Use of Public Property for Religious Purposes
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m88
May public property ever be utilized for religious services? In a leading decision, the New Jersey Supreme Court held that “religious groups who fully reimburse school boards for related out--of--pocket expenses may use school facilities on a temporary basis for religious services as well as educational classes.”1 The court concluded that such a practice did not violate the first amendment's establishment clause. It applied the three--part test announced by the Supreme Court in the Lemon case. First, the court observed that “there was a secular purpose in leasing the school facilities. That purpose was to enhance public use of these properties for the common benefit of the residents of East Brunswick.”2 Second, the court also noted that the “primary effect” of the rental arrangement was not the advancement of religion: “While we would be naive in refusing to note the obvious advantages to young congregations in the temporary use of school premises, to hold that this scheme primarily benefits religion would be absurd. The community as a whole is benefited when nonprofit organizations of interest to its members prosper.” Finally, the court could find no “excessive entanglement” between church and state:
[N]o significant administrative function is involved. The processing of an application by a clerk is hardly an act of excessive entanglement. Moreover, inasmuch as no use of school premises is made during regular school hours, there is no need for supervision to insure that no religion seeps into secular institutions. The danger of political fragmentation is minuscule, as appropriations are not involved. The mere fact that some persons in the community oppose the use of the schools by sectarian groups should not prevent these groups from enjoying the benefits of premises which the tax dollars of many of their members helped to construct.3
The court cautioned that “truly prolonged use of school facilities by a congregation without evidence of immediate intent to construct or purchase its own building would be impermissible.”4
In a similar case, a federal appeals court ruled that a church could use public school facilities on a temporary basis (and during noninstructional hours) during the construction or renovation of its own facilities.5 A church applied for and was granted permission to use a public school building on four consecutive Sundays while its own church facility was being renovated. During the four week period, the church applied for a permit to use the school facilities for an additional “six to eight months.” This permit was denied, and a trial court granted the church's request for an injunction forcing the school district to issue the requested permit. On appeal, the school district defended its refusal to grant the permit by pointing to a New York law that prohibits public school properties from being used for “meetings . . . where admission fees are charged . . . if such meetings are under the exclusive control, and said proceeds are to be applied for the benefit of . . . a religious sect or denomination.” The court acknowledged that this language was inconsistent with church use of public school property. However, it concluded that the school district had “opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” The court also rejected the school district's argument that granting the permit to the church would constitute an impermissible “establishment of religion” in violation of the first amendment. It noted that “the semblance of official support is less evident where a school building is used at night as a temporary facility by religious organizations, under a program that grants access to all charitable groups.”
However, some courts have indicated that a church's use of public school facilities must be temporary for the usage to be permissible. To illustrate, one court ruled that public high school officials acted properly in denying a church's request to use school facilities as a permanent location.6 A church of about 100 members had been meeting in a privately--owned auditorium. Its pastor asked local school officials if the church could rent the public high school auditorium on Sunday mornings. The school officials declined this request on the basis of a school policy prohibiting use of school facilities for religious uses. The church immediately filed a lawsuit against the school district, seeking a court order permitting use of the public high school auditorium on Sundays. In support of its case, the church argued that the high school permitted many non--religious groups to rent the auditorium, and it thereby had created an “open forum” that could not be denied to any group (including a church). The school district argued that its policy of denying access to its facilities by religious groups was required by the constitutional principle of “separation of church and state.” The court agreed that the school district had created an “open forum” by permitting various community groups to rent the high school auditorium. However, the court concluded that the district's refusal to rent the auditorium to the church was justified, since rental of the facility to the church would “have the primary effect of advancing religion” in violation of the nonestablishment of religion clause of the federal constitution. The court stressed that the church desired to use the school auditorium as the “permanent site for its church services and activities.” It noted that the church “has no building site nor does it have any present plans to acquire a site or construct a church facility.” As a result, the high school “will become the physical embodiment of the church,” and in this sense the church's request was “significantly different” from the requests of other community organizations to rent the facility, since no other community group sought to “become permanently institutionalized within the school.”
