Pastor, Church & Law

Recurring Use of Public Property by Religious Congregations for Religious Services

§ 13.05

Key point 13-05. The First Amendment permits religious congregations to use public property for church services so long as the use is temporary and the congregation pays fair rental value.

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 39 Resnick v. East Brunswick Township Board of Education, 389 A.2d 944, 960 (N.J. 1978).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.40 See § 12-01.1,supra.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.”41 954.Second, the court 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.42 Id. at 958.

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.”43 Id.

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.44 Deeper Life Christian Fellowship v. Board of Education, 852 F.2d 676 (2nd Cir. 1988).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.45 Wallace v. Washoe County School District, 701 F. Supp. 187 (D. Nev. 1988).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.”

Case studies

  • A federal appeals court ruled that a church’s constitutional rights were not violated by a public school district rule prohibiting it from conducting religious worship on public school property.46 Bronx Household of Faith v. Community School District, 650 F.3d 30 (2nd Cir. 2011). The church had asked school officials for permission to use a middle school auditorium for weekly religious services after it outgrew its own facilities. School officials denied this request. School policy allowed school property to be used for a wide variety of outside groups for civic, social, and recreational purposes. However, school property could not be used for religious services. The relevant policy specifies, “No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purposes of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.” The church challenged the school’s denial of its request to use school property for religious services. A federal appeals court upheld the policy. It noted that “freedom to speak on government property is largely dependent on the nature of the forum in which the speech is delivered.” The court concluded that the public school in question was a limited public forum since school officials allowed only some groups to use school property for designated purposes. As a result, the exclusion of religious worship from this forum was legitimate only if it was “reasonable in light of the purpose served by the forum” and was “viewpoint neutral.” The court concluded that both of these requirements were met, and therefore the school policy was legally permissible. The court noted that religious groups are free to use school property after hours for purposes of discussing religious material or material with a religious viewpoint. It was only the use of school property for religious worship that was excluded.
  • A federal appeals court ruled that a public school violated the constitutional rights of a church by charging it more rent than it charged other community organizations for the use of school facilities.47 Fairfax Covenant Church v. Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994). A public school board permitted a wide variety of civic and community groups to use its facilities. Most such groups paid a rental fee substantially less than the commercial rate. Churches were permitted to use school facilities, and they were charged the same rate as other civic and community groups for the first five years they rented school facilities. However, after five years, churches paid a substantially higher rental fee. No other civic or community group paid the higher fee after five years. School officials freely acknowledged that the policy singled out churches for higher rent, but it insisted that the purpose was to encourage churches to go elsewhere out of a concern that continued use by churches of public school facilities might violate the First Amendment’s prohibition of an establishment of religion. A church began renting school facilities. For five years it paid the discounted rate, and later began paying the commercial rate. The church estimated that it paid $290,000 in additional rent because of the school board’s policy regarding churches. The church sued the school board, claiming that the rental policy for churches violated the First Amendment guarantees of speech and religion. It also demanded a refund of the excess rent it had paid. A trial court agreed with the church that the school board’s policy was unconstitutional, but it refused to award the church the excess rent it paid because of the policy. The church appealed. A federal appeals court agreed with the trial court that the policy was unconstitutional, and it ruled that the church was entitled to sue for a return of the excess rent it paid under the policy. The court rejected the school board’s suggestion that allowing a church to rent school facilities at a below-market rate for a long period of time automatically violates the First Amendment prohibition of the establishment of religion. Such may be the case, but only if religious use of the public forum is “dominant.”
  • A federal appeals court ruled that a religious group could not use public school property for religious services because the property was not a public forum that had been opened to a wide variety of community groups. A public school district developed a written use policy for non-student groups who wished to use school facilities after hours. That policy permitted buildings to be used for civic, recreational, and entertainment purposes that were open to the public and pertained to the “welfare of the public.” It did not permit partisan political activity or for-profit fund-raising. The policy prohibited uses involving “religious services or religious instruction” but permits discussions of religious material or material containing a religious viewpoint. A religious organization requested use of school facilities for a prayer meeting at which the group planned “to worship the Lord in prayer and music … to discuss family and political issues, pray about those issues, and seek to engage in religious and Biblical instruction with regard to those issues.” The school district denied the request, citing the policy, and the religious organization filed a lawsuit in federal court challenging the district’s decision. A federal district court ruled that the school district’s policy was unconstitutional. A federal appeals court disagreed. It noted that the school district’s policy excluded partisan political activity and for-profit fund-raising in addition to religious activities, and therefore “the policy’s restrictions indicate that the school’s purposes in allowing some public use have not reached the point at which any use —save targeted religious activities —is allowed. We are thus persuaded that the restrictions are minimally sufficient to maintain the school buildings’ status as a non-public forum.” As a nonpublic forum that allowed limited public access to its property, the school only had to prove that its exclusion of religious groups was “reasonably related to the purposes of the forum and discriminated only on the basis of content, not viewpoint. The government may not exclude a speaker with a religious viewpoint if it has permitted other speakers on similar topics. … This does not mean that any ban on religious activities amounts to viewpoint discrimination. Religion may be either a perspective on a topic such as marriage or may be a substantive activity in itself. In the latter case, the government’s exclusion of the activity is discrimination based on content, not viewpoint. … [We conclude that] religious services and religious instruction are activities which may be excluded as content-based discrimination [since they] are not simply approaches to a topic, but activities whose primary purpose is to teach and experience the subject of religion. These are activities distinct from a topical discussion, a social gathering, or a political meeting. The school district has excluded such religious activities but does not forbid speakers on general topics with a religious perspective —a distinction that viewpoint neutrality permits.”48 Campbell v. St. Tammany’s School Board, 206 F.3d 482 (5th Cir. 2000).
  • A federal court in South Carolina ordered a public school district to continue allowing a church to rent a school building for weekly worship services, and rejected the school district’s arguments for discontinuing the arrangement. A church used a public school building to conduct weekly services pursuant to a school district policy that allowed “recognized nonprofit community organizations” to use school facilities. The school district initially granted the church permission to use the school for a three month period. The church paid a rental fee of $250 per week and $15 per hour for the services of a custodian who was present at the school as required by the policy. At the end of the three month term, the school district granted the church permission to use the school for an additional three months. At the end of this second three month term the church asked for an additional three months since it was still finalizing arrangements to hold services at another location. However, the school district informed the church that its occupancy would not be extended. A school district officer explained that the district did not want to set a precedent by allowing the church to use school facilities for an extended period because then other “undesirable” groups such as religious cults would want to use the facilities. The church asked a court to issue a preliminary injunction allowing it to use the school for an additional three months. The court agreed with the church’s position, and ordered the school to allow the church to continue to rent the property. The court noted that all users of school property were charged the same amount, and so no “subsidy” was being provided to religion.49 Gracepointe Church v. Jenkins, 2006 WL 1663798 (D.S.C. 2006).See alsoChild Evangelism Fellowship of South Carolina v. Anderson School District 470 F.3d 1062 (4th Cir. 2006) (school district’s policy of charging rent to a religious organization for use of school property after instructional hours, but allowing other groups to use the property at no cost, violated the First Amendment).

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