Monday, February 15, 2010


NYLJ 6-03-07


1. Once upon a time, the US Court of Appeals opted for a three-way split on the issue of religious activity in public buildings, a/k/a The Enchanted Ruling…or, The Logic That Ate Its Own Tail. No one says that the justices were looking to the language of fairy tales or legends for parsing suggestions. Still, if you start seeing Rapunzel as a cure for illegal possession of Rampians via personal service contract, or Hansel & Gretel as cruel and unusual punishment for trespass and criminal mischief of eating a house or Cinderella as estate malfeasance and failure of fiduciary duty by Cruel Stepmother, you’d be forgiven to think this particular decision having as much Grimms as Blacks to it.

The story of this spell begins in a dispute that dates from 1994. At that time, the Bronx Board of Education opened the use of school facilities to outside groups for “social, civic or recreational meetings…and other uses pertaining to the welfare of the community.” In accordance with that wording, from the Standard Operating Procedure manual, they had denied a permit to the Bronx Household of Faith, and later revised it to encompass “any use as a house of worship.” This would seem to be all she wrote…if she was Lady Justice and blind to the evils of the world.

But the Grand Wazir of SDNY (who granted a preliminary injunction against the old rule) sure wasn’t…and certainly not blind to the fact that churches are also voting blocs. This is also the same Robed One who gaveled a permanent injunction to stop the city from enforcing the revised version. And it is this that became the basis of the Enchanted Ruling. So great was its power that it had to travel all the way up the Magic Kingdom of the Court of Appeals. There, the Three Fates brought it into their mystical pot and brewed up the following alchemical incantation:

The spell is vacated by decree,
But, alas, apart, you see,
We are not One but Three,
And such the course it set for we
Is that all must disagree…

It all came down to the original curse: Good News Club v. Milford Central School District, 202 F.3d 502 (2d Cir. 200). The Supreme Court’s original wand wave there was that the petitioner was “seeking to address a subject otherwise permitted in the school, the teaching of morals and character, from a religious standpoint.” This “standpoint” created the evil miasma which would later be dubbed, “viewpoint neutral”.

The Enchanted Ruling’s permanent injunction took a cue from this hex with by even more dissimilation in the 2nd Circuit majority opinion: “It cannot be said that the meetings…constitute only religious worship, separate and apart from any teachings of moral values.” Somehow, in their conjurer’s vapors, “separate and apart” can obscure faith-based codes, embedded meanings and vocabulary references and good values equals God values, and vice-versa...irregardless.

Such is the further obfuscation that, when it came time for the C of A to render its opinion, the Three Little Pigs may come to mind (in their choices of building codes) as much as the Three Bears (if Goldilocks was the ultimate arbiter on the merits of their positions). For the purposes of this tale, however, we need to separate the unholy three to know their roles in this metaphysickal drama, which was something of a problem even for MacBeth. Then again, when you’re talking terms of art, any type of stock characterization will do. So let’s call them by their off-duty hobbies: the Woodsman, the Huntsman, and the Bishop.

It was the Bishop who went dogmatic. “Though our Milford decision was reversed, holding the restriction was viewpoint neutral, they did not address our conclusion that were the restriction only content-based it would be reasonable.” This might be seen as a bit theodic-biased were it not for his insistence that the exclusion of worship services makes it viewpoint neutral, and reasonable if content-based…as if there was a provision in the manual to have someone stand around and after-hours classroom and monitor every word, gesture, symbol, smile and eyebrow lift in the lesson plan to ensure that hairs were being properly split. And someone tell me he isn’t going to count the number of angels dancing on the head of a pin…

The Hunter took an even narrower bead on the Bishop’s spoor as a “fatally defective approach…to fail to define ‘limits’ of a limited public forum, leaving an open question about the differences in one ‘expressive activity’ and another, and as well failing to define ‘worship’ as an ‘expressive activity’, leaving it up to the Board of Education to come up with a standard.” You would think that he could at least distinguish his prey better than that.”

And master tracker manages to get even higher on his horse than that by proclaiming, “This case is one that requires us to draw lines. The Woodsman has drawn a prudent line in the sand…and declines to cross it.” The upshot for the Hunter was that the master of the forager’s art felt the issue was “not ripe” for adjudication came from the fact that, as the Board had yet to actually refuse a permit to the Household of Faith based upon the revised SOP manual—not that the injunction on the previous rule had ever been vacated long enough to do so—and, it appears, his “prudence” was not thought of as equivocal or even overly-fussy, but admirable! Like he can’t see the forest for the trees?

The Bishop was not so kind to the great gatherer either. “The Woodsman, meanwhile, has drawn a circle around our schools to keep worship (whatever that may be) out.” His eminence’s biggest legal qualm was that “the Board engaged in a form of invidious viewpoint discrimination forbidden by the First Amendment, by comparing the purposes of Household’s proposed use of property with the purposes by which the Board has opened the property to the public.”

Thus was the Enchanted Ruling established. No one dared ask the terrible question: What purposes? Purposes that conform to the U.S. Constitution’s separation of Church and State?

Maybe we should call up the Talking Mirror from Snow White and ask: Who’s the fairest of them all…

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