It will be illuminating to see how the appellate judges who ride the Second United States Circuit comport themselves in the matter of Bronx Household of Faith v. Board of Education of the City of New York. This hearings scheduled for this morning mark the second time a three-judge panel of the court will have heard the case of a small, poor church trying to rent space on Sundays at a local public middle school. Last time the Second Circuit heard the case it upheld a decision adverse to the church, and the Supreme Court refused to hear the appeal. However, since that time, the Supreme Court has handed down an important decision, in Good News Club v. Milford Central High School, that significantly alters the legal landscape.

In Good News Club, the High Court held that a New York public school could not deny a religious youth group access to school buildings when such access was granted to other, non-religious groups. This, the Court held, constituted “viewpoint discrimination.” The Good News Club held weekly meetings that included the singing of hymns, prayer, memorization of scripture, and lessons about the Bible. The High Court, in a majority opinion penned by Justice Thomas, asked how these activities differed from the activities of groups such as the Boy Scouts. “We disagree that something that is ‘quintessentially religious’ or ‘decidedly religious in nature’ cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint,” wrote Justice Thomas, throwing the language of the Second Circuit back in its face.

In light of Good News Club, the United States district court judge who originally ruled against the Bronx Household of Faith, Loretta Preska, reversed her earlier decision in an admirably humble opinion that incorporated the Supreme Court’s new precedent. In a particularly illuminating passage, Judge Preska takes on the argument of the school board that the issue in Bronx Household of Faith, worship services, can be distinguished from the issue in Good News Club, an after school religious study group.

The High Court, Judge Preska writes, “rejected the … treatment of activities that are ‘decidedly religious’ or ‘quintessentially religious’ as ‘differen[t] in kind’ from other permitted activities.” Judge Preska also notes that while the Court in Good News Club did not specifically deal with the question, it was having “increasing difficulty in distinguishing religious content from religious viewpoint where morals, values and the welfare of the community are concerned.” Given Judge Preska’s reasoning, one might expect the Second Circuit to defer to the Supreme Court. However, as our R.H. Sager reports at page 1, even the church’s counsel is publicly stating that it anticipates the Second Circuit to go against it.

It turns out that the Second Circuit has a history of obstinacy on this issue. In the Good News Club decision itself, Justice Thomas went so far as to admonish the Second Circuit for ignoring the High Court’s precedents: “We find it remarkable that the Court of Appeals majority did not cite Lamb’ Chapel, despite its obvious relevance to the case. We do not necessarily expect a court of appeals to catalog every opinion that reverses one of its precedents. Nonetheless, this oversight is particularly incredible.” In Lamb’s Chapel, the Court held that a public school could not prevent a group from showing religious films on school property.

Today the Civil Rights lawyers of the United States government are on the side of the Bronx Household of Faith and its members seeking equal access to school facilities with other private organizations. Lawyers around the courthouse are likening officials of the City of New York to southern politicians who stood in the school house against civil rights lawyers of an earlier day. That may be as expected, given that the City administration has dug itself in pretty deep on the idea that it’s okay to discriminate against religious citizens. But the Second Circuit is another matter, and there will be a lot of New Yorkers watching to see whether it is going to try to face down the Supreme Court of the United States.