis added). 14 It is, of course, not always easy to “draw[] a precise line of 15 demarcation” between “what amounts to a subject matter unto itself, 16 and what, by contrast, is best characterized as a standpoint from 17 which a subject matter is approached.” Peck, 426 F.3d at 630 18 (citing Rosenberger, 515 U.S. at 831). Nevertheless, the 19 distinction is essential to the Court’s balance between a required 20 protection of speech and an essential protection of the 21 government’s ability to define the bounds of a limited forum it 22 chooses to open. And, as the Court has written unequivocally, the 23 State may be justified “in reserving [its forum] for certain groups

1 instant case. Among those excluded were electoral candidates’ 2 “political events, activities or meetings,” SOP § 5.7, and any 3 “commercial purposes, except for flea market operations.” SOP § 4 5.10. As a result, any redefinition of the nature of the school 5 forum before us would necessarily trigger searching scrutiny of the 6 Board’s exclusion from school facilities of political and 7 commercial activities as well as the worship services involved in 8 the current appeal.

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1 or for the discussion of certain topics.” Rosenberger, 515 U.S. at 2 829. It follows that we may uphold defendants’ exclusion of worship 3 services from their limited public forum, but that we may only do 4 so if we find that SOP § 5.11 is a “reasonable, viewpoint-neutral 5 rule[] governing the content of speech allowed.” Peck, 426 F.3d at 6 626 (first emphasis added) (citing Hotel Employees & Rest. 7 Employees Union Local 100, 311 F.3d at 545-6); see also New York 8 Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 128 (2d Cir. 9 1998). 10

11 C. Viewpoint Neutrality 12

13 In the end, I conclude that the barring of worship services 14 from defendants’ school facilities is a content-based restriction 15 and does not constitute viewpoint discrimination. In reaching this 16 conclusion, I first examine how the Court has defined viewpoint 17 discrimination, and then analyze the restriction before us.

18 19 1. Defining Discrimination on the Basis of Viewpoint 20 21 In a limited public forum, speech addressing an otherwise

22 permitted subject may not be restricted on the basis of its 23 viewpoint, and this concept applies directly to protect religious 24 approaches to the subject that is being discussed. This core 25 principle of the Supreme Court’s religious discrimination 26 jurisprudence derives from three key decisions: Lamb’s Chapel v.

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1 Center Moriches Union Free School District, 508 U.S. 384 (1993), 2 Rosenberger v. Rector and Visitors of the University of Virginia, 3 515 U.S. 819 (1995), and Good News Club v. Milford Central School, 4 533 U.S. 98 (2001). 5 In Lamb’s Chapel, a unanimous Supreme Court declared 6 unconstitutional the denial of an evangelical church’s request to 7 use school facilities to show a film series addressing child- 8 rearing questions from a Christian perspective. The Court concluded 9 that “it discriminates on the basis of viewpoint to permit school 10 property to be used for the presentation of all views about family 11 issues and childrearing except those dealing with the subject 12 matter from a religious standpoint.” 508 U.S. at 393. The Court 13 emphasized that Lamb’s Chapel concerned not just any religious 14 speech, but specifically a religious perspective on the clearly 15 permitted subject of childrearing and family:

16 There is no suggestion . . . that a lecture or film about 17 child rearing and family values would not be a use for social 18 or civic purposes otherwise permitted . . . . That subject 19 matter is not one that the District has placed off limits to 20 any and all speakers.

21 Id. 22 In Rosenberger, the Court found that the University of 23 Virginia discriminated on the basis of viewpoint by denying funding 24 for a student group that published a newspaper with a Christian 25 editorial viewpoint:

23

1 By the very terms of the [University fund’s] prohibition, the 2 University does not exclude religion as a subject matter but 3 selects for disfavored treatment those student journalistic 4 efforts with religious editorial viewpoints. Religion may be 5 a vast area of inquiry, but it also provides, as it did here, 6 a specific premise, a perspective, a standpoint from which a 7 variety of subjects may be discussed and considered.

8 515 U.S. at 831. Once again, the Court found it essential that 9 “[t]he prohibited perspective, not the general subject matter, 10 resulted in the [University’s] refusal to make . . . payments.” Id. 11 Finally, in Good News Club the Court affirmed the principle 12 that “speech discussing otherwise permissible subjects cannot be 13 excluded from a limited public forum on the ground that the subject 14 is discussed from a religious viewpoint.” 533 U.S. at 112. The Good 15 News Club had applied to use the Milford District’s school 16 facilities for meetings that included “singing songs, hearing a 17 Bible lesson and memorizing scripture,” 533 U.S. at 103, with “the 18 purported purpose . . . to instruct children in moral values from 19 a Christian perspective.” 202 F.3d 502, 504 (2d Cir. 2000). The 20 Club characterized itself as a youth organization that aids 21 children’s moral and spiritual development through the use of Bible 22 stories to teach such “values as obedience or resisting jealousy.” 23 Id. at 509. The Club described these and its other activities as 24 follows:

25 The Club opens its session with Ms. Fournier taking 26 attendance. As she calls a child’s name, if the child recites 27 a Bible verse the child receives a treat. After attendance, 28 the Club sings songs. Next[,] Club members engage in games 29 that involve, inter alia, learning Bible verses. Ms. Fournier

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1 then relates a Bible story and explains how it applies to Club 2 members’ lives. The Club closes with prayer. Finally, Ms. 3 Fournier distributes treats and the Bible verses for 4 memorization.

5 Id. at 507. The Club’s materials included a prayer booklet called 6 the “Daily Bread,” which “contained stories that refer to the 7 second coming of Christ, accepting the Lord Jesus as the Savior 8 from sin, and believing in the Resurrection and in the descent of 9 the Lord Jesus from Heaven.” Id. On this basis, the school district 10 concluded that the Club’s activities were not discussing “secular 11 subjects such as child rearing, development of character and 12 development of morals from a religious perspective, but were in 13 fact the equivalent of religious instruction itself.” Id. 14 The Supreme Court overturned this court’s finding that 15 Milford’s exclusion of the Club was viewpoint neutral. Likening the 16 Club’s Bible study instruction to the Lamb’s Chapel film series, 17 the Court held:

18 The only apparent difference between the activity of Lamb’s 19 Chapel and the activities of the Good News Club is that the 20 Club chooses to teach moral lessons from a Christian 21 perspective through live storytelling and prayer, whereas 22 Lamb’s Chapel taught lessons through films. This distinction 23 is inconsequential. Both modes of speech use a religious 24 viewpoint.

25 533 U.S. at 109-10. Significantly, the Court held that even if the 26 Club’s activities were “quintessentially religious” or “decidedly 27 religious in nature,” they could still be characterized properly 28 as the teaching of morals and character development: “What matters

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1 for purposes of the Free Speech Clause is that we can see no 2 logical difference in kind between the invocation of Christianity 3 by the Club and the invocation of teamwork, loyalty, or patriotism 4 by other associations to provide a foundation for their lessons.” 5 Id. at 111 (emphasis added).

6 2. The Category of Worship Services 7 What, then, is worship? Is it an approach to or a way of 8 considering an otherwise permitted subject of discussion, or is it 9 a unique subject? Defendants argue that, while a film series on 10 childrearing, a student newspaper, and instruction on moral 11 development “no doubt dealt with . . . subject[s] otherwise 12 permissible,” Lamb’s Chapel, 508 U.S. at 394, worship is not simply 13 another standpoint on a secular subject. Worship is the sui generis 14 subject “that the District has placed off limits to any and all 15 speakers,” regardless of their perspective. Id. at 393.5 I agree.

5 1 Much of my discussion is consistent with and derives from the 2 very powerful opinion of Judge Cabranes, concurring in part and 3 dissenting in part in Bronx Household I, 127 F.3d at 221 (“Unlike 4 religious ‘instruction,’ there is no real secular analogue to 5 religious ‘services,’ such that a ban on religious services might 6 pose a substantial threat of viewpoint discrimination between 7 religion and secularism.”). The Ninth Circuit has reached the same 8 conclusion in an analogous case, Faith Ctr. Church Evangelistic 9 Ministries v. Glover, 462 F.3d 1194, 1211 (9th Cir. 2006) 10 (“Religious worship . . . is not a viewpoint but a category of 11 discussion within which many different religious perspectives 12 abound.”).

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1 Indeed, the Good News Club Court itself recognized this 2 subject matter, worship, as falling outside the boundary of its 3 viewpoint discrimination jurisprudence. In finding that the Club’s 4 religious instruction was just one viewpoint among many on moral 5 character and development, the Court emphasized the distinction 6 between this instructional “viewpoint” and the separate category 7 of “mere religious worship, divorced from any teaching of moral 8 values.” 533 U.S. at 112 n.4. And the Court’s majority specified 9 that the Second Circuit had not characterized the Club’s activities 10 as “religious worship.” Id. It was for this reason that – while 11 acknowledging that the Club’s activities would include prayer and 12 be of a “quintessentially religious” nature – the Court found no 13 basis for considering the group’s “use of religion as something 14 other than a viewpoint merely because of any evangelical message 15 it conveys.” Id. By contrast, the record in the case before us 16 makes clear that Bronx Household’s use of religion was expressly 17 for worship in itself, and not as a form of discussion of or 18 approach to other topics.6

6 1 Justice Souter, in dissent, argued that the Good News Club’s 2 activities constituted “an evangelical service of worship.” 533 3 U.S. at 138. Plaintiffs suggest that, because the Court 4 acknowledged Justice Souter’s conclusion and determined that 5 “[r]egardless of the label . . . what matters is the substance of 6 the Club’s activities,” id. at 112 n.4, the High Court must have 7 deemed “worship services” to be a viewpoint on an otherwise 8 permitted subject. This argument fails, however, because the 9 majority did no more than validate Justice Souter’s recitation of 10 the Club’s activities, not his label of them as a worship service. 11 Indeed, the Court expressly stated that these activities did not

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1 In applying for a permit to use school facilities, Bronx 2 Household’s pastor described the proposed activities with three 3 words: “Christian worship service.” (EBT Transcript of Robert Hall 4 (Jan. 24, 2005)). Despite subsequent changes in plaintiffs’ account 5 of these activities, Pastor Hall repeatedly confirmed that 6 “Christian worship service” is an “accurate description” of that 7 for which Bronx Household requested permission to use school 8 facilities. Id.7 Specifically, Bronx Household called its meetings 9 a “church service” and enumerated the activities engaged in as 10 including the “singing of Christian hymn and songs, prayer, 11 fellowship with other church members, Biblical preaching and 12 teaching, communion, sharing of testimonies and social fellowship 13 among the church members.” (First Affidavit of Robert Hall). 14 Plaintiff described these many “component activities that go to 15 make up a worship service,” as follows:

16 In our church service, we seek to give honor and praise to 17 our Lord and Savior Jesus Christ in everything that we do. To

1 “constitute mere religious worship, divorced from any teaching of 2 moral values.” Id.

7 1 Defendants note that in subsequent permit applications, 2 plaintiffs listed only the component activities of the Sunday 3 meetings and did so in order to avoid the term “worship.” Pastor 4 Hall stated: “As a tactical move, we decided beforehand to avoid 5 using the dreaded ‘W’ word for (shudder) worship. From their point 6 of view, the school rents it building to groups involved in 7 community, civic, and social activity. But worship, according to 8 them, is a uniquely religious activity for which there is no 9 ‘secular analog.’” Given Pastor Hall’s clear record statement of 10 what the facilities were to be used for, I need not, and do not, 11 consider whether defendants’ description of plaintiffs’ later 12 permit applications as mere “litigation strategy” is correct.

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1 that end we sing songs and hymns of praise to our Lord. We 2 read the Bible and the pastors teach from it because it tells 3 us about God, what He wants us to do and how we should live 4 our lives. We celebrate the Lord’s Supper (communion) each 5 Sunday . . . .

6 (emphasis added). And Hall expressly characterized his Sunday 7 morning meetings as worship services because “[w]e ascribe worth, 8 our supreme worth, to Jesus Christ.” 9 On appeal to us, however, plaintiffs and their amici argue 10 that the activities in worship services amount only to the 11 expression of a viewpoint on the discussions of social, civic, and 12 community welfare subjects as to which “thousands of permits have 13 been granted [by defendants] to diverse groups, including sports 14 leagues, Legionnaire Greys, Boy and Girl Scouts, community 15 associations, and a college for holding English instruction.” In 16 doing this, plaintiffs challenge, in three ways, the 17 characterization of worship as a unique subject. First, they claim 18 that the activities composing their worship services are the same 19 as those involved in the religious instruction protected as a 20 viewpoint in Good News Club. Second, plaintiffs argue the church’s 21 worship services “parallel” the ceremonies and rituals conducted by 22 other groups who are granted access to defendants’ schools. In this 23 respect, they claim their “worship” services stand in the same 24 relationship to these permitted rituals as the moral development 25 lessons taught by the Boy Scouts stood, according to the Good News 26 Club Court, to the lessons in moral development taught from a

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1 religious perspective by the Good News Club. Third, plaintiffs 2 contend, based on Supreme Court precedent, that there can be no 3 intelligible content to the distinction between worship and other 4 religious speech. I believe all three arguments are unavailing.

