By Fred Folmer

Should religious groups be allowed to worship in New York City public schools? This question is at the heart of an ongoing issue involving church leaders, congregants and public officials, who are challenging a decision by the Bloomberg administration and Department of Education to evict churches that use school buildings for their worship services. Although the churches have now been evicted from their spaces, questions about the wisdom and fairness of doing so certainly remain, and legislation to overturn the evictions is still pending.

The issue may on the surface appear to be a standard church-and-state dispute, and indeed some of the questions it raises–Should so-called religious groups be allowed to worship on public facilities as paying tenants? Does such a use violate the First Amendment’s Establishment Clause? What constitutes a “worship service,” anyway, and why does it entail special forms of legislative restriction?–are quite familiar to anyone who has followed such cases. But the issue also suggests something that receives far less attention from media, and is much harder to map easily onto boilerplate rhetoric about “separation of church and state”  This is so because it affects certain kinds of churches and populations, but also because the decision to evict the churches—whatever its stated intentions—could have a marked effect on the kind of religion that gets practiced in New York City.  And where it’s practiced, given that it drastically reduces the space available to nondenominational and evangelical congregations in a city in which real estate is famously hard to come by.

As The New York Times reported in January, the issue stems from a recent federal appeals court ruling that cleared the way for the Bloomberg administration to evict some 160 congregations that have been renting space to conduct their religious services. The ruling appeared following a 16-year legal battle with the Bronx Household of Faith, described by the Times as “a small evangelical church.” After the U.S. Supreme Court declined to hear an appeal, the city announced the evictions in December. Though the ruling did not outright ban religious groups from using the facilities—for instance, for recreational or social activities—it clearly states the judges’ opinion that worship services on public school property may violate the Establishment Clause, and thus calls for a “reasonable content-based restriction” on the practice of worshipping in public schools.

While the Times’ story somewhat misleadingly suggests that the religious groups in question had sought mostly “spiritual” forms of redress after losing their court appeals—as per the article, they engaged in “prayer, fasting, and repentance”—it also reveals that a number of ministers had been arrested for trespass, some more than once, as they undertook “this-worldly” actions to try to reverse the policy. Throughout January, the protests intensified, according to Urbanfaith.com, which describes itself as “an evangelical-minded website of contemporary journalism.” As late as January 29, protesters marched across the Brooklyn Bridge in protest.

The fact that an evangelical news source had taken special notice to the story is perhaps telling. While one wouldn’t want to be a slave to classification, it’s equally important to note that every one of the churches mentioned in the various news articles is best described as evangelical, a broad term that usually connotes a congregation that stresses the ultimate authority, and often inerrancy, of scripture and an individual, personal experience of Christian salvation. Typically, evangelical churches are not as tightly organized into bureaucratic denominations as more liberal and mainline congregations, relying instead on more localized and independent forms of church polity. Crucially, this means that evangelicals in New York City don’t have the deeper pockets, or the real estate holdings, of their counterparts in denominational Christianity. It’s also inescapably (though by no means uniformly) true that many evangelical congregations serve vulnerable, low-income, immigrant and/or minority constituencies: In many quarters, the divide cannot be confined to the merely “religious” but is also rooted in other identifiers, such as class and race/ethnicity. A January 13th Beliefnet  article about the protests drives this point home with a photo of a protester holding a sign that reads, “Stop hurting the poor communities.”

Thus, in a city in which the price of real estate can make life difficult even for middle-class citizens, depriving a large chunk of evangelical churches of their spaces has far-reaching consequences for not just “religious” life, but for the material and social lives of these populations as well. That’s because in practice, the split between those two conceptual realms cannot be as easily separated as the judges did rhetorically, when in their decision they bifurcated “social services” and “religious services.” Among many religious communities, the two “spheres” are tightly entangled and cannot be disaggregated without a devastating loss. As Fernando Cabrera, a pastor of a soon-to-be-evicted church as well as a New York City councilman from the Bronx—and one of those arrested in the protests—wrote on January 28th in the New York Post, the policy to evict the churches overlooks the fact that these churches have been providing vital after-school programs, outreach to teenagers, soup kitchens, and so on. While one could argue that the ruling doesn’t directly affect these social programs, that argument disregards the fact that for many of these communities, the programs may only be thinkable within the context of a religious community whose “social services” are in and of themselves practices of “worship.” And so cutting off the ability to worship might indeed cripple the ability to provide “social services.” Under such circumstances, a separation between “religious” and “social” would seem a luxury—an extravagance available to those with the pocketbook and the clout to be able to separate their acts of religion from their acts of charity.

