UNITED STATES COURT OF APPEALS

1 FOR THE SECOND CIRCUIT 2 3

_______________ 4 5 August Term, 2002 6 7 Argued November 4, 2002 Decided June 6, 2003 8 Errata Filed: July 2, 2003) 9 10 Docket No. 02-7781 11 12

_______________ 13 14 THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL and JACK ROBERTS, 15 16 Plaintiffs-Appellees, 17 18 v. 19 20 BOARD OF EDUCATION OF THE CITY OF NEW YORK and 21 COMMUNITY SCHOOL DISTRICT NO. 10, 22 23 Defendants-Appellants

. 24 25

_______________ 26 27 Before: 28 CARDAMONE, MINER, and KATZMANN, 29 Circuit Judges

. 30 31

_______________ 32 33 Defendants, New York City Board of Education and Community 34 School District No. 10, appeal from a preliminary injunction 35 entered July 3, 2002 in the United States District Court for the 36 Southern District of New York (Preska, J.). The preliminary 37 injunction, granted upon motion of plaintiffs the Bronx Household 38 of Faith, Robert Hall and Jack Roberts, enjoined defendants from 39 enforcing the New York City Board of Education's Standard 40 Operating Procedure § 5.11 so as to deny plaintiffs' application 41 to rent space in a public school operated by the Board of 42 Education for morning meetings that include religious worship or 43 the application of any similarly situated individual or entity. 44 45 Affirmed. 46 47 Judge Miner dissents in a separate opinion. 48 49

_______________ 50 51____________

1 2 JANE L. GORDON, New York, New York (Edward F.X. Hart, Lisa 3 Grumet, Michael A. Cardozo, Corporation Counsel of the City 4 of New York, New York, of counsel), for Defendants5 Appellants

. 6 7 JORDAN W. LORENCE, Scottsdale, Arizona (Benjamin W. Bull, 8 Alliance Defense Fund Law Center, Scottsdale, Arizona; Rena 9 Lindevaldsen, Esanu, Katsky, Korins & Siger, LLP, New York, 10 New York; Joseph P. Infranco, Migliore & Infranco, Commack, 11 New York, of counsel), for Plaintiffs-Appellees

. 12 13

_______________ 14 15 Jay Worona, New York State School Boards Association, Inc., 16 Latham, New York (James R. Sandner, Carol Gerstl, United 17 Federation of Teachers, New York, New York, of counsel), 18 filed a joint amicus curiae brief on behalf of the New York 19 State School Boards Association, Inc. (NYSSBA), and The 20 United Federation of Teachers (UFT)

. 21 22 Jennifer Levin, Washington, D.C. (Ralph F. Boyd, Jr., Assistant 23 Attorney General, David K. Flynn, Eric W. Treene, Civil 24 Rights Division, U.S. Department of Justice, Washington, 25 D.C.; James B. Comey, U.S. Attorney, David J. Kennedy, Neil 26 M. Corwin, Gideon A. Schor, Assistant U.S. Attorneys, 27 Southern District of New York, New York, New York, of 28 counsel), filed a brief for the United States as Amicus 29 Curiae

. 30 31 Anthony R. Picarello, Jr., Washington, D.C. (Roman P. Storzer, 32 Derek L. Gaubatz, The Becket Fund for Religious Liberty, 33 Washington, D.C., of counsel), filed a brief for The Becket 34 Fund for Religious Liberty as Amicus Curiae

. 35 36

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CARDAMONE, Circuit Judge : 1 This appeal concerns the proposed use of a public school 2 building for Sunday worship services by an evangelical Christian 3 church. Courts often struggle to reconcile the principle of 4 equal access to government buildings with a competing principle 5 of American public life, that is, the separation of church and 6 state. In the case before us, the district court resolved this 7 tension in favor of allowing religious speech on public property. 8 Recent Supreme Court precedent requires that we affirm. 9
BACKGROUND 10 A. Prior Legal Proceedings 11 Plaintiff, the Bronx Household of Faith (church), is an 12 evangelical Christian church founded in 1971 and located in the 13 Bronx, New York. Plaintiffs Robert Hall and Jack Roberts are its 14 co-pastors. This litigation represents plaintiffs' second 15 attempt to compel defendants, the Board of Education of the City 16 of New York and Community School District No. 10 (collectively 17 defendants or appellants), to allow plaintiffs to rent space in 18 public school M.S. 206B, Anne Cross Mersereau Middle School 19 (Middle School 206B), for Sunday morning meetings that include, 20 at least in part, activities that may be characterized fairly as 21 religious worship. 22 Plaintiffs' first application to rent space in Middle School 23 206B was rejected by defendants in 1994, resulting in litigation 24 between the present plaintiffs and defendants in the Southern 25 District of New York. In that case, the district court granted 263

defendants' motion for summary judgment dismissing plaintiffs' 1 complaint. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10 , 2 No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). We 3 affirmed, and the Supreme Court denied certiorari. Bronx 4 Household of Faith v. Cmty. Sch. Dist. No. 10 , 127 F.3d 207 (2d 5 Cir. 1997), cert. denied, 523 U.S. 1074 (1998) (Bronx Household 6

