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Surveys suggest that about twelve percent of Evangelical Christian churches assemble for worship each week in local school buildings. Most of these churches meet Sunday after Sunday without trouble. However, in the last five years, a handful of school districts have banned Christian churches from using their facilities for worship services. Most notoriously, New York City school officials adopted a policy denying access to anyone seeking to use school space as a “house of worship.” Some of the churches faced with these bans have responded with legal action. They and their attorneys maintain that these worship bans violate the First Amendment doctrine of equal access—the notion that once the government opens its facilities, it must extend access to religious and nonreligious groups alike. But this argument is shortsighted. Equal access is rooted in a principle of equal protection—that the speech proposed by the religious group is “similarly situated” to the nonreligious speech already permitted by the government. That means for churches to leverage equal access they must analogize their weekly worship services to secular speech activities, like pep rallies and political speeches. Churches certainly can stretch religious worship to make these comparisons, but, in the process, they strip worship of its distinct spiritual character. The Swiss theologian, Karl Barth, described Christian worship as “the most momentous, the most urgent, the most glorious action that can take place in human life.” No matter how exciting the football game or how compelling the political candidate, secular expression will never rise to the level of “momentous,” “urgent,” and “glorious.” For churches to argue otherwise degrades religious worship. A far better solution is for churches to challenge worship bans under the Free Exercise Clause. The Free Exercise Clause, by its very nature, recognizes religious worship as special—a sui generis form of expression. The clause, thus, imposes no requirement on churches to equate worship with any other type of expression. Churches can seek to vindicate their rights while at the same time preserving the unique character of worship.

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Northern Illinois University Law Review

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Timothy J. Tracey, Just Because You Can, Doesn’t Mean You Should: Equal Protection, Free Speech, and Religious Worship, 36 N. Ill. U. L. Rev. 58 (2015).

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