Even more than that, the ruling appears to have the effect of restricting the kind of religion that can be practiced in New York City. Without expressly doing so, the courts and administration have reinforced the authority of the kind of denominational religion that does not have to go asking the city for space—the kind of property-owning church that is well-off and powerful enough not to have to trouble the barriers that have been erected between church and state. It sends the message that the religions that need to seek public assistance for their space can go on existing, but that their communities be confined to the smaller spaces (storefronts, apartments) that might be available. It thus strengthens the idea that only certain (denominational, and/or property-owning) churches are practicing religion legitimately, out in the “open.” The ruling and evictions restrict the growth of the affected communities; they limit these evangelical congregations’ ability to do the kind of work that Cabrera describes, and indeed to practice religion in the way they see fit. And they do so in the name of such apparently universally good notions as “tolerance” and “religious freedom.”

As political scientist Wendy Brown argues in a 2006 book about tolerance discourse, such rulings and actions mask the state’s role “in reproducing the dominance of certain groups and norms”—in this case, a normative, property-owning sort of religion that is fundamentally private and thus taken to be compatible with secular modernity. Following Foucault, Brown calls such a masking “governmentality,” referring to “knowledges, discourses, and institutions that govern outside the rubric and purview of the state.” In this case, while the ruling and evictions were certainly under the state’s purview, the larger issue that is principally invisible—the instance of “governmentality”—refers to the effective reinforcement of a certain kind of religion, and the effective containment of another kind, under the banner of “religious freedom.” Tolerance is thus used as a kind of cudgel to force recalcitrant religious “others” into submission, Brown argues. Individuals, she writes, who are “abstracted from ethnic, religious, or other subnational orders are converted into citizens on the condition that the belief world from which they hail be excluded from legitimate public discourse.”

As the Times reported earlier this month, the evictions went into effect on Feb. 12, and the churches have been removed from their school-based homes. Although the State Senate has passed a bill allowing the return of the churches, the future of that legislation is in doubt, given that Assembly Speaker Sheldon Silver has, according to the Times, “expressed concerns” about the broadness of the Senate bill. In defending the decision to evict, Mayor Michael Bloomberg denied that a compromise would be in the works, telling reporters, “You know, the Constitution seems to me to be pretty clear” on the subject of separation of church and state.

But such clarity is surely elusive for many, as the U.S. Constitution merely forbids establishment of an official religion and is silent on exactly what activities constitute such an establishment, let alone on the specifics of religious groups who become tenants of a public entity. For their part, the congregations involved are not objecting to the notion of separation of church and state; rather, they are arguing that renting space from the city for whatever use—be it “social” or “religious”—is not the same as endorsement of a given belief or practice. As Cabrera wrote in his New York Post editorial, accommodation of religious groups does not imply promotion or sponsorship of these groups. They only ask that religious groups not be singled out for special forms of restriction in the way that the courts and administration have seen fit to do. (There is also the problematic, if not impossible, task of governments and courts to definitively separate what distinguishes a religious group or activity from a nonreligious group or activity—a task that, as legal and religion scholar Winnifred Fallers Sullivan has written, necessarily limits “religious freedom” as many citizens understand it.)

Exactly why are groups that can be labeled as “religious”—and their specific activities that governmental agencies have decided are “acts of religion”—now subject to such disciplinary “special treatment”? In order to figure this out, it might be useful to look at the effects of the action by governments and courts—in other words, to think about who is benefiting and who is not. The answer then becomes a beacon of clarity amidst a muddled and confusing situation.

Fred Folmer is a freelance writer and editor. He holds an M.A. in religious studies from New York University.