I ). 7 In 2001 plaintiffs again applied for use of space in Middle 8 School 206B and, when their application was denied, brought the 9 present action in the United States District Court for the 10 Southern District of New York (Preska, J.). The plaintiffs' 11 central point before the district court was that the Supreme 12 Court's decision in Good News Club v. Milford Central School, 533 13 U.S. 98 (2001), effectively overruled our holding in Bronx 14
Household I . Plaintiffs contend that, as a result, the Education 15 Board's policy of excluding community groups from renting school 16 premises for purposes of "religious services or religious 17 instruction" -- while allowing most other types of community 18 groups to hold meetings -- violates their First Amendment right 19 to freedom of speech. 20 Agreeing that plaintiffs were substantially likely to 21 prevail on the merits of their claim, Judge Preska granted their 22 motion for a preliminary injunction. Bronx Household of Faith v. 23
Bd. of Educ. , 226 F. Supp. 2d 401 (S.D.N.Y. 2002) (Bronx 24
Household II ). The preliminary injunction enjoins defendants 25 "from enforcing the New York City Board of Education's Standard 264

Operating Procedure § 5.11 so as to deny plaintiffs' application 1 to rent space in a public school operated by the Board of 2 Education for morning meetings that include religious worship or 3 the application of any similarly-situated individual or entity." 4 From the grant of this preliminary injunction, defendants appeal. 5 The district court and we denied defendants' application for a 6 stay pending appeal. 7 In reviewing the grant of this preliminary injunction, we 8 revisit a dispute that is no stranger to this Court. Although we 9 have reached the merits in this litigation previously, the issues 10 now raised return to us in a different procedural posture, 11 requiring employment of a different standard of review than that 12 used in Bronx Household I . The instant litigation also arises 13 against a backdrop of additional Supreme Court precedent. In 14
Good News Club, a recent school and religion case with facts that 15 parallel in many respects those here, the Supreme Court held that 16 "quintessentially religious" activities could be "characterized 17 properly as the teaching of morals and character development from 18 a particular viewpoint." 533 U.S. at 111. The Supreme Court 19 also reiterated in its Good News Clubdecision that speech 20 discussing otherwise permissible subjects cannot be excluded from 21 a limited public forum on the ground that the subject is 22 discussed from a religious viewpoint. Id. at 109-10. The 23 defendants in this case, like the defendant in Good News Club, 24 have opened the relevant limited public forum to the teaching of 25 morals and character development. Accordingly, we affirm and 265

hold that the district court did not abuse its discretion when it 1 granted plaintiffs' motion for a preliminary injunction. 2
B. Facts 3 On July 6, 2001 plaintiffs wrote to the School District 4 renewing their prior request to rent Middle School 206B, citing 5 the Supreme Court's Good News Clubdecision as the basis for the 6 renewed request. Plaintiffs sought to meet at the school from 7 10:00 a.m. to 2:00 p.m. each Sunday morning, beginning on 8 September 30, 2001, to engage in "singing," "the teaching of 9 adults and children . . . from the viewpoint of the Bible," and 10 "social interaction among the members of [the] church, in order 11 to promote their welfare and the welfare of the community." 12 Frank Pagliuca, Director of School Facilities and Planning 13 for the School District, responded in writing to the church's 14 request, stating that it appeared to intend to use the school for 15 the same purpose -- i.e. , "weekly worship service" -- that the 16 School District had denied in 1994. Mr. Pagliuca's letter 17 reminded plaintiffs that the District's prior denial "was upheld 18 by the Federal Appeals Court," and advised them that if 19 plaintiffs intended different usage than before, they should 20 submit additional information. Plaintiffs state that on August 21 16, 2001 their counsel was informed by Deborah King, Esq., an 22 attorney for the Board of Education, that defendants were denying 23 the church's request for rental space "because the meetings would 24 violate the defendants' policy prohibiting religious services or 25 instruction in the school buildings." 266 Although in this second request to rent space in Middle 1 School 206B, the church did not describe its proposed use as 2 "religious service" or "religious instruction" -- likening it 3 instead to other uses permitted under School Board policy -- the 4 School Board correctly perceived that plaintiffs were, in 5 substance, renewing their prior request to conduct activities 6 that included a weekly worship service. Plaintiffs have since 7 offered a fuller description of the activities in which they seek 8 to engage: 9 The Sunday morning meetings service consists 10 of the singing of Christian hymns and songs, 11 prayer, fellowship with other church members 12 and Biblical preaching and teaching, 13 communion, sharing of testimonies and social 14 fellowship among the church members. 15 16 In our church service, we seek to give 17 honor and praise to our Lord and Savior Jesus 18 Christ in everything that we do. To that end 19 we sing songs and hymns of praise to our 20 Lord. We read the Bible and the pastors 21 teach from it because it tells us about God, 22 what He wants us to do and how we should live 23 our lives. . . . In keeping with ancient 24 tradition, we have a light fellowship meal 25 after the service, which consists basically 26 of coffee, juice and bagels. This gives us 27 opportunity to meet new people, talk to one 28 another, share one another's joys and sorrows 29 so as to be a mutual help and comfort to each 30 other. 31 32