5 (i) 6 In Good News Club the Court held that the religious 7 instruction under consideration expressed a protected viewpoint on 8 the permitted subjects of instruction, i.e., character and moral 9 development, and only on these. The Court specifically concluded 10 that Milford had interpreted “its policy to permit discussions of 11 subjects such as child rearing, and of the ‘development of 12 character and morals.’” 533 U.S. at 108; see also id. (holding 13 that, according its “Community Use Policy” establishing the limited 14 forum, “there is no question that teaching morals and character 15 development to children is a permissible purpose under Milford’s 16 policy”). And the Court’s reasoning confirmed that the boundary of 17 its ruling must be defined by the otherwise permitted subject 18 matter at stake. See, e.g., 533 U.S. at 111 (“[W]hen the subject 19 matter is morals and character, it is quixotic to attempt a 20 distinction between religious viewpoints and religious subject 21 matters.”) (quoting 202 F.3d at 512 (Jacobs, J., dissenting) 22 (emphasis added)). In the case at bar, by contrast, the subject, 23 “worship,” is not a viewpoint on a “subject matter[,] morals and

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1 character,” id.; the subject is not a lecture or film about 2 childrearing or family values; and the subject is not a variety of 3 topics for journalistic exploration that the defendants permitted, 4 except when they are undertaken from a religious perspective. 5 Were we to follow plaintiffs’ construction of Good News Club 6 and consider worship to be just a religious viewpoint on the 7 subject of the welfare of the community, we would, whenever speech 8 implicates religion, eviscerate the Supreme Court’s distinction 9 between viewpoint and the subject matter to which that viewpoint 10 or approach is applied. That is not the meaning of Good News Club, 11 and such a meaning severely misunderstands the nature of worship. 12 To be sure, some of the same activities that were part of the 13 religious instruction validated in Good News Club are included in 14 the worship services that Bronx Household seeks to conduct. The 15 record confirms that the church’s proposed activities included the 16 singing of Christian hymns and songs along with Biblical preaching 17 and teaching. But the Good News Club Court sanctioned such 18 activities, of a “quintessentially religious nature,” only because 19 they could “also be characterized properly as” the viewpoint from 20 which students were instructed in moral and character development. 21 533 U.S. at 111. The worship services before us today cannot be 22 properly so characterized. For, as Pastor Hall acknowledged, even 23 though the church may “do the same things that a Bible study group 24 does,” significant differences separate the subject of worship

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1 services from moral instruction given from a religious viewpoint: 2 “The Bible study club would not administer the sacraments of 3 baptism and the Lord’s supper. That would be a big difference.” 4 (ii) 5 Worship services, moreover, are not in any sense simply the 6 religious analogue of ceremonies and rituals conducted by other 7 associations that are allowed to use school facilities. Indeed, 8 holding that worship is only an agglomeration of rites would be a 9 judicial finding on the nature of worship that would not only be 10 grievously wrong, but also deeply insulting to persons of faith. As 11 one such person, I find the notion that worship is the same as 12 rituals and instruction to be completely at odds with my 13 fundamental beliefs. Prayer and worship services are not religious 14 viewpoints on the subjects addressed in Boy Scouts rituals or in 15 Elks Club ceremonies. Worship is adoration, not ritual; and any 16 other characterization of it is both profoundly demeaning and 17 false. 18 Not surprisingly, therefore, Pastor Hall’s own testimony 19 belies plaintiffs’ claim that they seek to conduct only the same 20 viewpoint-expressive activities as those of other groups discussing 21 permitted subjects. Hall wrote and distributed an article to church 22 members pointedly distinguishing the church from such other clubs 23 or associations. Unlike an “Ecclesiastical club” or a “political 24 club,” Pastor Hall explained, “the church [i]s a covenant

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1 community”; the church is “not a group of people who have a common 2 interest in the same way that stamp collecting and coin collecting 3 bring people together.” And Hall explicitly contrasted his group’s 4 meetings with those of the Boy Scouts whose rituals – flag 5 ceremonies, the Pledge of Allegiance, and the Scout Oath – “might 6 be a parallel, but [are] different”: “We engage in the teaching and 7 preaching of the word of God. We administer the sacraments of 8 baptism and the Lord’s supper. Those would be the differences. We 9 sing hymns. We sing Christian songs. We pray.” 10 One cannot read what Pastor Hall is saying – or for that 11 matter virtually any religious description of worship – 12 sympathetically, without concluding that to worship is not only 13 more than engaging in rituals, but that it is categorically 14 different. In other words, it would be absurd to characterize the 15 Scouts as worshipping the teachings of Lord Baden-Powell, the 16 founder of the Scouts movement, simply because Scout ceremonies and 17 rituals ascribe worth to his message. What the Scouts are doing and 18 what worshippers do, are categorically different!

19 (iii) 20 Plaintiffs base their final argument – that there is no 21 difference between worship and other forms of religious speech – 22 on the Supreme Court’s ruling in Widmar v. Vincent, 454 U.S. 263 23 (1981). Widmar held that worship, like all other religious

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1 expression, is protected under the Free Speech Clause of the First 2 Amendment. Of course it is. The Widmar majority rejected the claim 3 of the Justices in “dissent . . . that ‘religious worship’ is not 4 speech generally protected by the ‘free speech’ guarantee,” 454 5 U.S. at 269 n.6, and rightly so. But that is not the issue before 6 us. 7 The Widmar Court was concerned solely with whether worship was 8 religious speech, and held that it was. The Court did not consider 9 whether worship was speech of a unique sort, a subject of address 10 that transcended and was different in kind from the subjects whose 11 discussion from a religious viewpoint the Court protected in Good 12 News Club, Rosenberger, and Lamb’s Chapel. As a result, the Widmar 13 Court certainly did not conclude that the exclusion of worship 14 constituted viewpoint discrimination. It understandably held that 15 a university’s exclusion of “religious worship and religious 16 discussion” from school facilities was impermissible content 17 discrimination in that public forum. 454 U.S. at 265, 269-70. 18 Consequently, plaintiffs’ invocation of Widmar to show that worship 19 cannot be a separate subject of speech is unavailing. 20 21 3. Must Worship be Religious? 22 The bulk of this opinion has been written on the premise that 23 worship is always a religious matter. But I am not sure there 24 cannot be secular as well as religious worship. When people speak

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1 of “worshipping” mammon, sex, or art, are they simply speaking 2 metaphorically, or are they expressing a relationship of adoration 3 that is the secular equivalent of religious worship and is of a 4 different order from participating in ritual or ceremony? While the 5 answer to that question seems to me to be anything but clear, in 6 the end a resolution does not matter for this decision. 7 If we treat worship as being solely religious, then the first 8 provision in the Board’s regulation – barring use of the school for 9 “religious worship services” – is a trivial redundancy that does 10 not affect worship’s status as sui generis. If, instead, we treat 11 worship as something that can also be secular, then the Board’s 12 exclusion of religious (as against secular) worship is clearly 13 invalid. See Good News Club, 533 U.S. 98. But the second part of 14 the Board’s regulation, which bars use of the school “as a house of 15 worship,” nevertheless remains in force. For it excludes religious 16 and secular worship alike. Assuming arguendo, therefore, that 17 secular worship exists, that provision does not distinguish between 18 religious and secular approaches, but instead bars the whole 19 category. Accordingly, it constitutes content rather than viewpoint 20 discrimination. 21 The record is undisputed that plaintiffs wish to use the 22 school facilities as a house of worship. It follows that, if 23 content discrimination is permitted, then Bronx Household can be 24 excluded.

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Reasonableness of Content Discrimination 1 D. 2 3 Content discrimination, even in a limited public forum, must

4 be reasonable in light of the purposes of the forum to be 5 constitutionally permitted. Perry Educ. Ass’n, 460 U.S. at 49. 6 Given our prior holdings, the Board’s exclusion of worship services 7 from school facilities meets this requirement. 8 In Bronx Household I, this court stated:

9 We think that it is reasonable in this case for a state and a 10 school district to adopt legislation and regulations denying 11 a church permission to use school premises for regular 12 religious worship. We think that it is reasonable for state 13 legislators and school authorities to avoid the identification 14 of a middle school with a particular church. We think that it 15 is reasonable for these authorities to consider the effect 16 upon the minds of middle school children of designating their 17 school as a church. And we think that it is a proper state 18 function to decide the extent to which church and school 19 should be separated in the context of the use of school 20 premises for regular church services. Education, after all, is 21 a particularly important state function, and the use of school 22 premises is properly a matter of particular state concern. 23 Finally, it is certainly not unreasonable to assume that 24 church services can be undertaken in some place of public 25 assembly other than a public middle school in New York City.

26 127 F.3d at 214. We construed the purposes of the “school” limited 27 public forum in the same way in Deeper Life Christian Fellowship v. 28 Board of Education of the City of New York, 852 F.2d 676, 680 (2d 29 Cir. 1988); see also Deeper Life Christian Fellowship v. Sobol 30 [Deeper Life II], 948 F.2d 79, 83 (2d Cir. 1991) (“We follow our 31 prior opinion in Deeper Life I in holding that under § 414, ‘access 32 to the school property is permitted only where it serves the

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1 interests of the public in general, rather than that of sectarian 2 groups . . . .’”). 3 Similarly, we rejected the claim of the Good News Club that 4 its exclusion – even if it constituted only content discrimination 5 – would be unreasonable because “there is little risk that children 6 would confuse the Club’s use of school facilities with the school’s 7 endorsement of the religious teachings.” We wrote:

8 This argument is foreclosed by precedent. In Bronx Household 9 of Faith, we stated that “it is a proper state function to 10 decide the extent to which church and school should be 11 separated in the context of the use of school premises.” 12 Furthermore, “it is reasonable for state legislators and 13 school authorities to avoid the identification of a . . . 14 school with a particular church.”

15 202 F.3d at 509 (quoting Bronx Household I, 127 F.3d at 214) 16 (internal citation omitted). 17 Although the Supreme Court reversed our holding that Milford’s 18 restriction was viewpoint neutral, the Court did not address our 19 conclusion that were the restriction only content-based, it would 20 be reasonable in light of the purposes of the limited school forum. 21 Accordingly, we remain bound by our finding in Bronx Household I 22 that the content-based restriction in SOP § 5.11 is reasonable.8

8 1 Moreover, the record discloses several grounds on which 2 defendants’ exclusion of worship services, if only content-based, 3 can reasonably rest. First, defendants pointed to the concern that 4 “[b]ecause most activities that occur in schools during nonschool 5 hours are, in fact, sponsored by the school, . . . children are 6 unlikely to understand that weekly worship services are not 7 sponsored or supported by the school.” (Brief of Petitioners at 8 18); see also Declaration of Carmen Farina (testifying to 9 children’s confusion about the church’s relationship with the

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1 school district after the preliminary injunction compelled access); 2 Declaration of Thomas Goodkind (same); Declaration of Veronica 3 Najjar (same). Deputy Chancellor Fiorina testified that “[a] 4 congregation’s presence in a school may be particularly confusing 5 for children”: 6 I know from my training and experience that children – 7 especially elementary school or middle school children – . . 8 . are unlikely to understand that a church that uses their 9 school for its religious worship services is not sponsored or 10 supported by the school. . . . Young children . . . could 11 easily and understandably conclude that the religious 12 institution is supported by the school. 13 Second, defendants asserted that members of the community who 14 are not church members would feel “marginalized, confused, and shut 15 out by the long-term presence of weekly congregational worship 16 services in their local public school.” In this respect, the record 17 reflects many complaints sent to the Board by parents and other 18 community members expressing concerns that public school buildings 19 in their neighborhoods were becoming identified with the church and 20 its religious worship services. We need not resolve here how these 21 complaints would inform an examination of a putative challenge, 22 under the Establishment Clause, to the use of the school as a house 23 of worship. I take note of this concern only as it constitutes an 24 additional reasonable basis for defendants’ content-based 25 restriction of worship services given the purposes of this limited 26 forum. 27 Finally, it was reasonable for the Board to determine not to 28 open the use of its limited forum to a class of speech which, in 29 practice, could only be engaged by some but not all religions. 30 Defendants point out that “certain denominations and congregations 31 are shut out of the forum because their day of worship is not 32 Sunday.” (Reply Brief of Petitioners at 20). Schools are schools, 33 and are in session during all weekdays. Traditionally, and without 34 any view towards discriminating between one religion and another, 35 many school activities also take place on Saturdays. We need not 36 here concern ourselves with the historical reasons why the school 37 week is such as it is and the possible link to Christianity of that 38 schedule. That long has been settled. See, e.g., Gallagher v. Crown 39 Kosher Super Market of Mass., 366 U.S. 617 (1961); Two Guys from 40 Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961). As a 41 result, school facilities are only limitedly available during the 42 week or even on Saturday. That means that if the facilities are to 43 be used for worship, which in almost all religions takes place most 44 intensely on a particular day of the week, permission to use school 45 facilities for worship must, as a practical matter, favor Christian 46 over other – especially Jewish and Muslim – religious

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1 III. CONCLUSION

2 3 I would hold that defendants’ exclusion of worship services

4 is viewpoint neutral. Further, seen only as a content-based 5 restriction, I would find that the exclusion is reasonable in light 6 of the purposes of the limited public forum involved. Given the 7 positions taken by the other members of this panel, however, my 8 disposition is limited to holding that the district court’s 9 permanent injunction and grant of summary judgment are VACATED, and the case is REMANDED for further developments.

1 organizations. We need not decide here whether this lack of 2 neutrality among religions would implicate a potential violation of 3 the Establishment Clause that would be sufficiently overriding as 4 to permit discrimination on the basis of viewpoint. For the 5 question now before us is not viewpoint discrimination, but simply 6 the existence of a reasonable justification for content-based 7 rules. And defendants’ desire to avoid seeming to favor some 8 religions is a reasonable ground for limiting this forum only to 9 speech that does not include the category “worship.”

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1 LEVAL, Circuit Judge: 2 This appeal is brought by the defendants, the Board of 3 Education of the City of New York (“the Board”) and Community 4 School District No. 10 (“the School District”) (collectively, “the 5 City” or “the City defendants”), from a permanent injunction 6 entered by the District Court for the Southern District of New York 7 (Preska, J.). The injunction bars the City from enforcing a newly 8 proposed Standard Operating Procedure § 5.11 (“Proposed SOP 9 § 5.11”) so as to exclude the plaintiff, Bronx Household of Faith 10 (“Bronx Household”), from using a City-owned school building for 11 Sunday church services. Proposed SOP § 5.11 would prohibit the use 12 of New York City public schools for “religious worship services” 13 or as a “house of worship.” The district court, relying on the 14 Supreme Court’s ruling in Good News Club v. Milford Central School, 15 533 U.S. 98 (2001), found that the City’s enforcement of Proposed 16 SOP § 5.11 to deny Bronx Household permission to use school 17 facilities for its services would violate the First Amendment. 18 In ruling on the City defendants’ appeal from the judgment, 19 our court divides three ways. Judge Walker would affirm, finding 20 that the district court was correct in enjoining enforcement of 21 Proposed SOP § 5.11. Judge Calabresi would vacate the judgment, 22 finding it to be in error. I would also vacate the judgment but 23 for a different reason, expressing no opinion whether the judgment 24 was based on a correct or incorrect perception of the substantive

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1 standards of the First Amendment. In my view, the judgment should 2 be vacated because there was no ripe dispute between the parties 3 involving the constitutionality of Proposed SOP § 5.11 which the 4 court could appropriately adjudicate. 5 At the time of the district court’s judgment, Bronx Household 6 was suffering no harm by reason of the City’s proposed adoption of 7 the new SOP. The proposed rule had never been invoked by the City 8 as a basis for denying Bronx Household access to school facilities. 9 Indeed it had not even been adopted, but was only a proposed rule 10 that had been provisionally approved by City officials. Rather, 11 a former version of SOP § 5.11 (“Old SOP § 5.11”) had been invoked 12 to exclude Bronx Household from using school facilities. 13 Litigation over the exclusion under Old SOP § 5.11 had resulted in 14 a preliminary injunction prohibiting enforcement of that provision 15 to exclude Bronx Household. Subsequently, in asking the district 16 court to make its final adjudication on the basis of the new 17 proposed SOP, rather than with regard to the SOP which had been 18 invoked in denying Bronx Household’s application, the City asserted 19 that, if the preliminary injunction against it were lifted and it 20 were granted summary judgment (effectively allowing the City to 21 exclude Bronx Household under the old standard), the City would 22 then invoke Proposed SOP § 5.11 to deny Bronx Household’s future 23 applications. Given the contingent nature of the City’s stated 24 intentions, Proposed SOP § 5.11 may never be enforced against Bronx

