Freedom of Religion – Part 1

Church Law and Tax 1989-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Church Law and Tax 1989-05-01 Recent Developments

Freedom of Religion

Does a church have a legal right to conduct Sunday worship services in a public high school auditorium? No, concluded a federal district court in Nevada. 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.” The court cited with approval a previous federal court decision in Kansas in which a court upheld the right of a church to rent public school property on a temporary basis. Presumably, had the Nevada church requested permission to rent the school auditorium for a temporary period of time (e.g., until it constructed a new sanctuary), the court would have ruled in favor of the church. This conclusion is consistent with a number of previous court rulings. Wallace v. Washoe County School District, 701 F. Supp. 187 (D. Nev. 1988).

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