. . . 33 34 The Sunday morning meeting is the 35 indispensable integration point for our 36 church. It provides the theological 37 framework to engage in activities that 38 benefit the welfare of the community. Those 39 who attend the Sunday morning meetings are 40 taught to love their neighbors as themselves, 41 to defend the weak and disenfranchised, and 427 to help the poor regardless of their 1 particular beliefs. It is a venue where 2 people can come to talk about their 3 particular problems and needs. Over the 4 years we have helped people with basic needs 5 such as food, clothing, and rent. We have 6 also provided, by means of counseling, 7 friendship and encouragement, help for people 8 to get out of the multi-generational welfare 9 cycle, to lead productive lives, to leave a 10 life of crime and/or drugs to become 11 responsible citizens, and to counsel people 12 whose personal finances are out of control. 13 14 In one recent case we helped an individual 15 who was about to get evicted. . . . It is 16 through the Sunday meeting where we directly 17 or indirectly learn of these situations and 18 where we can converse with the individuals 19 involved in order to monitor the progress of 20 the issue to be resolved. 21 22 In years past, the church meeting was a 23 very important place for Cambodian Refugees 24 to come in order for us to get to know them 25 so that we could help them with food, 26 clothing and to help them get acclimated to 27 American society. Most of them were 28 Buddhists. 29 30 The Sunday morning meetings of the church are open to all members 31 of the public. The church currently conducts its Sunday meetings 32 in a large house or outdoors under a tent or canopy. The church 33 also owns a vacant lot and asserts that it eventually intends to 34 construct its own building. 35 The School District's denial of the church's request to rent 36 school space -- in 1994 and again in 2001 -- was based on the 37 Education Board's Standard Operating Procedures (SOP) Manual that 38 sets forth a hierarchy of permitted uses of school facilities. 39 According to the SOP Manual, the primary use of school premises 40 must be for programs and activities of the Board of Education. 418

After the Board's programs and activities, school premises may be 1 used for a variety of community activities, including "social, 2 civic and recreational meetings and entertainment, and other uses 3 pertaining to the welfare of the community," as long as these 4 uses are "non-exclusive and open to the general public." 5 Section 5.11 of the SOP Manual -- enumerated as section 5.9 6 at the time of Bronx Household I-- prohibits any "outside 7 organization or group" from conducting "religious services or 8 religious instruction on school premises after school." The same 9 section permits the use of school premises "for the purpose of 10 discussing religious material or material which contains a 11 religious viewpoint or for distributing such material." 12 The School District has over the years permitted a variety 13 of organizations to use school premises for meetings and 14 activities after school hours and on weekends. Examples of 15 organizations that received such permission during the 2000-2001 16 school year include Girl Scouts; the Mosholu Community Center, 17 which organizes sports and other recreational activities; 18 University Heights, which sponsored sports events, holiday shows 19 and activities relating to Black History Month; and Lehman 20 College, which held classes in teaching English as a second 21 language. At the same time, the School District has never 22 granted an application seeking to use school facilities for 23 religious services. 249 We pass now to a discussion of the rules governing the 1 issuance of a preliminary injunction in general, and then apply 2 those rules to this case. 3
DISCUSSION 4 I Standard of Review 5 A district court's grant of a preliminary injunction is 6 reviewed for an abuse of discretion. Such an abuse occurs when 7 the district court bases its ruling on an incorrect legal 8 standard or on a clearly erroneous assessment of the facts. See 9 Fun-Damental Too, Ltd. v. Gemmy Indus. Corp. , 111 F.3d 993, 999 10 (2d Cir. 1997). "A finding is 'clearly erroneous' when although 11 there is evidence to support it, the reviewing court on the 12 entire evidence is left with the definite and firm conviction 13 that a mistake has been committed." United States v. U.S. Gypsum 14
Co. , 333 U.S. 364, 395 (1948). In cases raising First Amendment 15 issues, "an appellate court has an obligation to 'make an 16 independent examination of the whole record' in order to make 17 sure that 'the judgment does not constitute a forbidden intrusion 18 on the field of free expression.'" Bose Corp. v. Consumers Union 19 of United States, Inc. , 466 U.S. 485, 499 (1984) (quoting New 20 York Times Co. v. Sullivan, 376 U.S. 254, 284-286 (1964)). 21 To obtain a preliminary injunction a party must demonstrate: 22 (1) that it will be irreparably harmed if an injunction is not 23 granted, and (2) either (a) a likelihood of success on the merits 24 or (b) sufficiently serious questions going to the merits to make 25 them a fair ground for litigation, and a balance of the hardships 2610

tipping decidedly in its favor. See Forest City Daly Hous., Inc. 1 v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999). 2 Where the requested preliminary injunction would stay government 3 action taken in the public interest pursuant to a statutory or 4 regulatory scheme -- as it does here -- the less rigorous burden 5 of proof standard envisioned by the phrase "fair ground for 6 litigation" does not apply, and instead the party seeking 7 injunctive relief must satisfy the more rigorous prong of 8 "likelihood of success." This higher standard of proof requires 9 judicial deference to those regulations developed through 10 reasoned democratic processes. See id

