noting that the majority’s definition “leads to anomalous results: while a Catholic or Episcopal service would be shut out of the forum, a Quaker meeting service, Buddhist meditation service, or other religions worship convocation could be allowed because it would not follow a ‘prescribed order’ ” or because the leader is not ‘ordained’
How later courts described this case
- noting that the majority’s definition “leads to anomalous results: while a Catholic or Episcopal service would be shut out of the forum, a Quaker meeting service, Buddhist meditation service, or other religions worship convocation could be allowed because it would not follow a ‘prescribed order’ ” or because the leader is not ‘ordained’
- characterizing the Board’s motivation in adopting Revised SOP § 5.11 as “a good faith desire to navigate successfully through the poorly marked, and rapidly changing, channel between the Scylla of viewpoint discrimination and the Charybdis of violation of the Establishment Clause”
- defining “worship services” as “a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion” (emphasis added)
- noting that a public school may lawfully exclude “the conduct of a certain type of activity — the conduct of worship services — and not ... the free expression of religious views associated with it”
Written by the judges who cited it.
The opinion
CALABRESI, Circuit Judge,
concurring:
I join Judge Leval’s opinion in full because it states a correct alternative ground upon which to decide this case. But I write separately to emphasize that I continue to adhere to the position I took in my earlier opinion in this case, that worship is sui generis. See Bronx Household III, 492 F.3d at 100 (Calabresi, J., concurring). And I especially wish to reaffirm my view there stated:
A holding that worship is only an agglomeration of rites would be a judicial finding on the nature of worship that would not only be grievously wrong, but also deeply insulting to persons of faith.
Id. at 103. Worship is something entirely different. See id.; see also Bronx Household I, 127 F.3d at 221 (Cabranes, J., concurring in part and dissenting in part) (“Unlike religious ‘instruction,’ there is no real secular analogue to religious ‘services,’ such that a ban on religious services might pose a substantial threat of viewpoint discrimination between religion and secularism.”). State rules excluding all “worship” from a limited public forum, therefore, are based on content, not viewpoint.
In the context of the rule before us, there is one particular problem: the rule seems to prohibit religious worship. See SOP § 5.11 (“No permit shall be granted for the purpose of holding religious worship services____”). And if it be the case that non-religious worship also exists, *52 then the prohibition of religious worship would be viewpoint discrimination, and most likely unconstitutional. The question of whether there is a category of nonreligious worship, or whether worship is inherently religious and thus “religious worship” is redundant, is interesting and difficult, but we do not need to decide it in this case. The majority opinion does not need to decide the issue because it concludes that there is no such thing as a non-religious worship service. Maj. Op. at [38-39]. I also need not decide the issue because the rule before us prohibits “using a school as a house of worship,” as well as the holding of “religious worship services.” SOP § 5.11. No one questions that what Appellees seek to do in the instant case is to use the school as a house of worship. And since both religious worship and nonreligious worship (if there be any) are subject to the clause barring use of a school as “a house of worship,” the prohibition here is content- and not viewpoint-based.
We also do not need to be concerned with whether in some other case it might be hard to say whether what the Appellees wish to do is to use the school as “a house of worship.” Nor need we worry that, in attempting to answer that question, we (or the Appellants) might become unconstitutionally “entangle[d] with religion,” Lemon v. Kurtzman, 403 U.S. 602, 613 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971). For Appellees admitted in their permit request, see J.A. at 3586, and in their briefs before this court, see Appellees’ Br. at 1, that they seek to use school facilities for “worship.” When a group tells the government that what it wishes to do is “worship,” the government is entitled to take the group at its word. See Bronx Household I, 127 F.3d at 221-22 (Cabranes, J., concurring in part and dissenting in part) (“There may be cases in which the parties dispute whether or not a proposed activity for which permission to use school premises is denied actually constitutes religious instruction or worship.... However, this issue does not arise in the instant case, as the parties have stipulated that plaintiff seeks to use a school gymnasium for ‘religious worship services.’ ”). That is all the Appellants did when they enforced SOP § 5.11, 1 and it is all a court needs to do here. This case does not, therefore, present an appropriate occasion for deciding how to resolve a dispute over whether something actually is “worship.”
. Whatever the Appellants may have done in deciding whether to grant previous permit applications not governed by the revised SOP § 5.11 is not before us. Under SOP § 5.11, the Appellants denied the Appellees' permit application four days after it was submitted, because it described the activities to be conducted on school premises as "Christian worship services.” See J.A. at 3586, 3588. It also does not matter that the permit application included the words "as we have done in the past,” J.A. at 3586, or that it might have been worded explicitly to include, in addition to worship, other activities that, if conducted separately from worship, could not constitutionally be excluded from the limited public forum. Once an applicant says that what it wishes to do is "worship,” no inquiry into whether the underlying or accompanying activities actually constitute worship is required.