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Appeals court upholds NYC ban on worship services in schools

By Bernard Vaughan

NEW YORK (Reuters) - New York City's ban on religious worship services inside school buildings after hours was ruled constitutional on Thursday by a federal appeals court.

In a 2-1 decision, the 2nd U.S. Circuit Court of Appeals said the New York City Board of Education's regulation, created so the city would not be perceived as endorsing religious activity in a public forum, "was consistent with its constitutional duties."

The rule prohibits school buildings from being used for religious worship services or as houses of worship, but the city allows groups to use schools for non-religious activities.

The appeals court's decision marks the latest chapter in a two-decade legal battle between the city's Board of Education and religious groups over the regulation.

It reversed a June 2012 decision from U.S. District Judge Loretta Preska, who permanently enjoined the city from enforcing the ban. Preska had held that allowing the worship services did not suggest that the school would be endorsing religion.

The 2nd Circuit said the regulation reflected the Board of Education's "reasonable concern" to abide by the Establishment Clause of the U.S. Constitution, which provides for a separation of church and state.

Thursday's ruling marked the sixth time the case, which the U.S. Supreme Court declined to review in 2011, was before the 2nd Circuit, the court said.

In the case, the Bronx Household of Faith, a conservative Congregational church, said the city's regulation violated its constitutional right to exercise religion free from government interference.

The court on Thursday said the regulation would not violate the rights of the church.

"The Free Exercise Clause, however, has never been understood to require government to finance a subject's exercise of religion," Circuit Judge Pierre Leval wrote for the panel.

In dissent, Circuit Judge John Walker said: "Allowing an entity to use public school space open to all others on equal terms is hardly financing that entity."

Jordan Lorence, a lawyer for the Bronx Household of Faith, said he was disappointed with the ruling.

"To single out the religious users and call that a subsidy is like saying the government subsidizes a Jewish synagogue by allowing it to hook up to the water system," Lorence said. "These are common benefits available equally to everyone, and religious worship services should not be singled out."

Lorence, of Alliance Defending Freedom, a public interest group that litigates religious liberty cases, said his team was considering asking the entire roster of 2nd Circuit judges to review Thursday's decision.

Asked about the decision on Thursday, Mayor Bill de Blasio told reporters that he had not read it, but he believed religious groups should be treated the same as non-religious organizations.

"I stand by my belief that a faith organization playing by the same rules as any community non-profit deserves access," de Blasio told reporters. "They have to go through the same application process, wait their turn for space, pay the same rent."

(Reporting by Bernard Vaughan; Editing by Noeleen Walder, Lisa Von Ahn, Ellen Wulfhorst and Lisa Shumaker)

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