. 11 Moreover, an even higher standard of proof comes into play 12 when the injunction sought will alter rather than maintain the 13 status quo. In such case, the movant must show a "clear" or 14 "substantial" likelihood of success. See Rodriguez ex rel. 15 Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (per 16 curiam). Because the plaintiffs here sought an injunction that 17 commands a positive act that alters the status quo, the district 18 court correctly required that plaintiffs demonstrate a "clear" or 19 "substantial" likelihood of success on the merits. 20 II Irreparable Harm 21 In determining whether there was an abuse of discretion in 22 the grant of injunctive relief, we first address the issue of 23 irreparable harm. In finding irreparable harm, the district 24 court observed that the plaintiffs' claims implicate First 25 Amendment speech rights that are the bedrock of our liberties, 2611

and concluded that the church will suffer serious damage were an 1 injunction not to issue. Although "[t]he loss of First Amendment 2 freedoms, for even minimal periods of time, unquestionably 3 constitutes irreparable injury," Elrod v. Burns, 427 U.S. 347, 4 373 (1976), we have not consistently presumed irreparable harm in 5 cases involving allegations of the abridgement of First Amendment 6 rights, see Amandola v. Town of Babylon, 251 F.3d 339, 343 (2d 7 Cir. 2001) (per curiam). 8 On the one hand, we have said that since violations of First 9 Amendment rights are presumed to be irreparable, the allegation 10 of a First Amendment violation satisfies the irreparable injury 11 requirement. Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000). 12 On the other hand, we have suggested that, even when a complaint 13 alleges First Amendment injuries, irreparable harm must still be 14 shown -- rather than simply presumed -- by establishing an actual 15 chilling effect. See Latino Officers Ass'n v. Safir, 170 F.3d 16 167, 171 (2d Cir. 1999). 17 Whatever tension may be said to exist in our case law 18 regarding whether irreparable harm may be presumed with respect 19 to complaints alleging First Amendment violations, we think is 20 more apparent than real. Where a plaintiff alleges injury from a 21 rule or regulation that directly limits speech, the irreparable 22 nature of the harm may be presumed. For example, in Tunickan 23 artist was denied a city permit to conduct a photographic shoot 24 of nude models on a residential street. 209 F.3d at 69. In Bery 25 v. City of New York, 97 F.3d 689 (2d Cir. 1996), groups of visual 2612

artists opposed enforcement of a city regulation prohibiting them 1 from exhibiting or selling their work in public places without a 2 general vendor's license; under the regulation, only a limited 3 number of the licenses could be in effect at any time. Id. at 4 691-92. In both cases the challenged government action directly 5 limited speech and irreparable harm was presumed. See Tunick, 6 209 F.3d at 70; Bery, 97 F.3d at 693-94. 7 In contrast, in instances where a plaintiff alleges injury 8 from a rule or regulation that may only potentially affect 9 speech, the plaintiff must establish a causal link between the 10 injunction sought and the alleged injury, that is, the plaintiff 11 must demonstrate that the injunction will prevent the feared 12 deprivation of free speech rights. The Supreme Court instructs 13 us on this issue in Laird v. Tatum, 408 U.S. 1 (1972), that to 14 establish a cognizable claim founded on the chilling of First 15 Amendment rights, a party must articulate a "specific present 16 objective harm or a threat of specific future harm." Id. at 14. 17 Thus, in Latino Officers Ass'n, plaintiffs challenged a 18 police department's requirements that all officers notify the 19 department of their intention to speak before a governmental 20 agency or a private organization about department policy, and 21 that they provide an after-the-fact summary of their comments. 22 170 F.3d at 169, 171. We found the theoretical possibility of a 23 chilling effect on officers' speech too conjectural and 24 insufficient to establish irreparable harm. Id. at 171. In 25 Charette v. Town of Oyster Bay, 159 F.3d 749 (2d Cir. 1998), we 2613

ruled the record insufficient to decide a topless bar operator's 1 motion to enjoin enforcement of a zoning regulation that resulted 2 in the bar's closing. The record contained no evidence 3 indicating how soon after the issuance of the injunction, if at 4 all, the bar could be reopened. Id. at 750-51, 756-57; see also 5 Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv. , 766 F.2d 6 715, 722 (2d Cir. 1985) (reversing a preliminary injunction 7 enjoining employee's discharge pending arbitration because 8 discharge did not chill First Amendment rights of members of 9 union sufficiently to cause irreparable harm). 10 Here, the alleged deprivation of plaintiffs' First Amendment 11 rights results directly from a policy of the defendant Board of 12 Education that prohibits "religious services or religious 13 instruction" in school facilities. Since it is this policy that 14 led to a denial of the church's request to rent space in Middle 15 School 206B and directly limits plaintiffs' speech, irreparable 16 harm may be presumed. Because the plaintiffs' allegations 17 entitle them to a presumption of irreparable harm, the district 18 court's finding that the plaintiffs have fulfilled this 19 requirement for the issuance of a preliminary injunction cannot 20 be said to be an abuse of discretion. 21 III Likelihood of Success on the Merits 22 Given that plaintiffs have demonstrated irreparable harm, we 23 now reach the more difficult issue of whether the district court 24 properly found that plaintiffs had shown a likelihood of success 25 on the merits. As noted earlier, because they seek an injunction 2614

