The government of the City of New York is now in the religion business. It is being forced against its will to fund and operate a set of well-furnished facilities in prime locations for the purpose of housing a large network of predominantly evangelical churches. On weekdays, during school hours, these facilities are known as "public schools". But after the bell rings, they become part of what we may now call "the Church of New York City". How did this blatant violation of the first amendment happen?
Among the many people who made this strange development possible, it wouldn't have taken place without a certain kind of judge – the kind who, in other contexts, talks loudly about the virtues of "limited government", the horrors of "judicial activism", and the sanctity of the US constitution. Last week, Loretta Preska, chief judge of the US district court for the southern district of New York, who was appointed to her post by President George W Bush and is a member of the Federalist Society, ruled that the constitution positively requires the New York City department of education to provide publicly subsidized housing for churches through its public schools.
The decision is the latest twist in a legal saga that started nearly two decades ago, and it is hard not to see it as an aggressive act of judicial defiance against a higher court. Judge Preska's decision effectively overturns last year's decision by the second circuit court of appeals in the very same case, in which that court affirmed that the department of education's prior policy of excluding houses of worship (along with partisan political groups) rested on sound constitutional grounds.
In her decision, Judge Preska doesn't just defy a higher court; she also commits some spectacular assaults on logic. In arguing that no reasonable observer would imagine that turning schools into rent-free churches amounts to the establishment of religion, she reasons that:
"The objective observer would 'know from the legislative history and implementation of the policy (including the lengthy judicial history) that the board's actions betoken great effort to avoid establishing any religion'."
In other words, as long as the school system expresses its opposition to the establishment of religion in judicial proceedings, the court can go ahead and order it to establish religion without fear of violating the establishment clause of the first amendment. That should be easy to explain to your five-year-old when he asks you whether the church is part of his school.