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1 Household. Indeed, it may never be adopted. 2 There was no present controversy between the parties involving 3 application of the new standard. The question whether the City 4 might constitutionally exclude Bronx Household in reliance on 5 Proposed SOP § 5.11 was speculative and hypothetical. In fact, 6 notwithstanding the City’s prediction of how it would rule on an 7 application which had never been made, there is sufficient 8 difference between the new standard and the old rule upon which the 9 City previously denied Bronx Household’s application as to leave 10 substantial uncertainty as to how such an application might play 11 out. 12 Especially in view of the undesirablity of rushing into 13 unnecessary constitutional adjudications, the sensitive 14 constitutional question of whether Proposed SOP § 5.11 violates the 15 First Amendment would be better adjudicated by a court after the 16 rule has been adopted and an administrative proceeding has 17 explicitly confronted and ruled on its applicability to the 18 activities of Bronx Household. No party would suffer any 19 meaningful harm if the court deferred adjudication until such time. 20 In my view, the question whether the City could, consistent with 21 the First Amendment, exclude Bronx Household from using school 22 property under authority of Proposed SOP § 5.11 was therefore 23 unripe for adjudication. Accordingly, I vote to vacate the 24 judgment. See National Park Hospitality Ass’n v. Dep’t of

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1 Interior, 538 U.S. 803, 808 (2003) (“[T]he question of ripeness may

2 be considered on a court’s own motion.”). 3 4 BACKGROUND

5 New York Education Law § 414 authorizes local school boards 6 to permit the use of school facilities by outside groups for, among 7 other activities, “social, civic and recreational meetings and 8 entertainments, and other uses pertaining to the welfare of the 9 community,” as long as such meetings are “non-exclusive” and “open 10 to the general public.” New York Educ. L. § 414(1)(c). Pursuant 11 to this law, the Board of Education promulgated a written policy 12 permitting the use of school facilities by outside groups for these 13 “social, civic and recreational” meetings. Standard Operating 14 Procedure § 5.6.2. The written policy also included Standard 15 Operating Procedure (“SOP”) § 5.9, which prohibited the use of 16 school property for “religious services or religious instruction 17 on school premises after school.”1 Bronx Household of Faith v.

1

1 SOP § 5.9 provided: 2 3 No outside organization or group may be allowed to 4 conduct religious services or religious instruction on 5 school premises after school. However, the use of 6 school premises by outside organizations or groups 7 after school for the purpose[] of discussing religious 8 material or material which contains a religious 9 viewpoint or for distributing such material is 10 permissible. 11 12 Bronx Household of Faith v. Community School District No. 10, 127 13 F.3d 207, 210 (2d Cir. 1997).

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1 Community School District No. 10, 127 F.3d 207, 210 (2d Cir. 1997) 2 (“Bronx Household I”). 3 Bronx Household describes itself as an “urban church whose 4 primary purpose is to bring the Gospel of Jesus Christ to the 5 streets of New York.” See The Bronx Household of Faith, 6 http://www.bhof.org/bhof1.html (last visited June 22, 2007). The 7 current dispute between Bronx Household and the City began in 1994, 8 when Bronx Household applied to use space in a middle school 9 located in Community School District Number 10 for its Sunday 10 morning meetings. Bronx Household I, 127 F.3d at 211; Bronx 11 Household of Faith v. Board of Education, 331 F.3d 342, 345 (2d 12 Cir. 2003) (“Bronx Household II”). Concluding that the activities 13 described in Bronx Household’s application would constitute 14 “religious services or religious instruction” and would therefore 15 violate § SOP 5.9, the City denied Bronx Household’s application. 16 Bronx Household I, 127 F.3d at 211. 17 Bronx Household brought suit to challenge the denial. The 18 district court found no First Amendment violation and thus granted 19 summary judgment in favor of the Board and School District. Bronx 20 Household of Faith v. Community School Dist. No. 10, No. 95 Civ. 21 5501, 1996 WL 700915, at *6 (S.D.N.Y. Dec. 5, 1996). On appeal, 22 we affirmed the judgment. Bronx Household I, 127 F.3d at 217. We 23 found that the Board and School District had created a limited 24 public forum by opening school facilities only to certain types of

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1 speakers and subjects, and that the exclusion of religious services 2 and religious instruction was viewpoint neutral and reasonable in 3 light of the purposes served by the forum. Id. at 211-15; see also 4 id. at 215 (“[R]eligious worship services may well be considered 5 the ultimate in speech from a religious viewpoint in an open forum. 6 But the question is whether a distinction can be drawn between it 7 and other forms of speech from a religious viewpoint that District 8 # 10 has elected to allow in the limited forum of a public middle 9 school. We think it can.”). 10 The Supreme Court denied certiorari, Bronx Household of Faith 11 v. Board of Education, 523 U.S. 1074 (1998), and the dispute then 12 lay dormant for some years. It was resurrected in 2001, after the 13 Supreme Court issued its decision in Good News Club, which was 14 arguably incompatible with our decision in Bronx Household I. 15 In Good News Club, the Supreme Court ruled that it was 16 unconstitutional for another school district in the State of New 17 York to exclude from its facilities a “private Christian 18 organization for children ages 6 to 12” which had requested 19 permission to use the school during afterschool hours to sing 20 songs, read Bible lessons, memorize scripture, and pray. 533 U.S. 21 at 103. Milford Central School had enacted a “community use 22 policy” similar to the City’s Standard Operating Procedures, 23 whereby school facilities could be used for “social, civic and 24 recreational meetings and entertainment events, and other uses

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1 pertaining to the welfare of the community, provided that such uses 2 shall be nonexclusive and shall be opened to the general public,” 3 but could not be used “by any individual or organization for 4 religious purposes,” which school district officials interpreted 5 as prohibiting “religious worship” or “religious instruction.” Id. 6 at 103-04 (quotation marks omitted). Noting that “any group that 7 ‘promote[s] the moral and character development of children’ is 8 eligible [under Milford’s policies] to use the school building,” 9 and that “the [Good News] Club teaches morals and character 10 development to children,” albeit from “a religious standpoint,” the 11 Court concluded that exclusion of the Good News Club from school 12 facilities was unconstitutional viewpoint discrimination, id. at 13 108-10 (first alteration in original). 14 Taking comfort from the Supreme Court’s decision in Good News 15 Club, Bronx Household again requested to use school facilities for 16 Sunday services. Bronx Household II, 331 F.3d at 346. The 17 application was again denied, pursuant to the same SOP (since 18 renumbered as § 5.11). Id. at 346-48. Bronx Household again 19 brought suit to challenge the denial. This time the district court 20 granted a preliminary injunction, provisionally requiring the City 21 defendants to allow Bronx Household to use the school during the 22 pendency of the litigation. Bronx Household of Faith v. Board of 23 Education, 226 F. Supp. 2d 401, 427 (S.D.N.Y. 2002). On appeal, 24 we affirmed the preliminary injunction. Bronx Household II, 331

46

1 F.3d at 354. 2 Bronx Household then moved in the district court for summary 3 judgment to convert the preliminary injunction into a permanent 4 ruling. The City cross-moved for summary judgment in its favor. 5 Up to this point, all adjudications had been with reference to SOP 6 § 5.9, renumbered as SOP § 5.11 (in other words, Old SOP § 5.11). 7 The City, however, wrote to the district court advising that the 8 City “seek[s] to implement a policy with language that varies from 9 the policy language that has been preliminarily enjoined.” The 10 City explained that in contrast with the old rule, which prohibited 11 use of school property for “religious services or religious 12 instruction,” the Proposed SOP § 5.11 would prohibit use of school 13 property for “religious worship services, or otherwise using a 14 school as a house of worship.”2 The City told the court that with 15 respect to the motions for summary judgment, the City would be 16 defending the new policy. The district court expressed doubt 17 whether, given Article III’s limitations on federal court

2

1 Proposed SOP § 5.11 provides: 2 3 No permit shall be granted for the purpose of holding 4 religious worship services, or otherwise using a school 5 as a house of worship. Permits may be granted to 6 religious clubs for students that are sponsored by 7 outside organizations and otherwise satisfy the 8 requirements of this chapter on the same basis that 9 they are granted to other clubs for students that are 10 sponsored by outside organizations. 11 12 Bronx Household of Faith v. Board of Educ. of City of New York, 13 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005).

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1 jurisdiction, it could properly rule on the constitutionality of 2 a proposed SOP, which had not been invoked against Bronx Household. 3 Seeking to allay the court’s doubts, the City explained in a 4 letter:

5 Should [the City] defendants prevail in their motion for 6 summary judgment and the preliminary injunction Order be 7 vacated, then any future application by [Bronx 8 Household] to hold their worship services at P.S. 15 . 9 . . will be denied [pursuant to the proposed SOP]. 10 11 Bronx Household of Faith v. Board of Educ. of City of New York

12 (“Bronx Household III”), 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005) 13 (quoting the City’s letter of August 17, 2005).3 The district 14 court was thereby persuaded that it was presented with a 15 justiciable controversy involving the application of Proposed SOP 16 § 5.11. The court then granted summary judgment in favor of Bronx 17 Household, permanently enjoining the City from enforcing the 18 proposed SOP against Bronx Household. Id. at 601. The City 19 defendants then brought this appeal.

3

1 The letter stated: 2 3 Plaintiffs’ use of P.S. 15 for the Bronx Household of 4 Faith’s regular worship services is prohibited under 5 the revised section 5.11. Defendants are not currently 6 enforcing the revised section 5.11 (or advising the 7 field of this change) because of the preliminary 8 injunction Order that was entered in this case. Should 9 defendants prevail in their motion for summary judgment 10 and the preliminary injunction Order be vacated, then 11 any future application by plaintiffs to hold their 12 worship services at P.S. 15 or any other school will be 13 denied. 14 15 Bronx Household III, 400 F. Supp. 2d at 588.

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1 DISCUSSION 2 In my view, the district court’s first instincts were sound, 3 and the court was led astray by the City’s speculation on possible 4 future adoption and enforcement of the proposed SOP. In my view, 5 no ripe dispute involving the enforcement of Proposed SOP § 5.11 6 was before the court. 7 8 I. Principles of Standing and Ripeness That Apply to This Case 9 Article III of the Constitution limits the judicial power of 10 the federal courts to the adjudication of “cases” and 11 “controversies.” Aspects of this generalized limitation are 12 classified in terms of whether a plaintiff has standing, or whether 13 a dispute is ripe. 14 Although standing itself has multiple aspects, see Flast v. 15 Cohen, 392 U.S. 83, 99 (1968) (noting that standing has been called 16 one of the most amorphous concepts in public law), its “core 17 component” is that, in order to have claims adjudicated by a 18 federal court, the plaintiff “must allege personal injury fairly 19 traceable to the defendant’s allegedly unlawful conduct and likely 20 to be redressed by the requested relief,” Allen v. Wright, 468 U.S. 21 737, 751 (1984). While the requirements implicit in the notion of 22 “injury” are “not susceptible of precise definition,” id., they 23 have been described in terms of whether the plaintiff has a 24 “personal stake in the outcome,” and whether the injury in question

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1 is “particular [and] concrete,” and whether it results “direct[ly]” 2 from the defendant’s actions, United States v. Richardson, 418 U.S. 3 166, 179-80 (1974) (quotation marks omitted). “It is an 4 established principle that to entitle a private individual to 5 invoke the judicial power [of the United States courts] to 6 determine the validity of executive or legislative action he must 7 show that he has sustained or is immediately in danger of 8 sustaining a direct injury as the result of that action and it is 9 not sufficient that he has merely a general interest common to all 10 members of the public.” Id. at 177-78 (quoting Ex parte Levitt, 302 11 U.S. 633, 634 (1937) (quotation marks omitted)). 12 Ripeness overlaps in some respects with standing, “most 13 notably in the shared requirement that the [plaintiff’s] injury be 14 imminent rather than conjectural or hypothetical,” Brooklyn Legal 15 Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2d Cir. 16 2006), and courts at times use either term to refer to this 17 requirement. Nonetheless, the central concerns of ripeness 18 doctrine are somewhat distinct from standing. Standing, in its 19 “fundamental aspect,” “focuses on the party seeking to get his 20 complaint before a federal court” and whether that party suffers 21 a sufficiently direct and concrete injury to be heard in complaint. 22 Flast, 392 U.S. at 99. By contrast, the fundamental concern of 23 ripeness is whether at the time of the litigation the issues in the 24 case are “‘fit’ for judicial decision.” National Park Hospitality

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1 Ass’n v. Dep’t of the Interior, 538 U.S. 803, 814 (2003) (Stevens, 2 J., concurring); see also Regional Rail Reorganization Act Cases, 3 419 U.S. 102, 140 (1974) (“ripeness is peculiarly a question of 4 timing”). The concept of ripeness assumes that the relationship 5 between the parties might at some point ripen into an injury 6 sufficiently direct and realized to satisfy the requirements of 7 Article III standing. It recognizes, however, that some disputes 8 mature in stages, going through preliminary phases during which the 9 injury is as yet but a speculative possibility, too remote or 10 hypothetical to warrant present submission to a federal court. 11 Such a dispute is considered as yet “unripe” for adjudication. 12 In the present dispute, there can be no doubt that if the City 13 were to reject Bronx Household’s application to use school property 14 on the ground that such use would violate Proposed SOP § 5.11, 15 Bronx Household’s claim that such a rejection violates the First 16 Amendment would fully satisfy the requirements of standing and 17 ripeness. In those circumstances, the City’s invocation of its SOP 18 to deny a permit would be causing an immediate, direct, and 19 concrete injury to Bronx Household. The concern I express is 20 whether any dispute over the application of Proposed SOP § 5.11 has 21 as yet caused any ripe injury to Bronx Household. I accordingly 22 will focus in the following discussion on those decisions which 23 concern the ripeness of the dispute, regardless of whether they 24 speak in terms of “ripeness” or of “standing.”