that alters rather than preserves the status quo plaintiffs must 1 satisfy a more rigorous standard of proof and demonstrate a clear 2 or substantial likelihood of such success. Rodriguez, 175 F.3d 3 at 233. 4 In determining whether defendants' denial of the plaintiffs' 5 application to rent the school violates plaintiffs' First 6 Amendment rights, we tread familiar ground. Faced with the same 7 parties and identical facts, we reached the merits of this issue 8
in Bronx Household I, upholding the district court's summary 9 judgment ruling in favor of the defendants Board of Education and 10 School District. Plaintiffs now insist that the Supreme Court's 11 decision in Good News Club, in effect, overruled our holding in 12
Bronx Household I . Judge Preska was persuaded to this view and 13 hence ruled plaintiffs had demonstrated a substantial likelihood 14 of success on the merits of the litigation. In order to 15 ascertain whether this holding was an abuse of discretion, we 16 examine our earlier decision in Bronx Household Iand the Supreme 17 Court's opinion in Good News Club

. 18
A. Bronx Household I 19

In Bronx Household I , we observed that the right to exercise 20 free speech on government property depends on the kind of forum 21 where the speech occurs, noting that the Supreme Court has 22 identified three kinds: the traditional public forum, the 23 designated public forum or "limited public forum," and the 24 nonpublic forum. 127 F.3d at 211 (citing Cornelius v. NAACP 25 Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 802 (1985)). 2615

Although the church argued that Middle School 206B is an open 1 public forum where the exercise of First Amendment rights cannot 2 be excluded absent a compelling state interest, see127 F.3d at 3 212, we were not persuaded that the school was "a place that has 4 been devoted to general, unrestricted public assembly by long 5 tradition or by policy or practice," id. at 213. Instead, we 6 reasoned that the Board of Education, by restricting access to 7 certain speakers and subjects, had created a limited public 8
forum. Id. Within such a limited forum, the government may 9 restrict access based on speaker identity and subject matter, but 10 only if "the distinctions drawn are reasonable in light of the 11 purpose served by the forum and are viewpoint neutral." Id. at 12 211-12 (quoting Cornelius, 473 U.S. at 806). 13 Having decided that the school was a limited public forum, 14 we next addressed the question of whether the Education Board's 15 rule prohibiting religious services and instruction is reasonable 16 and viewpoint neutral. We held it reasonable for state 17 legislators and school authorities to avoid identifying a public 18 school with a particular church, when considering the effect of 19 such identification on the minds of school children. Id. at 214. 20 We also deemed the regulation viewpoint neutral, since it 21 "specifically permits any and all speech from a religious 22 viewpoint." Id. We recognized that religious worship services 23 were barred, but believed a permissible distinction could be 24 drawn between religious worship and other forms of speech from a 25 religious viewpoint. Id. at 215. For those reasons and because 2616

Middle School 206B was a limited public forum, we affirmed the 1 summary judgment ruling in favor of the defendants. 2
B. Good News Club 3 Subsequent to our decision in Bronx Household I , the Supreme 4 Court decided Good News Club v. Milford Central School . At issue 5 in Good News Clubwas defendant Milford Central School's 6 community use policy that prohibited the use of school premises 7 "by any individual or organization for religious purposes." 533 8 U.S. at 103. Because of this policy the school refused to allow 9 plaintiff Good News Club, a private Christian organization for 10 children between the ages of six and 12, to use school premises 11 for activities that included praying, singing, reading, and 12 learning the Bible. The school denied plaintiff's request to use 13 its facilities because it thought "the kinds of activities 14 proposed to be engaged in by the Good News Club were not a 15 discussion of secular subjects such as child rearing, development 16 of character and development of morals from a religious 17 perspective, but were in fact the equivalent of religious 18 instruction itself." Id. at 103-04. 19 The Good News Club sued challenging the school's policy on 20 First Amendment grounds. The district court granted the school's 21 motion for summary judgment and we affirmed, reasoning that the 22 exclusion of the Club's "quintessentially religious" activities 23 was constitutional content discrimination, not unconstitutional 24 viewpoint discrimination. Good News Club v. Milford Cent. Sch. , 25 202 F.3d 502, 510-11 (2d Cir. 2000). The Supreme Court granted 2617

certiorari to resolve the conflict among the circuits "on the 1 question whether speech can be excluded from a limited public 2 forum on the basis of the religious nature of the speech." Good 3
News Club, 533 U.S. at 105. In the context of stating its 4 intention to resolve that conflict, the Court mentioned our 5 opinion in Bronx Household Iand noted that it was on the same 6 side of the split as Campbell v. St. Tammany's School Board, 206 7 F.3d 482 (5th Cir. 2000), a decision relying in part on our 8 opinion in Bronx Household I, and one which the Supreme Court 9 subsequently vacated and remanded in light of Good News Club, see 10 Campbell v. St. Tammany's Sch. Bd. , 533 U.S. 913 (2001). See 11
Good News Club, 533 U.S. at 105-06. 12 In reversing the judgment of this Court, a divided Supreme 13 Court found that by excluding the meetings of the Good News Club 14 while allowing other types of instruction on moral and ethical 15 issues the school maintained an exclusionary policy that 16 "constitutes viewpoint discrimination." Id. at 107. The 17 majority characterized the Club's proposed activities as teaching 18 morals and character from a religious perspective. It did not 19 think something that is "'quintessentially religious' or 20 'decidedly religious in nature' cannot also be characterized 21 properly as the teaching of morals and character development from 22 a particular viewpoint." Id. at 111. Because the school allowed 23 teachings about morals and character from a variety of other, 24 secular perspectives, the Court continued, the school could not 25 legally exclude the Club's meetings solely because of the 2618

