A church service at a public school, more than run-of-the-mill religious expression, could constitute “establishment,” the circuit court wrote. “The place has, at least for a time, become the church.”

After more than 16 years of litigation, the U.S. Supreme Court ended an appeal of a ban on churches renting out public schools with a simple word: “denied.”

The high court, in rejecting the church’s appeal in Bronx Household of Faith v. Board of Education of the City of New York, affirmed New York City’s ban on renting out public school facilities for religious worship services. The schools can rent out their facilities to any other organization as long as it is not conducting “religious worship services.” The board charges a nominal fee to groups using its facilities, not full rent.

The 2nd U.S. Circuit Court of Appeals upheld the ban 2-1 in a June decision, writing that the New York rule “bars a type of activity. It does not discriminate against any point of view.” The opinion continued, “The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view,” which the New York City Board of Education allows.

The high court, like usual, did not elaborate on why it denied the case. (Though it noted that Justice Sonia Sotomayor sat out the decision.) Jordan Lorence, an attorney with the Alliance Defense Fund who was working on the church’s case, was “very surprised” at the court’s denial.

“The 2nd Circuit’s decision deviated quite significantly from what the Supreme Court has said,” he noted, citing at least five decisions dating back to 1981.

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