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1 In its leading case on these concerns, Abbott Laboratories v. 2 Gardner, the Supreme Court explained that the “basic rationale” of 3 the doctrine of ripeness is to “prevent the courts, through 4 avoidance of premature adjudication, from entangling themselves in 5 abstract disagreements” and to prevent “judicial interference” 6 until the effects of a defendant’s actions are “felt in a concrete 7 way” by the plaintiffs. Abbott, 387 U.S. 136, 148-49 (1967), 8 overruled on other grounds, Califano v. Sanders, 430 U.S. 99 9 (1977). As outlined in Abbott, the ripeness inquiry generally 10 requires a federal court to consider “the fitness of the issues for 11 judicial decision and the hardship to the parties of withholding 12 court consideration.” Id. at 149. 13 The plaintiffs in Abbott, who were proprietary pharmaceutical 14 manufacturers, brought a challenge to a Food and Drug 15 Administration regulation which required that each time a 16 proprietary drug’s brand name appeared on a label, the generic name 17 had to be given as well. Id. at 138. The regulations, which were 18 already in effect when the plaintiffs brought suit but had not been 19 enforced against the plaintiffs in any way, carried heavy potential 20 criminal and civil sanctions for violations. Id. at 151-52. The 21 Court found that the claim was ripe for adjudication. It noted 22 that the question presented was a “purely legal one,” the 23 regulation constituted “final agency action” within the meaning of 24 the Administrative Procedures Act, id. at 149 (quotation marks

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1 omitted), and the impact of the regulations on the plaintiffs was 2 “sufficiently direct and immediate as to render the issue 3 appropriate for judicial review,” id. at 152. In particular, the 4 Court noted that the regulation’s mere existence put the plaintiffs 5 “in a dilemma” – they had to either comply with the regulations, 6 incurring substantial economic costs to alter their labeling in a 7 manner likely to harm their sales, or risk severe sanctions. Id. 8 For more or less the same reasons, the Court found that the 9 plaintiffs had standing to sue. Id. at 154. 10 On the same day, the Supreme Court dismissed a companion case, 11 Toilet Goods Association v. Gardner, 387 U.S. 158 (1967), which 12 illustrates the flip-side of the coin. The plaintiffs, a group of 13 cosmetics manufacturers, challenged an FDA regulation which 14 required the plaintiffs to grant the agency access to inspect their 15 manufacturing facilities, processes, and formulae. Id. at 161. 16 The FDA had as yet made no demand under the regulations for access 17 to the plaintiffs’ facilities. A number of questions of 18 application remained unresolved, including what enforcement 19 problems the FDA had encountered that would justify such 20 inspections, the reasons that the FDA Commissioner might give to 21 justify a particular order of inspection, and the safeguards the 22 agency would devise to protect trade secrets. Id. at 163-64. The 23 Court dismissed the case as unripe, explaining: “We believe that 24 judicial appraisal of these factors is likely to stand on a much

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1 surer footing in the context of a specific application of this 2 regulation than could be the case in the framework of the 3 generalized challenge made here.” Id. at 164. Of special 4 importance, the Court noted the lack of “hardship” to the parties 5 from postponing judicial review until “more light may be thrown on 6 the Commissioner’s statutory and practical justifications for the 7 regulation”: “This is not a situation in which primary conduct is 8 affected . . . . [N]o advance action is required . . . [and] no 9 irremediable adverse consequences flow from requiring a later 10 challenge.” Id. at 164. 11 In Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), 12 a class of alien plaintiffs challenged certain Immigration and 13 Naturalization Service regulations which had raised barriers to an 14 undocumented alien’s ability to obtain authorization for permanent 15 residency. The Court found the issues presented to be unripe (at 16 least as to some plaintiffs) largely because the regulations at 17 issue, as in Toilet Goods, “impose[d] no penalties for violating 18 any newly imposed restriction,” but rather “limit[ed] access to a 19 benefit . . . not automatically bestowed on eligible aliens.” Id. 20 at 58 (emphasis added). In other words, a plaintiff’s claim was 21 unripe unless the alien had taken all possible steps to gain access 22 to the immigration benefit, and had been denied the benefit on 23 account of the disputed regulation. Id. at 59. 24 Particularly illustrative is National Park Hospitality Ass’n

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1 v. Department of the Interior, 538 U.S. 803 (2003). The plaintiff, 2 an association of concessioners doing business in national parks, 3 sought pre-enforcement review of whether a National Park Service 4 regulation could exclude concession contracts from the protective 5 reach of the Contract Disputes Act of 1978. Id. at 804-05. The 6 Court concluded that the plaintiff’s claims were not yet ripe. As 7 in Toilet Goods, the Court noted the lack of hardship to the 8 parties from delaying review, given that the regulation does not 9 “command anyone to do anything or to refrain from doing anything,” 10 does not “grant, withhold, or modify any formal legal license, 11 power, or authority,” does not “subject anyone to any civil or 12 criminal liability,” and creates “no legal rights or obligations.” 13 Id. at 809 (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 14 726, 733 (1998) (quotation marks omitted)). The Court also found 15 the issue unfit for judicial review, given the parties’ explicit 16 or implicit acknowledgment that different types of concession 17 contracts might present different legal questions. Id. at 812. 18 As a result, the Court found that “further factual development 19 would ‘significantly advance our ability to deal with the legal 20 issues presented,’” and therefore adjudication should “await a 21 concrete dispute about a particular concession contract.” Id. 22 (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 23 U.S. 59, 82 (1978)). 24 The concurring and dissenting Justices in National Park agreed

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1 with the framework of the majority’s ripeness analysis, while 2 disagreeing with some of the majority’s conclusions. The 3 concurring opinion would have found that the case was ripe for 4 review but that the plaintiff lacked standing. See National Park, 5 538 U.S. at 814-17 (Stevens, J., concurring). Justice Breyer’s 6 dissenting opinion would have found that the dispute satisfied both 7 standing and ripeness requirements. In his view, the challenged 8 regulation “causes a present injury” that is “immediate” and 9 “concrete,” in the form of higher contract implementation costs 10 which force concessioners bidding for government contracts to pay 11 more to obtain a contract than they believe it is worth. Id. at 12 818-19 (Breyer, J., dissenting). 13 In concluding that a case is “unripe,” courts often mean that 14 the dispute has not yet matured into a “case” or “controversy” 15 within the meaning of Article III, so that the court is without 16 jurisdiction to enter judgment. See, e.g., Marchi v. Bd. of Coop. 17 Educ. Servs., 173 F.3d 469, 478 (2d Cir. 1999) (describing and 18 applying ripeness analysis as a constitutional prerequisite, 19 without discussing prudential concerns). Courts have also, 20 however, invoked the ripeness doctrine to justify dismissal in 21 circumstances where adjudication would not necessarily have 22 exceeded the courts’ constitutional power but the prospect of 23 injury was nonetheless sufficiently remote or conjectural that the 24 court considers it prudent not to exercise jurisdiction until the

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1 dispute has further ripened to produce a more palpable injury. 2 See, e.g., Simmonds v. I.N.S., 326 F.3d 351, 358, 361 (2d Cir. 3 2003) (finding that plaintiff’s claims “surely present a live case 4 or controversy,” but dismissing the petition on the grounds of 5 prudential unripeness). Although in many cases courts fail to 6 employ a strict taxonomy distinguishing constitutional from 7 prudential considerations, see, e.g., National Park, 538 U.S. at 8 808 (noting simply that ripeness doctrine derives from Article III 9 and from prudential considerations), other courts have 10 distinguished “prudential unripeness” from “constitutional

11 unripeness,” see Simmonds, 326 F.3d at 357.4

4

1 In Simmonds we explained these two aspects of ripeness as 2 follows: 3 4 These two forms of ripeness are not coextensive in 5 purpose. Constitutional ripeness is a doctrine that, 6 like standing, is a limitation on the power of the 7 judiciary. It prevents courts from declaring the 8 meaning of the law in a vacuum and from constructing 9 generalized legal rules unless the resolution of an 10 actual dispute requires it. But when a court 11 declares that a case is not prudentially ripe, it 12 means that the case will be better decided later and 13 that the parties will not have constitutional rights 14 undermined by the delay. It does not mean that the 15 case is not a real or concrete dispute affecting 16 cognizable current concerns of the parties within the 17 meaning of Article III. Of course, in deciding 18 whether “better” means later, the court must consider 19 the likelihood that some of the parties will be made 20 worse off on account of the delay. But that, and its 21 degree, is just one – albeit important – factor the 22 court must consider. Prudential ripeness is, then, a 23 tool that courts may use to enhance the accuracy of 24 their decisions and to avoid becoming embroiled in 25 adjudications that may later turn out to be 26 unnecessary or may require premature examination of,

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1 The ripeness principles elaborated in the foregoing cases 2 bear heightened importance when, as in the present case, the 3 potentially unripe question presented for review is a 4 constitutional question. “If there is one doctrine more deeply 5 rooted than any other in the process of constitutional 6 adjudication, it is that we ought not to pass on questions of 7 constitutionality . . . unless such adjudication is unavoidable.” 8 Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944). 9 The principle of constitutional avoidance is an integral part of 10 the ripeness analysis in such cases, and tilts the balance in 11 favor of finding a constitutional issue unripe for review. Poe v. 12 Ullman, 367 U.S. 497, 503-04 (1961) (“The various doctrines of 13 ‘standing,’ ‘ripeness,’ and ‘mootness’ . . . are but several 14 manifestations – each having its own ‘varied application’ – of the 15 primary conception that federal judicial power is to be exercised 16 to strike down legislation, whether state or federal, only at the 17 instance of one who is himself immediately harmed, or immediately 18 threatened with harm, by the challenged action.” (footnotes 19 omitted)). In cases involving the constitutionality of state

1 especially, constitutional issues that time may make 2 easier or less controversial. 3 4 Simmonds, 326 F.3d at 357. It is unclear to me why the Simmonds 5 Court believed that prudential ripeness requires that the parties 6 “will not have constitutional rights undermined by the delay.” 7 In my view, the undermining of any rights, and not only 8 constitutional rights, argues against a finding of unripeness.

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1 legislation the Supreme Court has therefore warned federal courts 2 to consider, before passing on the merits of the question, whether 3 “questions of construction, essentially matters of state law, 4 remain unresolved or highly ambiguous.” Rescue Army v. Municipal 5 Court of City of Los Angeles, 331 U.S. 549, 568, 574 (1947); cf. 6 Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997) 7 (“Warnings against premature adjudication of constitutional 8 questions bear heightened attention when a federal court is asked 9 to invalidate a State’s law, for the federal tribunal risks 10 friction-generating error when it endeavors to construe a novel 11 state Act not yet reviewed by the State’s highest court.”). 12 Jurisdiction should be exercised in such cases only when the 13 constitutional issues are presented “in clean-cut and concrete 14 form, unclouded by any serious problem of construction.” Rescue 15 Army, 331 U.S. at 584. 16 17 II. Adjudication of Proposed SOP § 5.11 18 The circumstances confronted by the district court when asked 19 to rule on the constitutionality of Proposed SOP § 5.11 are those 20 which have led courts to the conclusion that the case was unripe 21 for adjudication. 22

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1 A. Lack of Present Harm to the Party Opposing the Regulation 2 To start with two obvious propositions: (1) There is without 3 question a ripe controversy between the parties involving the 4 application of Old SOP § 5.11 to bar Bronx Household from using 5 school property. The fact, however, that one controversy between 6 the parties is ripe for adjudication does not mean that all 7 disputes between the parties present ripe questions. Without 8 doubt the district court could properly have entered a final 9 judgment on the constitutionality of Old SOP § 5.11. It is the 10 adjudication of the constitutionality of the new proposed SOP that 11 is problematic. (2) Had Proposed SOP § 5.11 been invoked by the 12 City as the basis for denying Bronx Household use of school 13 property, Bronx Household would have standing to challenge its 14 constitutionality, and the dispute would be ripe for adjudication. 15 This, however, has not happened. In fact, it appears the proposed 16 SOP has not even been adopted, and that the City is awaiting the 17 court’s judgment on its constitutionality before adopting it. 18 Not only has the City never relied on Proposed SOP § 5.11 to 19 deny Bronx Household’s application, but Bronx Household has never 20 even applied to use school property under the standards of 21 Proposed SOP § 5.11. Bronx Household has been excluded under the 22 standards of the predecessor SOP and has obtained a preliminary 23 injunction granting it provisional access to school property on 24 the basis of the probable unconstitutionality of that SOP. At

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1 present Bronx Household is therefore not being excluded from the 2 schools at all, much less by reason of the proposed SOP. 3 I recognize that a regulation can cause harm to a covered 4 entity even without being enforced. Thus in Abbott the Supreme 5 Court found that the FDA’s labeling regulation caused actual harm 6 to covered drug manufacturers even without being enforced, because 7 the manufacturer was required either to adopt a disadvantageous 8 change in its labeling practices or risk incurring serious 9 penalties and liabilities. See Abbott, 387 U.S. at 153 (“[W]here 10 a regulation requires an immediate and significant change in the 11 plaintiffs’ conduct of their affairs with serious penalties 12 attached to noncompliance, access to the courts . . . must be 13 permitted . . . .”); see also AT&T Corp. v. Iowa Utilities Bd., 14 525 U.S. 366, 386 (1999) (“When . . . there is no immediate effect 15 on the plaintiff’s primary conduct, federal courts normally do not 16 entertain pre-enforcement challenges . . . .”); Texas v. United 17 States, 523 U.S. 296, 301 (1998) (no “hardship” because plaintiff 18 “is not required to engage in, or to refrain from, any conduct”). 19 And in National Park, the majority and the dissent disagreed over 20 whether the obligation on would-be concessioners to increase their 21 bids in anticipation of increased operating costs resulting from 22 the questioned regulation caused sufficient injury to confer 23 ripeness on the concessioners’ challenge to the regulation. 24 Here, the City’s proposed adoption of a new SOP causes no

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1 such harm to Bronx Household. Even if the proposed SOP had been 2 adopted, Bronx Household would not be obligated by it to amend its 3 practices in any way. The provision would not command Bronx 4 Household to do anything or to refrain from doing anything, nor 5 would it grant, withhold, or modify any legal license, power, or 6 authority, nor would it subject Bronx Household to civil or 7 criminal liability. See National Park, 538 U.S. at 809. The 8 proposed SOP would merely create a possibility that at some future 9 time, it may cause Bronx Household to be excluded from use of the 10 schools – at which time Bronx Household could challenge its 11 constitutionality. See Simmonds, 326 F.3d at 360 (“The mere 12 possibility of future injury, unless it is the cause of some 13 present detriment, does not constitute hardship.”). 14 15 B. Lack of Harm to Either Party from Delay 16 Among the factors courts examine to determine ripeness is 17 whether either party to the dispute would be harmed by delaying 18 adjudication until the dispute ripens. I think it clear that 19 neither party would be harmed by delay in adjudicating the 20 constitutionality of Proposed SOP § 5.11. Bronx Household 21 continues to be protected by the preliminary injunction, and there 22 is no impediment to the entry of final judgment relating to the 23 SOP that was actually enforced against it (Old SOP § 5.11). The 24 City will suffer no harm if adjudication of the constitutionality