Many courts have ruled that public school officials cannot deny use of their facilities to religious groups if nonreligious community groups are permitted to use the facilities. To illustrate, a federal court concluded that “[a] public school is a public forum for its students and teachers,” and that “[i]f it is opened to the school district community for meetings and discussions during non--school hours, than it becomes a public forum for the community” that cannot exclude religious groups.1 In response to the school's fear that its facilities would be used by “snake cults, groups that practice animal sacrifices, groups that wear odd clothes, and groups that use smoke and fire in their worship services,” the court observed that if such activities ever did occur the first amendment would “pose no obstacle” to their regulation.
Similarly, a federal district court in Pennsylvania ruled that a high school cannot legally prohibit religious groups from using an auditorium that is available without restriction to non--religious community groups.2 A Christian student group requested permission to use a high school auditorium for a one--night performance and evangelistic message by a noted magician. The students' application included the application fee of $1,379. When school authorities discovered that the proposed use of the auditorium included a religious message, they denied the application, citing a school policy prohibiting “use of school facilities for religious services, instruction, or activities.” The student group thereafter sued the school district, alleging a violation of the constitutional right of free speech. The court agreed, noting that “the state is not required to open its property to the public in order to allow it to engage in free speech, association and discussion—but once it does, rights of free speech and association guaranteed by the first amendment are entitled to be protected even if that activity includes religion or religious subjects.” The court emphasized that the school district had “opened the school facilities for general use by community groups,” including boy scouts, girl scouts, Easter Seals, Kiwanis, Rotary, dance lessons, and a symphony orchestra. In addition, the school was used for adult evening classes which included instruction on occultic religious practices. Having created an “open forum” for free speech and assembly in its school facilities, the district could not deny access to any group on the basis of the content of its speech, even if the speech were religious in nature.
The court rejected the district's claim that allowing school facilities to be used for religious purposes would violate the first amendment's nonestablishment of religion clause: “Nothing in the establishment clause requires the state to suppress a person's speech merely because the content of that speech is religious in character.” The court warned that it would have reached a different conclusion had the evidence indicated that religious speakers “dominated” the open speech forum, or if use of the school facilities included “religious services.” While noting that a school can lawfully prohibit all groups from meeting without violating the free speech rights of any group, it prohibited the school district from closing its “open speech forum” before the challenged performance was conducted.
A federal appeals court ruled that a religious group could use a public library's auditorium for prayer meetings since the auditorium was made available to a variety of other community groups.3 The religious group requested permission to use the library auditorium, but its request was denied because of a library policy prohibiting use of its auditorium by religious or political groups. The religious group promptly sought a court order forcing the library to permit it to use the auditorium on the ground that the library's policy violated the group's constitutionally protected rights of free speech, assembly, and religion. A trial court issued an injunction compelling the library to permit the religious group to meet, and the library appealed. The federal appeals court for the fifth circuit agreed with the trial court's decision in favor of the religious group. The court noted that the library had permitted various groups to use the auditorium, including the American Association of University Women, an association of retired federal workers, the United States Navy, the United Way, American Legion, an adult AIDS program, and a swimming club. It also allowed a young girl to use the auditorium for a piano recital. The court concluded that the library, by allowing these groups to use the auditorium, had created a “public forum” and accordingly could not deny any other group access to the same facility solely on the basis of the content of its speech. Since the library denied the religious group access to the auditorium solely on the basis of the religious content of its speech, the denial violated the group's constitutional rights. “It is elementary,” the court concluded, “that the government may not exclude speech on the basis of its content from . . . a public forum.” The court also rejected the library's argument that allowing the religious group to use its auditorium would violate the first amendment's “nonestablishment of religion” clause. It observed that “in the absence of empirical evidence that religious groups will dominate use of the library's auditorium, causing the advancement of religion to become the forum's `primary effect,' an equal access policy will not offend the [nonestablishment of religion] clause.”
Another court held that the rental of a state university stadium to an evangelist for religious services did not constitute the establishment of a religion:
We do not believe that leasing Sun Devil Stadium for an occasional religious service at a fair rental value is an appropriation or application of public property for religious purposes . . . . The twin keys to the use of the stadium are fair rental value and the occasional nature of the use. The lease to a religious group, on a permanent basis, of property on the University campus, for example, would be an entirely different matter because by the permanency of the arrangement, the prestige of the State would be placed behind a particular religion or religion generally. Also, the lease of campus facilities for occasional use, but not for fair rental value, would violate the provision of our Constitution [i.e., of the State of Arizona] as being an appropriation or application of State property for religious purposes.4
For related information on this topic see the following articles:
Display of Religious Symbols on Public Property