religious viewpoint it advocated. Id. at 111-12. The Court 1 concluded by stating, "What matters for purposes of the Free 2 Speech Clause is that we can see no logical difference in kind 3 between the invocation of Christianity by the Club and the 4 invocation of teamwork, loyalty, or patriotism by other 5 associations to provide a foundation for their lessons." Id. at 6
111. 7 Significantly, the majority found no meaningful distinction 8 between the case before it and Lamb's Chapel v. Center Moriches 9 Union Free School District, 508 U.S. 384 (1993). Good News Club, 10 533 U.S. at 111-12. In Lamb's Chapel, the Supreme Court held 11 that a school could not prohibit an outside group's demonstration 12 of a film about family values simply because the film addressed 13 the issue from a religious perspective, where the school 14 admittedly would have allowed demonstration of a film addressing 15 family values from a secular perspective. 508 U.S. at 393-94. 16
The Good News Clubmajority reasoned that the Club -- like the 17 Lamb's Chapelplaintiffs -- was seeking "to address a subject 18 otherwise permitted [in the school], the teaching of morals and 19 character, from a religious standpoint." The fact that the Good 20 News Club proposed to conduct the teaching through "storytelling 21 and prayer" rather than through film, as in Lamb's Chapel, was an 22 "inconsequential" distinction. 533 U.S. at 109-12. 23 The dissenting members of the Supreme Court -- Justices 24 Stevens, Souter, and Ginsburg -- perceived the speech at issue in 25
Good News Clubto be sufficiently different from that in Lamb's 2619

Chapelto require the opposite result. Justice Stevens drew a 1 distinction between three types of speech for religious purposes: 2 (1) "religious speech that is simply speech about a particular 3 topic from a religious point of view," such as the film at issue 4 in Lamb's Chapel, (2) "religious speech that amounts to worship, 5 or its equivalent," and (3) an "intermediate category that is 6 aimed principally at proselytizing or inculcating belief in a 7 particular religious faith." The Good News Club's meetings, in 8 his estimation, fell into the third or proselytizing category. 9 533 U.S. at 130, 133 (Stevens, J., dissenting). 10 Justice Souter was of the opinion that "Good News intends to 11 use the public school premises not for the mere discussion of a 12 subject from a particular, Christian point of view, but for an 13 evangelical service of worship calling children to commit 14 themselves in an act of Christian conversion." Id. at 138 15 (Souter, J., dissenting). He emphasized that the Club's intended 16 activities included elements of worship that made the case as 17 different from Lamb's Chapel"as night from day." Id. at 137. 18 Justice Souter further observed that the Club's meetings opened 19 and closed with prayer, and that at the heart of each meeting was 20 "the challenge," when the already "saved" children were invited 21 to ask God for strength; and "the invitation," when the teacher 22 would "invite" the "unsaved" children to "receive" Jesus as their 23 "Savior from sin." Id. at 137-38. This dissenting justice 24 criticized the majority's characterization of the Club's 2520

activities as "teaching of morals and character, from a religious 1 standpoint" as ignoring reality. Id. at 138-39. 2 The Supreme Court majority was not persuaded by the 3 distinction drawn by the dissenters between speech from a 4 religious perspective on the one hand and worship or 5 proselytizing on the other. It did agree with Justice Souter's 6 description of the Club's activities, which we just related, but 7 concluded that those activities "do not constitute mere religious 8 worship, divorced from any teaching of moral values." 533 U.S. 9 at 112 n.4. The majority saw "no reason to treat the Club's use 10 of religion as something other than a viewpoint merely because of 11 any evangelical message it conveys." Notwithstanding Justice 12 Souter's forcefully expressed challenge, it explicitly rejected 13 his characterization of the Club's activities as an "evangelical 14 service of worship," saying that "[r]egardless of the label 15 Justice Souter wishes to use, what matters is the substance of 16 the Club's activities, which we conclude are materially 17 indistinguishable from the activities in Lamb's Chapeland 18 Rosenberger[ v. Rector and Visitors of Univ. of Va. , 515 U.S. 19 819, 832 (1995) (holding that a university's refusal to pay a 20 third-party contractor for the printing costs of a student 21 publication, based on the publication's religious editorials, was 22 viewpoint discrimination)]." Id