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1 of Proposed SOP § 5.11 awaits such time as it is actually adopted 2 and invoked. The parties may find it convenient to get this 3 resolved now. But loss of such convenience is not sufficient harm 4 to make a hypothetical future dispute ripe for immediate 5 adjudication. 6 In a deviation from the conventional pattern, it is the 7 governmental entity sponsoring the regulation, rather than the 8 person potentially affected, that has asked that the lawfulness of 9 the regulation be immediately adjudicated. However, the City is 10 not barred from vindicating its governmental interest by adopting 11 and enforcing the proposed standard against Bronx Household. The 12 preliminary injunction, which was in effect when the parties 13 cross-moved for summary judgment, barred the City from excluding 14 Bronx Household under the old rule. It did not purport to bar the

15 City from adopting or enforcing different standards.5

5

1 The preliminary injunction barred the defendant “from 2 enforcing the [Old SOP § 5.11] so as to deny plaintiffs’ 3 application.” It contained no suggestion that the City was 4 barred from adopting or enforcing a new, different standard. 5 The Order stated: 6 7 It is hereby ordered, adjudged and decreed that, for 8 the reasons set forth in the Opinion dated June 26, 9 2002, defendants are hereby enjoined from enforcing the 10 New York City Board of Education’s Standard Operating 11 Procedure § 5.11 [Old SOP § 5.11] so as to deny 12 plaintiffs’ application to rent space in a public 13 school operated by the Board of Education for morning 14 meetings that include religious worship or the 15 application of any similarly-situated individual or 16 entity. 17 18 (Although this has little or no bearing on the present

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1 When the City’s attorney expressed a concern that the 2 preliminary injunction might bar the City from enforcing the new 3 policy, the district court judge responded,“I don’t recall that 4 the injunction prohibited the [Department of Education] from 5 changing its policy.” If the City still entertained doubts about 6 a risk of contempt, it could have sought further assurance from 7 the district court.6 8 By asking the court to rule on the constitutionality of a 9 policy that had neither been enforced nor even adopted, the City 10 was essentially asking for an advisory ruling on courses of action 11 it had contemplated but not taken. The City was asking the court:

1 dispute, I question the appropriateness of the district 2 court’s grant of injunctive relief barring the City not only 3 from denying the application of the plaintiffs, but also 4 from denying the application of “any similarly-situated 5 individual or entity.” Assuming such an order may be 6 proper in some circumstances (even absent class 7 certification), cf. Galvan v. Levine, 490 F.2d 1255, 1261 8 (2d Cir. 1973), I believe it was not appropriate in this 9 case, at least without the court also giving a reasonably 10 precise definition of the meaning of “similarly-situated.” 11 There are many grounds upon which the City might reject 12 another entity’s permit application, which might raise 13 altogether different issues than those involved in Bronx 14 Household’s case. A defendant ought not to be subjected to 15 the risk of contempt without a reasonably clear delineation 16 of the circumstances in which the defendant is forbidden to 17 act.) 18

6

1 In the unlikely event that the district court would have 2 advised the City that the court would regard such action as a 3 violation of the injunction, the City would then have been armed 4 with an argument supporting ripeness to adjudicate the 5 constitutionality of the new SOP, as the City would then have 6 been harmed by denial of the opportunity to enforce the new 7 standard pending final adjudication of the constitutionality of 8 the old.

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1 if the City adopts the proposed SOP, and if Bronx Household 2 applies to use school space under that new provision, and if the 3 City denies that permit application on the grounds that Bronx 4 Household plans to use the school space for “worship,” would that 5 denial be constitutional? To answer would be to give an advisory 6 opinion on a hypothetical question. 7 8 C. Fitness For Adjudication 9 The circumstances that have led courts to find that issues 10 are unfit for adjudication are present here. The proposed SOP, 11 focusing on the exclusion of “worship,” has played no role in the 12 exclusion of Bronx Household from use of the school facilities. 13 Furthermore, adjudication of the constitutionality of the new SOP 14 would be illuminated by the resolution of questions that will 15 inevitably come into play if and when the City enforces the 16 proposed SOP upon Bronx Household’s application. See Toilet 17 Goods, 387 U.S. at 164. In Toilet Goods, Reno, and National Park, 18 the Supreme Court determined that adjudication of the legal 19 question was unripe in part because the adjudication would benefit 20 from having the “factual components fleshed out” by “some concrete 21 actions applying the regulation.” National Park, 538 U.S. at 808 22 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 891 23 (1990) (quotation marks omitted)). 24 The same considerations apply here. It is impossible to know

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1 at this stage exactly how the process of Bronx Household’s 2 application and the City’s ruling will play out when so much 3 remains uncertain. For starters, how will Bronx Household 4 describe its proposed activities in an application designed to 5 secure admission under this policy focused on worship? One cannot 6 assume that a new application seeking approval under the new SOP 7 will be formulated in the same terms as Bronx Household’s previous 8 applications, which were addressed to different standards. The 9 term “worship,” which did not appear in the old SOP but is central 10 to the new one, is of uncertain meaning. I recognize that, when 11 worship was not determinative, Bronx Household described the 12 activities for which it sought permission as “worship.” It will 13 not necessarily continue to do so when seeking admission under a 14 rule which explicitly excludes “worship.” In any event, what will 15 matter on a new application is not whether Bronx Household 16 considers its activities to be “worship,” but whether its 17 activities are “worship” within the meaning of the City’s new SOP. 18 It is uncertain how the City will interpret its new criterion. 19 Will the City formulate guidelines to help determine what does and 20 what does not constitute forbidden worship? How will the City 21 define the term in passing on applications? 22 After the Supreme Court’s decision in Good News Club, the 23 constitutional significance of “worship” is far from clear. In a 24 footnote responding to Justice Souter’s observation in dissent

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1 that the Good News Club’s activities added up to “an evangelical 2 service of worship,” the majority asserted that the activities “do 3 not constitute mere religious worship, divorced from any teaching 4 of moral values.” Good News Club, 533 U.S. at 112 n.4 (emphasis 5 added); see also id. at 138 (Souter, J., dissenting). Later in 6 the same footnote, the Court acknowledged Justice Souter’s 7 characterization of the Club’s activities as “worship,” but 8 responded simply that “[r]egardless of the label Justice Souter 9 wishes to use, what matters is the substance of the Club’s 10 activities . . . .” Id. at 112 n.4. 11 The Court’s insistence that Good News Club’s activities did 12 not constitute “mere worship” seems to indicate that the Court 13 attaches constitutional significance to whether “worship” was 14 involved, and may even suggest, as Judge Calabresi notes, that the 15 Supreme Court will ultimately conclude that worship may be 16 excluded, while associated teaching of moral values may not. See 17 Calabresi Op., supra at 26. Otherwise, there would be little point 18 in distinguishing the Club’s activities from “mere worship.” On 19 the other hand, the Court’s dismissal of Justice Souter’s 20 characterization of the activities as “worship” as essentially 21 irrelevant may suggest it is constitutionally irrelevant whether 22 an applicant to use public school facilities intends to conduct 23 worship services. Cf. Walker Op., post at 93. 24 When and if the City faces Bronx Household’s application to

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1 use school facilities under Proposed SOP § 5.11, given the City’s 2 obligation to act consistently with the Constitution, it will need 3 to interpret the Supreme Court’s First Amendment position. 4 Perhaps by that time the Supreme Court will have given additional 5 guidance. The City will have to determine the meaning of 6 “worship” as used in the new SOP, and do so in consideration of 7 whatever light new court rulings may have shed on the puzzling 8 ambiguities of the footnote in Good News Club. Before a federal 9 court adjudicates whether the City’s exclusion of “worship” is 10 constitutionally permissible, it would be useful to know how the 11 City construes excluded “worship,” and the best way to find out is 12 to wait until the City relies on its rule to deny an application. 13 Until the City denies Bronx Household’s application based on a 14 policy forbidding “worship,” there is no ripe question of the 15 constitutionality of such an action. 16 Because the central question in the dispute is one of 17 constitutionality, the importance of the conclusion that the 18 present dispute is not yet fit for adjudication is heightened by 19 the general rule counseling against deciding constitutional 20 questions unnecessarily. This court has been asked to adjudicate 21 a significant and delicate question of constitutional law, whose 22 outlines are by no means clearly dictated by prior authority; the 23 answer may turn in part on how the City interprets and enforces 24 its policy. This is exactly the type of question the court should

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1 not reach out to decide prematurely, when many factors which may 2 influence the analysis are as yet undeveloped. As the Supreme 3 Court noted in Spector Motor Service:

4 [A]s questions of federal constitutional power have 5 become more and more intertwined with preliminary doubts 6 about local law, we have insisted that federal courts do 7 not decide questions of constitutionality on the basis 8 of preliminary guesses regarding local law. Avoidance 9 of such guesswork . . . merely heeds this time-honored 10 canon of constitutional adjudication. 11 12 Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944)

13 (citations omitted). In the present case the constitutional 14 question may be substantially altered – or even mooted entirely – 15 by whether the City ever enforces Proposed SOP § 5.11 and, if so, 16 the manner in which enforcement proceeds. 17 It would in no way answer these ripeness concerns to say 18 that, because the constitutionality of the City’s Proposed SOP 19 will need to be decided soon, we might as well decide it now 20 rather than make the parties wait. There are at least two strong 21 responses to any such argument. For starters, the question 22 whether Proposed SOP § 5.11 embodies prohibited viewpoint 23 discrimination (as the district court found) may never be 24 presented to the court. Second, and more important, the ripeness 25 doctrine assumes that the question may well need to be decided in 26 the future, but nonetheless avoids premature decision based on the 27 belief that the adjudication will be better informed and wiser if 28 it occurs when the dispute has crystallized, thus bringing its

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1 latencies to the surface. I discuss these two considerations 2 below. 3 Courts that have dismissed on the grounds of unripeness have 4 noted that, as the dispute among the parties advances, the unripe 5 issue may become moot and thus may never be presented to a court, 6 or alternatively may be presented in a much altered form. See 7 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 8 F.3d 1199, 1217 (9th Cir. 2006) (en banc) (three-judge plurality 9 opinion) (finding the case unripe because, in part, “[w]e are . . 10 . uncertain about whether, or in what form, [the] question might 11 be presented to us”); Simmonds v. I.N.S., 326 F.3d 351, 357 (2d 12 Cir. 2003) (Calabresi, J.) (“Prudential ripeness is . . . a tool 13 that courts may use . . . to avoid becoming embroiled in 14 adjudications that may later turn out to be unnecessary or may 15 require premature examination of, especially, constitutional 16 issues that time may make easier or less controversial.”). In 17 this case as well, there is a significant possibility that the 18 constitutional issue which the district court undertook to 19 determine will be mooted by future events, and either will never 20 be presented for adjudication or will be presented in a 21 substantially different form. Notwithstanding the City’s facile 22 prediction that it would deny Bronx Household’s future 23 applications under the proposed SOP, there are many other 24 reasonable possibilities. Among them: The City’s administration,

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1 whose composition inevitably will change over time, might adopt a 2 different approach. The City might become persuaded – perhaps by 3 subsequent rulings of the Supreme Court or other courts – that it 4 cannot constitutionally exclude worship, and might therefore 5 decide not to adopt the proposed SOP, or it might grant Bronx 6 Household’s application notwithstanding the SOP. The City might 7 grant Bronx Household’s application in part, allowing it to use 8 school facilities for some of its projected activities – those the 9 City recognizes are protected by Good News Club – but specifying 10 that others – those which the City views as “worship” and beyond 11 the protection of Good News Club – are not permissible. The free 12 speech concerns underlying the district court’s decision might 13 also be mooted if the City concluded that, in practice, any 14 attempt to enforce Proposed SOP § 5.11 would violate the 15 Establishment Clause of the First Amendment, because of church- 16 state entanglement resulting from the City’s need to distinguish 17 “worship” from other religious activities. See Widmar v. Vincent, 18 454 U.S. 263, 272 n.11 (1981) (“We agree . . . that the University 19 would risk greater ‘entanglement’ by attempting to enforce its 20 exclusion of ‘religious worship’ and ‘religious speech.’”); Bronx 21 Household III, 400 F. Supp. 2d at 598 (merely identifying 22 “religious worship services” fosters “an excessive government 23 entanglement with religion”); see Walker Op., post at 95. Or, as 24 noted above, for any of a number of reasons, Bronx Household might

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1 never reapply. 2 Furthermore, in denying Bronx Household’s future application 3 the City might also rely on a ground which either moots the 4 constitutional inquiry or at least alters the constitutional 5 calculus. The New York statute authorizing the Board to open its 6 schools for public use for “social, civic and recreational 7 meetings and entertainments, and other uses pertaining to the 8 welfare of the community” specifies that such uses “shall be non- 9 exclusive and shall be open to the general public.” New York 10 Educ. L. § 414(1)(c) (emphasis added).7 While Bronx Household has 11 described its meetings as “open to the public,” the City has 12 questioned this characterization, and the evidence already adduced 13 suggests that Bronx Household’s meetings may not be open to the 14 public. It appears, for instance, that Bronx Household has 15 “excommunicated two Church members since they began meeting at 16 P.S. 15,” and that an excommunicated member “is not permitted to 17 attend [Bronx Household’s] services, unless the person seeks to be 18 restored to the Church.” Grounds for discipline include publicly 19 advocating the Islamic religion. Furthermore, Bronx Household’s 20 Pastor has also testified that “communion,” which is part of Bronx

7

1 Although in Bronx Household I we dismissed the relevance 2 of the possibly exclusive nature of Bronx Household’s meetings, 3 we did so in the context of upholding on other grounds the 4 City’s denial of a permit to Bronx Household. See Bronx 5 Household I, 127 F.3d at 215. The discussion did not imply that 6 exclusivity could not furnish an alternate ground for the City’s 7 denial.

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1 Household’s typical Sunday service, is not given to “people who 2 have not been baptized.” For these and other reasons, there may 3 therefore be a substantial question whether Bronx Household’s 4 meetings are truly “open” to people who reject Christianity. 5 If such evidence were further developed, it is reasonably 6 possible that upon Bronx Household’s future application under the 7 proposed SOP the City would deny access on the ground that Bronx 8 Household’s Sunday meetings are out of compliance with New York’s 9 statutory mandate that all meetings be “non-exclusive” and “open 10 to the general public.” New York Educ. L. § 414(1)(c). Were the 11 City to exclude Bronx Household on this basis, the question 12 whether the City may constitutionally exclude “worship” would in 13 all likelihood be mooted. Cf. Capitol Square Review & Advisory 14 Bd. v. Pinette, 515 U.S. 753, 761 (1995) (even in a “public forum” 15 the state may regulate protected expression with “reasonable, 16 content-neutral time, place, and manner restrictions”). 17 The fact that the proposed provision has never been applied 18 against Bronx Household and may never be applied as the basis for 19 excluding the group from school facilities counsels strongly in 20 favor of finding the question of its constitutionality unfit for 21 judicial review. See Simmonds, 326 F.3d at 359 (fitness analysis 22 “is concerned with whether the issues sought to be adjudicated are 23 contingent on future events or may never occur” (quoting Isaacs v. 24 Bowen, 865 F.2d 468, 478 (2d Cir.1989) (quotation marks omitted));

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1 Motor Vehicle Mfrs. Ass’n v. New York State Dep’t of Envtl. 2 Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996) (“The [ripeness] 3 doctrine prevents the premature adjudication of issues that may 4 never arise.”). Refraining from decision on issues that may never 5 materialize is particularly important where the underlying issue, 6 as here, is of constitutional import. See Lyng v. Northwest 7 Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A 8 fundamental and longstanding principle of judicial restraint 9 requires that courts avoid reaching constitutional questions in 10 advance of the necessity of deciding them.”). 11 Even if it were certain that the constitutionality of 12 Proposed SOP § 5.11 would be back before the court, that is not a 13 reason to decide that question prematurely, before a dispute over 14 the application of the SOP has crystallized or caused harm. The 15 ripeness doctrine seeks better information and thus improved 16 accuracy in decision making. As discussed above, there are many 17 ways in which the constitutional question may be shaped and 18 informed by the manner in which the City chooses to apply and 19 interpret its proposed policy. We cannot anticipate the exact form 20 this dispute will take when it ripens into an actual conflict. 21 The ripeness doctrine requires that our decision await that time 22 (even if it is in the near future), because the issue will be 23 better illuminated when the contours of the conflict are clear. 24 At this stage, the particulars of the dispute between Bronx

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1 Household and the City regarding the new proposed SOP are a matter 2 of speculation. 3 A finding that Bronx Household’s meetings are not open to the 4 public or that it refuses sacraments based on whether the person 5 professes the Christian faith might also present a different 6 constitutional issue. The Supreme Court found in Lamb’s Chapel v. 7 Center Moriches Union Free School District, 508 U.S. 384 (1993), 8 that the school did not violate the Establishment Clause by 9 permitting religious groups to use school facilities because the 10 activity “would not have been during school hours, would not have 11 been sponsored by the school, and would have been open to the 12 public, not just to church members. The District property had 13 repeatedly been used by a wide variety of organizations. Under 14 these circumstances . . . there would have been no realistic 15 danger that the community would think that the District was 16 endorsing religion . . . .” Id. at 395 (emphasis added). Again, 17 in Capitol Square Review and Advisory Board v. Pinette, a 18 plurality of the Court repeated these sentiments: To permit 19 “access by a religious group in Lamb’s Chapel, it was sufficient 20 that the group’s activity was not in fact government sponsored, 21 that the event was open to the public, and that the benefit of the 22 facilities was shared by various organizations.” 515 U.S. 753, 23 767 (1995) (plurality opinion) (emphasis added). Finally, in Good 24 News Club the Court rejected the defendant’s Establishment Clause

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1 defense by noting: “As in Lamb’s Chapel, the Club’s meetings were 2 held after school hours, not sponsored by the school, and open to 3 any student who obtained parental consent, not just to Club 4 members.” 533 U.S. at 113 (emphasis added); cf. id. at 144 5 (Souter, J., dissenting) (permitting Good News Club to meet on 6 school property might result in an Establishment Clause violation, 7 in part because “[t]he club is open solely to elementary students 8 (not the entire community, as in Lamb’s Chapel)”). 9 These cases may suggest that there is a constitutional 10 requirement that religious meetings conducted on public school 11 property be “open to the public,” and that would-be recipients not 12 be denied sacraments on the basis of their failure to espouse the 13 tenets of a particular faith, lest such exclusions be perceived as 14 state “endorsement” of a particular faith. Cf. Lamb’s Chapel, 508 15 U.S. at 395. Were the City to permit Bronx Household to use 16 school facilities to perform activities such as communion only for 17 those of a certain faith, or to close the school doors to persons 18 who reject Christianity, this might well be deemed a violation of 19 the Establishment Clause. Cf. Good News Club, 533 U.S. at 113 20 (“[I]t is not clear whether a State’s interest in avoiding an 21 Establishment Clause violation would justify viewpoint 22 discrimination.”). 23 In any event, the possibility that the City’s response to an 24 application under the proposed SOP might be affected by such

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1 considerations, such that the provision will never be applied in 2 the manner currently anticipated by the parties (if at all), 3 argues against the fitness of the question for present 4 adjudication. Courts do not rush to adjudicate unripe disputes, 5 especially those involving constitutional questions, because 6 judgments on important questions will be better informed and 7 sounder if they await the time when the dispute has crystallized

8 and a party has suffered harm.8

8

1 My colleagues offer a number of arguments in favor of a 2 finding of ripeness. I do not find them convincing. Judge 3 Calabresi, acknowledging that it is a “close” question, argues 4 as follows. First, he contends the record reflects actual 5 promulgation of the revision and adds that the district court 6 “must be taken to have found” that the City adopted the rule. 7 Nothing in the district court’s discussion suggests that the 8 court made such a finding; furthermore, when the court raised 9 the ripeness concern, counsel for the City acknowledged that 10 while the revision had been “approved at the highest levels of 11 the Department,” it had neither been “implemented” nor “applied 12 . . . to the plaintiffs.” The City subsequently acknowledged 13 that it was “not currently enforcing the revised section 5.11” 14 nor even “advising the field of this change.” Bronx Household 15 III, 400 F. Supp. 2d 581, 588 (S.D.N.Y. 2005). 16 More importantly, however, my finding of unripeness does 17 not turn on whether the revision was adopted by the Board as an 18 SOP. It is undisputed that the revision was never applied 19 against Bronx Household. While the apparent failure of the City 20 to promulgate the revision formally makes the unripeness of the 21 dispute more obvious, my conclusion would be the same, for the 22 reasons expressed throughout this opinion, regardless of whether 23 the revision was adopted but not invoked against Bronx 24 Household, or not even adopted. The most important factor is 25 that the revision caused Bronx Household no harm. 26 Judge Calabresi seems to concede that this revision of the 27 SOP has caused no harm to Bronx Household; at least he makes no 28 argument to the contrary. He argues that ripeness may be found 29 on two bases: first, that a finding of unripeness would further 30 delay the ultimate resolution of the dispute, and second, that 31 the City should be entitled to get a ruling on the 32 constitutionality of the revision, even before applying it,

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1 because the City might have believed that the terms of the 2 preliminary injunction prohibited the City from enforcing it. 3 As for the delay, there are two answers. First, the delay 4 necessary to await a true ripe conflict over the revised SOP 5 need not have been lengthy. Had the district court declined to 6 adjudicate the constitutionality of the revised SOP until the 7 City invoked it to exclude Bronx Household, and the parties 8 desired speedy resolution, the resulting delay would have been 9 extremely brief. If, instead of trying to convince the court to 10 adjudicate the constitutionality of a rule that had never been 11 enforced, the City had advised the court that it was adopting a 12 different standard, and invited Bronx Household to apply under 13 the new standard, Bronx Household could then have promptly 14 submitted an application, and the City could have promptly 15 ruled. The parties could then have cross-moved for summary 16 judgment. Any delay in the court’s ruling until a true 17 adversity developed between the parties over a new standard thus 18 need not have exceeded a few weeks. Second, and more 19 important, resultant delay of adjudication is ordinarily not the 20 kind of harm that renders an unripe claim ripe. Delay is an 21 inevitable consequence whenever a court declines to adjudicate a 22 question by reason of unripeness. In several cases discussed in 23 the body of this opinion, the Supreme Court and this court have 24 declined to adjudicate because of the unripeness of the 25 question, notwithstanding that the refusal to adjudicate would 26 cause the parties delay in securing an answer to the question. 27 If such delay conferred ripeness, no case would ever be unripe 28 for adjudication. 29 Judge Calabresi finally argues that ripeness can be derived 30 from the harm to the City of being barred by the preliminary 31 injunction from implementing its newly revised policy. As 32 explained more fully in earlier passages of this opinion, the 33 terms of the preliminary injunction simply did not forbid the 34 City from revising its policy or from enforcing a policy 35 different from the one enjoined. When the City’s attorney 36 advised the district court, “We did not believe that, in light 37 of the preliminary injunction, that we could go forward [with 38 implementation of the revised policy] without this court’s 39 approval,” the court responded, “I don’t recall that the 40 injunction prohibited the DOE [Department of Education] from 41 changing its policy.” If the City had further qualms, it could 42 have asked the judge for assurance. 43 Judge Walker argues that the issue is ripe because Bronx 44 Household is harmed by an “in terrorem effect” of the revised 45 rule – the in terrorem effect being that Bronx Household must 46 concern itself that, if the revised standard is some day 47 enforced against it, it would be forced to seek another location

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2 CONCLUSION 3 The district court should not have entertained and 4 adjudicated the question whether the City may constitutionally 5 exclude Bronx Household from access to City school facilities 6 under the provisions of Proposed SOP § 5.11. The question was not 7 ripe for adjudication. It is unnecessary to determine whether 8 this was prudential unripeness, constitutional unripeness, or 9 both. The question was at least prudentially unripe. The court 10 should have declined to jump ahead to make this premature 11 adjudication. I therefore vote to vacate the judgment. 12

1 to conduct worship services. In support, Judge Walker cites the 2 Supreme Court’s decision in Abbott. However, the reason the 3 Supreme Court found ripeness in Abbott, notwithstanding that the 4 new regulations had not been enforced, was that the plaintiff 5 drug manufacturers needed immediately either to adopt the 6 disadvantageous labeling practices mandated by the regulation or 7 risk serious punishments. Their vulnerability to punishment was 8 crucial to the finding of ripeness. Here, there is no such 9 thing. The revised SOP causes no harm to Bronx Household. It 10 is free for the time being to conduct its worship services in 11 the schools without any risk of punishment. The recognition 12 that the revised SOP might some day be enforced to exclude Bronx 13 Household from conducting its worship services in the schools 14 causes it no present harm. If the mere possibility of future 15 enforcement of a new rule were sufficient to confer ripeness, a 16 governmental entity’s mere adoption of a new rule would allow 17 all persons who might some day be required by it to change their 18 practices to challenge its lawfulness in federal court. This is 19 clearly not the accepted standard of ripeness. 20 The arguments of my colleagues do not persuade me that a 21 ripe controversy exists over the constitutionality of this 22 revision of the City’s SOP, which has clearly not been enforced 23 and has caused Bronx Household no harm.

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1 JOHN M. WALKER, JR., Circuit Judge, dissenting: 2 This dispute between the Bronx Household of Faith, a 3 Christian church, and the New York City Board of Education is old 4 and bitter. Bronx Household wishes to use school facilities for 5 Sunday worship services; the Board wishes to keep them out and 6 invokes a rule precluding groups who meet on school premises after 7 hours from “holding religious worship services, or otherwise using 8 a school as a house of worship.” Standard Operating Procedures 9 Manual § 5.11 (“SOP § 5.11”).1 10 While I agree with Judge Calabresi that this dispute is ripe 11 for adjudication, and join his opinion in that limited respect 12 without reservation,2 I cannot agree that SOP § 5.11 is viewpoint 13 neutral. Indeed, after comparing the purposes of Bronx

1

1 What is termed “Revised” SOP § 5.11 in the court’s per 2 curiam opinion, I call simply SOP § 5.11. 3

2

1 I agree with Judge Leval that we should not reach out to 2 decide unnecessary constitutional questions. The Board, 3 however, has repeatedly and implacably sought to exclude 4 religious viewpoints -- whether out of the mistaken belief that 5 such exclusion is necessary to comply with the Establishment 6 Clause or due to some hostility to religious groups. Indeed, 7 this marks the third time that a New York school board has 8 denied religious groups access to school property. Under these 9 circumstances, and in light of the fact that I believe the Board 10 has adopted SOP § 5.11, I think we owe the litigants a duty to 11 decide this dispute now; the alternative would permit the Board 12 to rely on the in terrorem effect of SOP § 5.11 to prevent Bronx 13 Household from pursuing its principal goal -- the establishment 14 of a community of believers -- as Bronx Household would need to 15 account at every turn for the possibility that at any moment it 16 might be forced to resume its peripatetic search for a building 17 wherein to house its worshipers. Cf. Abbott Labs. v. Gardner, 18 387 U.S. 136, 152 (1967).

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1 Household’s proposed use of school property with the purposes for 2 which the Board has opened that property to the public, I can only 3 conclude that by promulgating SOP § 5.11 the Board has engaged in 4 a form of invidious viewpoint discrimination forbidden by the 5 First Amendment. With the history of this dispute in mind and in 6 light of the Supreme Court’s recent decision in Good News Club v. 7 Milford Central School, 533 U.S. 98 (2001), I vote to affirm the 8 district court’s permanent injunction. 9 Rather than inquiring into the purposes of the proposed 10 expressive activity and the purposes of the forum, Judge Calabresi 11 follows a different analytical course, with which I cannot agree. 12 Starting with the premise that in a “limited public forum” the 13 government may restrict any expressive activity that does not 14 “parallel” expressive activity the government has already chosen 15 to permit, Judge Calabresi asks whether “worship [is] merely the 16 religious analogue of ceremonies, rituals, and instruction [which 17 the Board has chosen to permit], or . . . [whether it is] a unique 18 category of protected expression.” Calabresi Op., supra at 6. He 19 then completes the syllogism by holding that worship is sui 20 generis, unlike expressive activity the Board has already chosen 21 to permit, and thus impermissible. The result is Bronx 22 Household’s excommunication from the broad group of after-school 23 users who are welcome on school property. 24 Judge Calabresi’s approach is fatally defective in two

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1 principal ways: (1) He fails to define the “limits” of the Board’s 2 limited public forum, rendering the comparison he draws between 3 permitted expressive activity and Bronx Household’s proposed 4 expressive activity so indeterminate and malleable that its result 5 is foreordained; and (2) He fails to articulate an objective 6 definition of “worship,” the term he uses to describe Bronx 7 Household’s proposed expressive activity, choosing instead to 8 leave that task to the Board and thereby likely ensuring that the 9 Board’s entanglement in the process will violate the Establishment 10 Clause. 11 The First Amendment is not like a book in the “Choose Your 12 Own Adventure” series, in which it is easy –- albeit theoretically 13 improper –- to select an outcome and, working backwards, decide 14 how the plot and characters will develop; nor, for that matter, 15 may we decline the adventure itself. The First Amendment does not 16 teach Judge Calabresi’s simple calculus. Cf. Int’l Soc’y for 17 Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 693-94 (1992) 18 (Kennedy, J., concurring) (“Our public forum doctrine ought not to 19 be a jurisprudence of categories rather than ideas . . . .”). 20 Because I agree with Judge Calabresi that we must decide this 21 case, because I conclude that the Board has engaged in 22 impermissible viewpoint discrimination, and because Judge 23 Calabresi’s approach relies more on judicial legerdemain than 24 judicial reasoning, I must respectfully dissent from the court’s