. 2321 IV Resolution of Instant Appeal 1 A. Free Speech 2 Having laid out for purposes of comparison our holding in 3
Bronx Household Iand the Supreme Court's Good News Clubopinion, 4 we turn to an analysis of Bronx Household II , the appeal 5 presently before us. We start with the holding of the trial 6 court. In granting plaintiffs' motion for a preliminary 7 injunction it relied on the Supreme Court's holding in Good News 8
Club, believing that the activities proposed by the plaintiff 9 church are similar to those in Good News Club . The trial court 10 also thought that, after Good News Club, religious worship could 11 not be treated as an inherently distinct type of activity, and 12 was instead comparable to other activities involving ritual and 13 ceremony, such as Boy and Girl Scout meetings. Additionally, it 14 viewed the distinction between worship and other types of 15 religious speech as one that cannot meaningfully be drawn by the 16
courts. 17 Based upon our reading of the Supreme Court's decision in 18
Good News Club, we do not think the district court abused its 19 discretion in determining that the plaintiffs were substantially 20 likely to establish that defendants violated their First 21 Amendment free speech rights. Central to our conclusion is a 22 candid acknowledgment of the factual parallels between the 23 activities described in Good News Cluband the activities at 24 issue in the present litigation. 2522 Although the majority in Good News Clubcharacterized the 1 Club's activity as "the teaching of morals and character 2 development from a particular viewpoint," 533 U.S. at 111, this 3 characterization cannot be divorced from Justice Souter's 4 detailed description of the Club's activities that the majority 5 adopted as accurate. Id. at 112 n.4. In Justice Souter's view, 6 the Club's meetings did not consist solely of teaching, but also 7 included elements consistent with "an evangelical service of 8 worship." Id. at 138 (Souter, J., dissenting). The majority did 9 not say that the meetings were somehow distinct from worship 10 services, but simply observed that they were not "mere religious 11 worship, divorced from any teaching of moral values." Id. at 112 12
n.4. 13 We find no principled basis upon which to distinguish the 14 activities set out by the Supreme Court in Good News Clubfrom 15 the activities that the Bronx Household of Faith has proposed for 16 its Sunday meetings at Middle School 206B. Like the Good News 17 Club meetings, the Sunday morning meetings of the church combine 18 preaching and teaching with such "quintessentially religious" 19 elements as prayer, the singing of Christian songs, and 20 communion. The church's Sunday morning meetings also encompass 21 secular elements, for instance, a fellowship meal during which 22 church members may talk about their problems and needs. On these 23 facts, it cannot be said that the meetings of the Bronx Household 24 of Faith constitute only religious worship, separate and apart 25 from any teaching of moral values. 533 U.S. at 112 n.4. 2623 Because the Board of Education has authorized other groups, 1 like scout groups, to undertake the teaching of morals and 2 character development on school premises, there is a substantial 3 likelihood that plaintiffs would be able to demonstrate that the 4 Board cannot exclude, under Supreme Court precedent, the church 5 from school premises on the ground that the church approaches the 6 same subject from a religious viewpoint. Additionally, the 7 defendants' school building use policy permits social, civic and 8 recreational meetings and entertainments, and other uses 9 pertaining to the welfare of the community, so long as these uses 10 are non-exclusive and open to the public. Therefore, there is a 11 substantial likelihood that plaintiffs would be able to 12 demonstrate that the defendants cannot bar the church's proposed 13 activities without engaging in unconstitutional viewpoint 14 discrimination. 15 We hold the district court did not commit an error of law or 16 fact and therefore did not abuse its discretion by determining 17 that plaintiffs were substantially likely to establish that 18 defendants violated their First Amendment free speech rights. 19 Our ruling is confined to the district court's finding that the 20 activities plaintiffs have proposed for their Sunday meetings are 21 not simply religious worship, divorced from any teaching of moral 22 values or other activities permitted in the forum. 23 We decline to review the trial court's further 24 determinations that, after Good News Club, religious worship 25 cannot be treated as an inherently distinct type of activity, and 2624

that the distinction between worship and other types of religious 1 speech cannot meaningfully be drawn by the courts. We recognize 2 that these conclusions are in obvious tension with our previous 3 holding that a permissible distinction may be drawn between 4 religious worship and other forms of speech from a religious 5 viewpoint, Bronx Household I, 127 F.3d at 215, a proposition that 6 was seriously undermined but not explicitly rejected in Good News 7
Club . It is unnecessary for us to reach these issues in order to 8 affirm the trial court's grant of a preliminary injunction in 9 this case. 10 We pause, however, to note some unresolved issues that arise 11 from the recent Supreme Court precedent that, as an appellate 12 court, we are bound to follow. Would we be able to identify a 13 form of religious worship that is divorced from the teaching of 14 moral values? Should we continue to evaluate activities that 15 include religious worship on a case-by-case basis, or should 16 worship no longer be treated as a distinct category of speech? 17 How does the distinction drawn in our earlier precedent between 18 worship and other forms of speech from a religious viewpoint 19 relate to the dichotomy suggested in Good News Clubbetween 20 "mere" worship on the one hand and worship that is not divorced 21 from the teaching of moral values on the other? 22 Further, how would the state, without imposing its own views 23 on religion, define which values are morally acceptable and which 24 are not? And, if such a choice is impossible to make, would the 25 state be required to permit the use of public school property by 2625

religious sects that preach ideas commonly viewed as hateful? 1 When several religious groups seek to use the same property at 2 the same time, would not the state have to choose between them? 3 What criteria would govern that choice? In all of this process, 4 is there not a danger of excessive entanglement by the state in 5 religion? 6 How the Supreme Court answers these difficult questions will 7 no doubt have profound implications for relations between church 8 and state. The American experiment has flourished largely free 9 of the religious strife that has stricken other societies because 10 church and state have respected each other's autonomy. Religion 11 and government thrive because each, conscious of the corrosive 12 perils of intrusive entanglements, exercises restraint in making 13 claims on the other. The beneficiaries are a diverse populace 14 that enjoys religious liberty in a nation that honors the 15 sanctity of that freedom. 16 B. Establishment Clause 17 We must resolve one final issue, that is, whether it is 18 substantially likely that defendants will not succeed in 19 demonstrating that their denial of plaintiffs' application is 20 necessary to avoid a violation of the Establishment Clause. 21 The First Amendment to the United States Constitution, 22 applicable to the states under the Fourteenth Amendment, 23 prohibits the enactment of any "law respecting an establishment 24 of religion." U.S. Const. amend I. Defendants maintain that, 25 even if their actions infringe on plaintiffs' First Amendment 2626

rights, the infringement is justified because it is necessary to 1 avoid an appearance of state endorsement of religion and 2 excessive entanglement between state and religion, in violation 3 of the Establishment Clause. 4
In Good News Club, the majority acknowledged that a state's 5 interest in avoiding an Establishment Clause violation "may be 6 characterized as compelling, and therefore may justify content7 based discrimination." 533 U.S. at 112. The Court then noted 8 that, although its precedent did not yet establish whether that 9 interest may also justify viewpoint-based discrimination, it did 10 not need to resolve the issue because the school did not have a 11 valid Establishment Clause interest. Id. at 113. In so ruling, 12 the Supreme Court emphasized that the Good News Club's meetings 13 were held after school hours, were not sponsored by the school, 14 and were open to all students who obtained parental consent. It 15 also noted that the school had made its forum equally available 16 to other organizations. Id

. 17 In addition, the Supreme Court rejected the argument that 18 the young age of the children attending the elementary school 19 impermissibly increased the danger of misperception of 20 endorsement, stating that the Court had "never extended [its] 21 Establishment Clause jurisprudence to foreclose private religious 22 conduct during nonschool hours merely because it takes place on 23 school premises where elementary school children may be present." 24
Id. at 115. The Court emphasized that "even if [it] were to 25 inquire into the minds of schoolchildren in [that] case, [it 2627

could not] say the danger that children would misperceive the 1 endorsement of religion [was] any greater than the danger that 2 they would perceive a hostility toward the religious viewpoint if 3 the Club were excluded from the public forum." Id. at 118. 4 Relying on the Supreme Court's Good News Clubrationale, the 5 district court here concluded that there was a substantial 6 likelihood that the church would be able to demonstrate that the 7 School Board does not have a valid Establishment Clause interest 8 because the proposed meetings: (1) occur on Sunday mornings, 9 during nonschool hours; (2) are not endorsed by the School 10 District; (3) are not attended by any school employee; (4) are 11 open to all members of the public; (5) and there is no evidence 12 that any school children would be on the school premises on 13 Sunday mornings or would attend the meetings. To this list the 14 district court might have added that the church apparently 15 intended to pay rent for the use of the space. The district 16 court believed that by allowing the meetings defendants were more 17 likely to demonstrate neutrality toward religion, and would 18 therefore probably not violate the Establishment Clause. 19 In light of the Supreme Court's refusal to find a valid 20 Establishment Clause interest in Good News Club, and the strong 21 factual similarities between this case and Good News Club, the 22 district court's ruling is adequately supported at this stage of 23 the litigation. The dissent's conclusion to the contrary, in our 24 estimation, misapplies the necessarily deferential standard of 25 review. We hasten to add, however, that this issue is factual 261For this very reason, the opening sentence of the dissent

severely mischaracterizes the impact of our holding. 28 and its resolution in favor of plaintiffs now does not foreclose 1 the possibility that defendants may, with further development of 2 the record, ultimately prevail on it. 1 3
C. Res Judicataand Collateral Estoppel 4 As an endnote in our analysis, we hold the district court 5 did not abuse its discretion in concluding that plaintiffs' 6 claims were not barred by the principles of res judicataand 7 collateral estoppel. Although defendants contend that 8 plaintiffs' claims are barred by these doctrines they concede 9 that a change in a controlling legal principle precludes their 10 application. The defendants' argument that no such change has 11 occurred is answered by our discussion. 12
CONCLUSION 13 In sum, in the district court's grant of plaintiffs' motion 14 for a preliminary injunction we find no errors of law or clearly 15 erroneous findings of fact that could be said to constitute an 16 abuse of discretion. The trial court properly found that the 17 plaintiffs' claims are entitled to a presumption of irreparable 18 harm and that, in light of the Supreme Court's opinion in Good 19
News Club, plaintiffs are substantially likely to prevail on the 20 merits. 21 The grant of a preliminary injunction is accordingly 22 affirmed. 23