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1 decision to vacate the permanent injunction. 2 I. Bronx Household’s Free Speech Claim 3 A. The Board’s Viewpoint Discrimination 4 Despite the two flaws in Judge Calabresi’s approach, I begin 5 with three points on which he and I are in agreement. I agree 6 that in a limited public forum, the government may exclude all 7 entities except those “entities of similar character” to those it 8 has chosen to include, Perry Educ. Ass’n v. Perry Local Educators’ 9 Ass’n, 460 U.S. 37, 48 (1983), as long as any such exclusion is 10 not a facade for covert viewpoint discrimination, Cornelius v. 11 NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 812 (1985). 12 Indeed, we have concluded, a limited public forum is (1) a sub-set 13 of the designated public forum as to “expressive activities of 14 [the] genre” the government has chosen to permit on its property, 15 Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 16 1991), and (2) a sub-set of the nonpublic forum as to all other 17 expressive activities. See also Arkansas Educ. Television Comm’n 18 v. Forbes, 523 U.S. 666, 677 (1998) (holding that if the 19 government excludes “a speaker who falls within the class to which 20 a designated public forum is made generally available” its 21 decision is subject to strict scrutiny). I also agree that we 22 must be careful not to articulate a standard that would simply 23 require that “any public school opened for civic meetings . . . 24 [be] open[] for use as a church, synagogue, or mosque.” Good News

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1 Club, 533 U.S. at 139 (Souter, J., dissenting). And, finally, I 2 agree that courts should not analyze the “substance” of proposed 3 expressive activity as the district court did in this case. See 4 Bronx Household of Faith v. Bd. of Educ. (Bronx Household III), 5 400 F. Supp. 2d 581, 591 (S.D.N.Y. 2005) (describing Bronx 6 Household’s proposed activity as “singing songs and hymns; 7 teaching from the Bible.”). By deconstructing religious worship 8 into components, the district court denigrates it.3 9 Judge Calabresi and I part ways, however, in how we propose 10 to ascertain whether the Board is just excluding an entity 11 dissimilar to those it has already chosen to permit on its 12 premises or whether it is engaging in unlawful viewpoint 13 discrimination. I would compare the purposes of Bronx Household’s 14 proposed expressive activity to the purposes for which the Board 15 has created its limited public forum and, if the fit is close, 16 inquire searchingly of the government’s motives. This accords 17 with the various cases Judge Calabresi cites in his opinion, but

3

1 The district court’s approach is also impractical, for if 2 worship is merely the singing of hymns and reading from the 3 Bible, the singing of hymns might be considered simply a 4 vibration of the vocal chords; finally, the district court’s 5 approach seems in tension with the Supreme Court’s decision in 6 Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 109, 111 7 (1943) (“[T]he mere fact that the religious literature is ‘sold’ 8 by itinerant preachers rather than ‘donated’ does not transform 9 evangelism into a commercial enterprise.”). I note in passing 10 that for these same reasons I fail to see how the Board could 11 grant Bronx Household’s putative future application in part 12 while denying it in part. Cf. Leval Op., supra at 70.

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1 barely analyzes. The Good News Club Court, for instance, 2 emphasized purpose. Compare Good News Club, 533 U.S. at 108 3 (“Milford has opened its limited public forum to activities that 4 serve a variety of purposes . . . .”) (emphasis added), and id. 5 (“[T]here is no question that teaching morals and character 6 development to children is a permissible purpose under Milford’s 7 policy . . . .”), and id. at 109 (discussing “the [Lamb’s Chapel] 8 films’ purpose”), with id. at 131 (Stevens, J., dissenting) 9 (distinguishing discussion of “political issues from meetings 10 whose principal purpose is to recruit new members to join a 11 political organization”) (emphasis added).4 And our court has 12 often deemed analysis of the parties’ purposes essential to 13 resolution of limited public forum cases. See Deeper Life 14 Christian Fellowship, Inc. v. Bd. of Educ., 852 F.2d 676, 680 (2d 15 Cir. 1988) (government’s purpose relevant to determining whether 16 property is public forum or nonpublic forum); Knolls Action 17 Project v. Knolls Atomic Power Lab., 771 F.2d 46, 50 (2d Cir. 18 1985) (ostensible subject-matter restriction “impermissible [if] 19 it was motivated [in fact] by a dislike of the content of 20 [plaintiff]’s message”).

21 More importantly, whether Bronx Household’s proposed

4

1 See also Rosenberger v. Rector & Visitors of the Univ. of 2 Virginia, 515 U.S. 819, 829 (1995); id. at 846 (O’Connor, J., 3 concurring) (“This insistence on government neutrality toward 4 religion explains why we have held that schools may not 5 discriminate against religious groups by denying them equal 6 access to facilities that the schools make available to all.”).

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1 expressive activity constitutes “worship” can only be discerned by 2 inquiring of that activity’s purpose. See Welsh v. United States, 3 398 U.S. 333, 339 (1970) (accepting the subjectivity of “religious 4 belief” and abjuring any objective definition of the term); United 5 States v. Seeger, 380 U.S. 163 (1965) (same); cf. Murdock, 319 6 U.S. at 109 (noting evangelical purpose to sale of religious 7 literature). 8 Under the approach most faithful to Supreme Court precedent, 9 whether Pastor Hall chooses to label Bronx Household’s proposed 10 expressive activity a “worship service” is not determinative; we 11 must independently examine the purpose of that activity. Compare 12 McCreary County v. ACLU, 125 S. Ct. 2722, 2732 (2005) (discerning 13 hidden religious purpose) with N. Pac. Union Conference Ass’n of 14 the Seventh-Day Adventists v. Clark County, 118 Wash. App. 22, 28- 15 29 (2003) (discussing whether “education” should be considered “‘a 16 vital part of the Church’s worship program’” for tax purposes). 17 Defendants’ purpose in opening school property to the public is to 18 improve “school-community relations in ways that can enhance 19 community support for the school.” Cahill Decl. ¶ 14; Farina 20 Decl. at ¶ 9 (noting that the Board wishes to “expand enrichment 21 opportunities for children and to enhance community support for 22 the schools”) (emphasis added). Simply put, defendants wish to 23 foster a community in their geographic vicinity in ways that will 24 inure to their benefit. Upon review of the record, Bronx

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1 Household’s proposed expressive activity fits within this 2 paradigm. Bronx Household’s essential purpose is the development 3 of a community of believers, which has as its anticipated result 4 increased community support for the school. See 1st Hall Dep. at 5 19, 20, 38, 46. 6 Because the fit between the government’s purpose in opening 7 the forum and the purpose of Bronx Household’s proposed expressive 8 activity is sufficiently close, more searching scrutiny of the 9 government’s motives is required. Cf. Peck ex rel. Peck v. 10 Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 631 (2d Cir. 2005) 11 (Calabresi, J.) (postulating hostility to religion from teacher’s 12 conduct). The Board’s avowed purpose in enforcing the regulation 13 in this case, see Bronx Household III, 400 F. Supp. 2d at 599 14 (noting that “[t]he Board is quite candid in acknowledging its 15 intent to ‘reinstitute a policy that would prevent any 16 congregation from using a public school for its worship 17 services’”), and its long-standing hostility to religious groups, 18 leads ineluctably to the conclusion that the Board, in fact, has 19 undertaken to exclude a particular viewpoint from its property. 20 I acknowledge Judge Calabresi’s concern that New York’s 21 schools not resemble St. Patrick’s Cathedral. However, analysis 22 of the parties’ purposes does not raise that concern; it leaves

23 the Board ample room to regulate the use of its property.5 As the

5

1 Moreover, because the Board has a compelling interest in 2 avoiding Establishment Clause violations, it can exclude

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1 Supreme Court explained in Good News Club, the government “may be 2 justified ‘in reserving [a forum] for certain groups.’” 533 U.S. 3 at 106 (emphasis added); Perry, 460 U.S. at 49 (“We believe it is 4 more accurate to characterize the access policy as based on the 5 status of the respective unions . . . .”) (emphasis added). The 6 Board thus remains free to distinguish between outside speakers 7 and student-sponsored groups (as indeed the text of SOP § 5.11 8 hints it may). Cf. Bronx Household III, 400 F. Supp. 2d at 600 9 n.18 (noting that the Board could “amend the SOPs to create a 10 neutral distinction based on the speaker”). Moreover, the Board 11 may also impose reasonable time, place or manner restrictions on 12 Bronx Household. 13 B. Two Flaws in Judge Calabresi’s Reasoning 14 Judge Calabresi’s conclusion that “defendants’ exclusion of 15 worship services is viewpoint neutral,” Calabresi Op., supra at 16 38, is grounded not upon a comparison of the purposes of the 17 activities allowed and the purpose of Bronx Household’s proposed 18 activity, but upon a comparison between the expression already 19 permitted on school premises and “worship.” Compare Calabresi 20 Op., supra at 31 (comparing worship services to “Boy Scouts 21 rituals or . . . Elks Club ceremonies” and finding substantial 22 differences) with Good News Club, 533 U.S. at 111 (finding few

1 religious groups whose presence would convey to the public the 2 message that the government endorses religion (or a particular 3 religion). Cf. Lamb’s Chapel, 508 U.S. at 394-395.

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1 differences between Good News Club’s proposed activity and Boy 2 Scouts rituals). After he pronounces worship sui generis, Judge 3 Calabresi not surprisingly finds that “worship” is not included 4 within the set of expressive activity hitherto permitted by the 5 Board. This will not do. In order to determine whether an 6 element is within a set, a court should both define the set, see 7 Child Evangelism Fellowship of New Jersey Inc. v. Stafford 8 Township Sch. Dist., 386 F.3d 514, 527 (3d Cir. 2004) (discussing 9 the limited public forum’s limits), and analyze the element, to 10 discern whether it has the attributes required for admission to 11 the set, see Goulart v. Meadows, 345 F.3d 239, 252 (4th Cir. 2003) 12 (explaining the importance of identifying “which of . . . various 13 indicia of similarity is the relevant one”). See generally Nix v. 14 Hedden, 149 U.S. 304 (1893) (determining whether tomatoes should 15 be classified as “fruit” or “vegetable” by first defining “fruit” 16 and “vegetable” and then analyzing “tomatoes”). Yet Judge 17 Calabresi defines neither the set –- the “limits” of the limited 18 public forum –- nor the element –- “worship.” His comparison is 19 therefore susceptible to reductio ad absurdum, as both the scope 20 of the set and the nature of its prospective member remain 21 substantially unknown.6

6

1 Indeed, Judge Calabresi holds that “worship” is sui 2 generis. But how is it possible to determine whether one 3 activity that is by hypothesis in a class of its own, Webster’s 4 Third International Dictionary 2286 (1981) (defining “sui 5 generis”), is within a set comprised of other activities?

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1 (1) Judge Calabresi does not define the limits of the 2 limited public forum. 3 4 The first flaw in Judge Calabresi’s analysis lies with his

5 delimitation of the limited public forum. He says that we are 6 bound by our decision in Bronx Household of Faith v. Community 7 School District No. 10 (Bronx Household I), 127 F.3d 207, 211-14 8 (2d Cir. 1997), that the school has created a limited public 9 forum. But the character of a forum is defined by its uses and 10 the uses to which it is put change over time. See Paulsen v. 11 County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991); cf. Grayned v. 12 City of Rockford, 408 U.S. 104, 116 (1972) (stating that “[t]he 13 crucial question is whether the manner of expression [that the 14 petitioner wishes to engage in] is basically incompatible with the 15 normal activity of a particular place at a particular time”) 16 (emphasis added). Therefore, while his implicit assumption that 17 the character of the forum has not changed may be correct, he 18 cannot reach this conclusion by simple judicial say-so; such a 19 conclusion must be based on a factual inquiry into the forum’s 20 current uses, not those of a decade ago. 21 Even were I to agree with Judge Calabresi that we should 22 unquestioningly adopt our decade-old legal analysis of the forum, 23 the term “limited public forum” does no judicial work unless we 24 know “the class to which . . . [the] forum is made generally 25 available,” Forbes, 523 U.S. at 677. And on this point his

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1 opinion is silent.7

7

1 I hold no illusion that defining the limits of a limited 2 public forum is an easy task. For instance, Cornelius instructs 3 that we should consider the government’s intent. 473 U.S. at 4 802; see, e.g., Deeper Life, 852 F.2d at 680; Calash v. City of 5 Bridgeport, 788 F.2d 80, 83 (2d Cir. 1986). But how to 6 distinguish a change of mind –- which the government, like any 7 property owner, is assuredly permitted, see, e.g., Perry, 460 8 U.S. at 46 –- from viewpoint hostility? Compare Knolls, 771 9 F.2d at 49-50 (“In the instant case, therefore, whatever 10 previous use has been allowed does not foreclose KAPL from 11 asserting its rights at this time.”) (emphasis added) with 12 Robert C. Post, Between Management and Governance: The History 13 and Theory of the Public Forum, 34 UCLA L. Rev. 1713, 1756 (“If 14 the reach of the forum is determined by the intent of the 15 government, and if the exclusion of the plaintiff is the best 16 evidence of that intent, then the plaintiff loses in every 17 case.”), and with New York Magazine v. Metro. Transp. Auth., 136 18 F.3d 123, 129-30 (2d Cir. 1998). On the other hand, if we fix 19 the definition of the forum at the time the government first 20 permits members of the public to use its property for 21 expression, how do we account for the inherently contingent 22 nature of a property’s taxonomy? See ISKON, 505 U.S. at 698 23 (Kennedy, J., concurring) (arguing that if “expressive activity 24 would be appropriate and compatible with [a property], the 25 property is a public forum”); see also Lebron v. Nat’l R.R. 26 Passenger Corp., 69 F.3d 650, 655-56 (2d Cir. 1995); supra 27 (discussing Grayned). 28 Moreover, courts sometimes make this task even more 29 difficult by covertly collapsing the inquiry into forum 30 definition and forum boundary. See, e.g., Bd. of Educ. of 31 Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 246-50 (1990) 32 (inquiry into whether a secondary school had in fact opened a 33 limited public forum within the meaning of 20 U.S.C. § 4071(a) 34 conducted in tandem with inquiry into whether the secondary 35 school provided “equal access”); Gregoire v. Centennial Sch. 36 Dist., 907 F.2d 1366, 1375-76 (3d Cir. 1990) (considering at the 37 same time whether the school had in fact tightened its control 38 over expressive activity on its premises and whether it was 39 engaging in impermissible viewpoint discrimination). 40 While I believe that these tensions in First Amendment 41 doctrine are ripe for Supreme Court clarification -- in this 42 respect, at least, I agree with Judge Leval -- Judge Calabresi 43 should not so easily eschew his obligation to define the 44 contours of the limited public forum the Board has allegedly 45 created.

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1 (2) Judge Calabresi does not define worship. 2 Judge Calabresi’s reasoning has a second flaw: It posits that 3 judges can define “worship.” He assumes that worship is 4 distinguishable from activities that are plainly within the 5 forum’s limits: These include gathering for the purpose of gaining 6 religious instruction, engaging in Bible study, and, if it be the 7 disposition of the participant in such activities, feeling the 8 deity’s presence. Indeed, to some men and women of faith, 9 political activism, proselytizing, or even education,8 amount to 10 worship.9 How can one quarrel with Justice Souter’s classification 11 of Good News Club’s after-school Bible study program, permitted by

8

1 Cf. DeBoer v. Village of Oak Park, 267 F.3d 558, 568 (7th 2 Cir. 2001) (“In adopting the philosophical and theological 3 position that prayer . . . can never be ‘civic,’ the Village has 4 discriminated . . . .”); Lassonde v. Pleasanton Unified Sch. 5 Dist., 320 F.3d 979, 984 (9th Cir. 2003) (suggesting that 6 “proselytizing, no less than prayer, is [worship]”) (internal 7 quotation marks omitted); Seventh-Day Adventists, 118 Wash. App. 8 at 28-29 (“[T]he Church maintains that worship must be broadly 9 defined to include missionary work, education, charitable 10 giving, communication, publication, and planning and growth 11 activities because these are ‘a vital part of the Church’s 12 worship program.’”). 13

9

1 Moreover, as Judge Bybee explained in his dissent from 2 the Ninth Circuit’s denial of rehearing en banc in Faith Center 3 Church Evangelistic Ministries v. Glover, Judge Calabresi may 4 assume a definition of worship that works to “treat[] religious 5 groups differently.” 480 F.3d 891, 901 (9th Cir. 2007) (Bybee, 6 J., dissenting from denial of rehearing en banc) (explaining 7 that “[l]iturgically oriented denominations such as 8 Episcopalians and Catholics will [likely] find themselves 9 subject to greater burdens [as] [t]he worship elements of their 10 services are more distinct and easily severable from the non- 11 worship elements”).

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1 the Court, as “worship,” 533 U.S. at 138 (Souter, J., dissenting)? 2 Of course, because the concept of worship is so ephemeral and 3 inherently subjective, Judge Calabresi is able to indulge his 4 preference that worship be defined not by what it is, but by what 5 it is not. And what worship is not, in his view (and convenient 6 for his purposes), is anything that the Board has already 7 permitted to occur in the forum. Yet the fact is that none of us, 8 who are judges, are competent to offer a legal definition of 9 religious worship.10 10 Even assuming that judges could define “worship,” Judge 11 Calabresi does not explain how he would do so –- perhaps he knows 12 it when he sees it?11 Cf. Jacobellis v. Ohio, 378 U.S. 184, 197

10

1 I do not suggest that “worship” is not possible to define 2 –- just that it is impossible for a court to define. Were 3 worship truly legally indistinguishable from activities carried 4 on from a ‘religious perspective,’ laws like the Equal 5 Participation of Faith-Based Organizations, 69 Fed. Register 6 41,712 (July 9, 2004) (codified at 24 C.F.R. § 5.109) 7 (prohibiting only “inherently religious activities” and defining 8 the term to include worship, religious instruction, or 9 proselytism), might well be unconstitutional. 10

11

1 On this score, I find Judge Calabresi’s treatment of 2 Widmar v. Vincent singularly unpersuasive. Widmar counsels that 3 we should decline to establish a line which, when crossed, 4 transforms the “‘singing [of] hymns, reading scripture, and 5 teaching biblical principles,’” . . . [into] unprotected 6 ‘worship.’” See Widmar, 454 U.S. 263, 270 n.5 (1981) (internal 7 citation omitted). But Judge Calabresi simply dismisses Widmar 8 with the cursory explanation that “Widmar . . . did not conclude 9 that the exclusion of worship constituted viewpoint 10 discrimination.” Calabresi Op., supra at 33. He ignores the 11 question actually posed, and deemed unanswerable, by the Widmar 12 Court: What is worship?

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1 (1964) (Stewart, J., concurring). Judge Calabresi suggests that 2 one may worship “mammon, sex, or art.” Calabresi Op., supra at 3 34. Perhaps he means to concede that the term can connote simple 4 reverence for something or someone (like “Tiger Woods” or, in 5 earlier eras, “Frank Sinatra,” “Rita Hayworth,” or “The Beatles”). 6 See Webster’s Third International Dictionary 2637 (1981) (defining 7 worship as “to regard with respect, honor, or devotion”). Or 8 perhaps he means something different; but if so, there is no hint 9 to art history professors everywhere as to how they might turn 10 their classrooms into houses of worship –- surely a useful feat! 11 In short, Judge Calabresi speaks with an obliquity of which any 12 prophet would be proud. 13 Judge Calabresi’s various attempts to avoid defining 14 “worship” are unavailing.12 First, Judge Calabresi suggests that 15 “Good News Club itself recognized this subject matter, worship, as 16 falling outside the boundary of its viewpoint discrimination 17 jurisprudence.” Calabresi Op., supra at 26. Good News Club did 18 nothing of the sort. The Court simply declined to reach the 19 question presented by this case, which, while not necessary to 20 that case, is to this one, see Good News Club, 533 U.S. at 112 n.4 21 (“[W]e conclude that the Club’s activities do not constitute mere

12

1 Nor can I agree with Judge Leval that the Board is likely 2 to propound a useful definition of worship at some future date. 3 I see no evidence in the record that the Board is prone to 4 giving fulsome explanations concerning its decisions to grant or 5 deny applications to use school facilities.

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1 religious worship, divorced from any teaching of moral values.”), 2 as Judge Calabresi recognizes elsewhere in his opinion, when it 3 suits him, see Calabresi Op., supra at 11 (noting that “the 4 instant appeal’s central question” was “unresolved”). 5 Second, Judge Calabresi relies heavily on Pastor Robert 6 Hall’s admission that Bronx Household wishes to conduct worship 7 services on school premises. But if we accept plaintiffs’ self- 8 description, we should accept their self-definition. And Pastor 9 Hall defines worship as the ascription of “worth to a variety of 10 values and skills,” 1st Hall Dep. at 41-42 (discussing 11 ‘worshiping’ a sunset or work of art); Bronx Household of Faith v. 12 Bd. of Educ. (Bronx Household II), 226 F. Supp. 2d 401, 424 13 (S.D.N.Y. 2002), not much different in kind from the dictionary 14 definition, supra, “to regard with respect, honor, or devotion.” 15 If that is to be the operative definition of “worship,” Bronx 16 Household is surely correct that the Board permits other community 17 groups that “ascribe worth to a value or skill” –- i.e.,“worship” 18 –- to use their facilities. Cf. id. (“[T]he Semanonans Stickball 19 players . . . would likely join plaintiffs in worshiping David

20 Wells’ pitching prowess.”).13

13

1 Judge Calabresi notes that Pastor Hall distinguished 2 worship from Boy Scouts meetings. But he quotes selectively 3 from Pastor Hall’s deposition; Pastor Hall also explicitly 4 explains that “[w]e will ascribe worship or praise to David 5 Wells when he almost pitched a second no-hitter. . . . We will 6 praise a sunset. We will also praise a work of art. We will 7 ascribe worth and value to something that we find valuable.” 1st 8 Hall Dep. at 41-42. Reading Pastor Hall’s deposition

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1 Moreover, and more fundamentally, Judge Calabresi, while he 2 dismisses Bronx Household’s as applied challenge to SOP § 5.11, 3 does not reckon with its facial challenge to the rule. Compl. at 4 6; cf. Faith Ctr. Church Evangelistic Ministries v. Glover, 462 5 F.3d 1194, 1219 (9th Cir. 2006) (Tallman, J., dissenting) (“Faith 6 Center also brought a facial challenge to the policy.”). Bronx 7 Household’s facial challenge to SOP § 5.11 implicates the rights 8 of other religious groups, which might not “make [the] nice 9 admission” that they wish to engage in “worship.” Id. 10 Finally, any attempt to define worship places Judge Calabresi 11 upon the horns of a dilemma. Either he clarifies the meaning of 12 “worship,” and risks entangling the judiciary in religious 13 controversy in violation of the First Amendment, or he delegates 14 the task of flouting the Establishment Clause to the Board, which 15 will no doubt have to “interpret religious doctrine or defer to 16 the interpretations of religious officials” in order to keep 17 worship, and worship alone, out of its schools. Commack Self- 18 Service Kosher Meats v. Weiss, 294 F.3d 415, 427 (2d Cir. 2002); 19 see also Glover, 462 F.3d at 1220 (Tallman, J., dissenting); cf. 20 Good News Club, 533 U.S. at 127 (Scalia, J., concurring). 21 II. The Board’s Establishment Clause Defense 22 Judge Calabresi does not consider whether the Board can show

1 “sympathetically,” I cannot but conclude that his definition of 2 worship is broader than the (unarticulated) definition upon 3 which Judge Calabresi relies.

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1 a compelling interest in applying SOP § 5.11 to Bronx Household; 2 because, however, I would find that the Board’s exclusion of Bronx 3 Household from the forum is viewpoint-discriminatory, I must 4 address the argument, advanced in the district court, that the 5 Board can justify its position as necessary to avoid an 6 Establishment Clause violation. While avoiding an Establishment 7 Clause violation may as a general matter be a compelling state 8 interest, in this case, the Board’s argument is unavailing because 9 Bronx Household’s worship at the school does not offend the 10 Establishment Clause. 11 The endorsement test –- which the Supreme Court now uses to 12 identify Establishment Clause violations -- asks whether “an 13 objective observer, acquainted with the text, legislative history, 14 and implementation of the [challenged law or policy], would 15 perceive it as a state endorsement” of religion. Santa Fe Indep. 16 Sch. Dist. v. Bd., 530 U.S. 290, 308 (2000). The Board argues –- 17 and Judge Calabresi obliquely suggests -- that permitting Bronx 18 Household the use of school property on Sundays amounts to 19 government endorsement of religion in two ways: (1) It suggests 20 that the state favors religion over non-religion; and (2) Because 21 Bronx Household uses school premises on a more frequent basis than 22 other religious groups, it suggests that the state favors 23 Christianity over Judaism, Islam, or other faiths. Neither 24 argument has merit.

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1 As we recognized in Deeper Life, “‘the semblance of official 2 support is less evident where a school building is used at night 3 . . . by religious organizations, under a program that grants 4 access to all charitable groups.’” 852 F.2d at 681 (citing Brandon 5 v. Bd. of Educ., 635 F.2d 971, 978-79 (2d Cir. 1980)); see also 6 Lamb’s Chapel, 508 U.S. at 395 (noting that meetings were not 7 “during school hours . . . [or] sponsored by the school . . . [and 8 are] open to the public, not just church members”). Just so, 9 Bronx Household does not meet during school hours, and its 10 meetings are open to all. See 1st Hall Dep. at 30 (“Our services 11 are always open to the public.”).14 Nor do religious groups 12 dominate the forum. See Bronx Household III, 400 Supp. 2d at 596; 13 cf. Widmar, 454 U.S. at 275. Under these circumstances, there is 14 no likelihood that “an adult who, taking full account of the 15 policy’s text, history, and implementation, do[ing] so mindful . 16 . . [of the particular perspective of] impressionable 17 schoolchildren,” Skoros, 437 F.3d at 23, would understand Bronx 18 Household’s use of school premises to reflect the government’s

14

1 While it is of course true that a Muslim might not be 2 welcome at Bronx Household’s worship service, 2d Hall Dep. at 3 39, it is beyond cavil that the Boy Scouts –- a group the Board 4 readily permits on school property –- also exclude those who 5 refuse to adopt their core beliefs, see Boy Scouts of America v. 6 Dale, 530 U.S. 640 (2000). Thus, I do not see how the Board 7 could deny Bronx Household’s putative future application on this 8 ground without also denying applications from, among others, the 9 Boy Scouts. Cf. Leval Op., supra at 71-72.

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1 preference for religion over non-religion.15 2 I also disagree that the reasonable observer is likely to 3 believe the government favors Christianity over other faiths 4 because, due to the vagaries of the school calendar, the forum is 5 available on Sundays – when Christians worship – and not on 6 Saturdays or Fridays – which are holy to Jews and Muslims. As the 7 Supreme Court explained in Zelman v. Simmons-Harris, 536 U.S. 639 8 (2002), and Good News Club, an Establishment Clause violation does 9 not result from either private choice or happenstance. Zelman, 10 536 U.S. at 652; Good News Club 533 U.S. at 119 n.9; see also 11 Harris v. McRae, 448 U.S. 297, 319 (1980) (“[I]t does not follow 12 that a statute violates the Establishment Clause because it 13 happens to coincide or harmonize with the tenets of some or all 14 religions.”) (internal quotation marks omitted). 15 To the extent the Board is troubled by Bronx Household’s use 16 of its property, it is free to impose different reasonable time, 17 place or manner restrictions. Ward v. Rock Against Racism, 491 18 U.S. 781, 790 (1989). 19

15

1 Indeed, this case seems the precise opposite of Van Orden 2 v. Perry. In Van Orden, Justice Breyer noted that “the short 3 (and stormy) history of the courthouse Commandments’ displays 4 demonstrates the substantially religious objectives of those who 5 mounted them.” Van Orden, 125 S.Ct. 2854, 2871 (2005) (Breyer, 6 J., concurring). Here, the decade-long (and equally stormy) 7 history of the Board’s dispute with Bronx Household is 8 compelling evidence that the Board lacks a religious objective.

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1 * * * * * * 2 In the end, this case is one that requires judges to draw 3 lines. Judge Leval has drawn a prudential line in the sand and 4 declines to cross it to decide this case. Judge Calabresi, 5 meanwhile, has drawn a circle around our schools to keep worship 6 (whatever that may be) out. Cf. Mozert v. Hawkins County Bd. of 7 Educ., 827 F.2d 1058, 1073 (Boggs, J., concurring) (“He drew a 8 circle that shut me out -- Heretic, Rebel, a thing to flout. But 9 Love and I had the wit to win / We drew a circle that took him 10 in!”). The approach I follow, while admittedly imperfect in this 11 uncertain legal terrain, at least abjures sleight of hand and ipse 12 dixits. It is also more sensitive to Bronx Household’s First 13 Amendment rights. Yet there is no doubt that this particular 14 dispute –- no stranger to the Supreme Court and now focused on 15 worship -– would benefit from a more conclusive resolution by that 16 Court.