For several years, throughout 2000 and 2001, the Fifth Avenue Presbyterian Church in New York City had a formal policy of allowing homeless people to sleep on the church's steps and on portions of the sidewalk on Fifth Avenue that are church property. The church operates a homeless shelter in the basement of the church, but it is limited to ten elderly men who receive counseling and whom the church tries to help move to permanent housing. As the pastor put it in a recent sermon, "We have ten homeless men who stay inside, but we've got about 25 or 30 who sleep outside the building . . . these homeless friends are part of our ministry . . . Outside on our signboard there's a sign that says This is God's House, All Are Welcome. All are welcome, and we mean it."
For a while, the City of New York tolerated the situation, but toward the end of 2001, officials informed the church that allowing the homeless to sleep outside would no longer be tolerated. In December, they rousted the homeless people out of their sleep and cleared the steps and street. The church filed suit, challenging the city's actions as violating the U.S. Constitution and RLUIPA.
Shortly before Christmas 2001 U.S. District Judge Lawrence M. McKenna issued a temporary restraining order barring the city from removing the homeless from the church steps, and on January 4, 2002, he ruled in part for the church and in part for the city. He held that the city could not remove the homeless on the steps and landings of the church, but that they could remove homeless who were on church-owned portions of the sidewalk. On January 17, 2002, the city appealed the portion of the court's ruling that allowed the homeless to remain on the steps.
On March 15, 2002, The Becket Fund for Religious Liberty filed an amicus curiae brief with the U.S. Court of Appeals for the Second Circuit on behalf of itself and a number of other religious groups, including the Baptist Joint Committee on Public Affairs, the Christian Legal Society, the General Assembly of the Presbyterian Church (USA), the Council of Churches of the City of New York, the General Conference of Seventh-Day Adventists, The Interfaith Assembly on Homelessness and Housing, the Queens Federation of Churches, and the Rutgers Presbyterian Church.
The brief urged the appeals court to affirm Judge McKenna's ruling, on grounds that "the City has made no showing that its removal of the homeless from the Church's steps is supported by any compelling government interest, nor has it met the further requirement that its actions be the least restrictive means of pursuing that interest."
The amicus brief stated that "the threshold question in this case is whether the practices of the Fifth Avenue Presbyterian Church at issue here are religious, a point that the Defendants (the "City") take great efforts to try to refute. The City, while acknowledging, as it must, that caring for the poor is a commonly recognized religious activity, takes issue with this particular church's manner of serving the poor." But, it continues, "it is constitutionally irrelevant whether the Chruch's practices are religious in the eyes of the city, or whether th Church lives up to some common understanding of what faith-based charity should be. What matters for constitutional purposes is whether the Church sincerely believes that it is engaging in religious activities," which it clearly does.
Thus, the brief argued, "both the Free Exercise Clause of the United States Constitution and the recently enacted Religious Land Use and Institutionalized Persons Act (RLUIPA) require that strict scrutiny be used to analyze the City's removal of the homeless from the Church's steps."
On June 12, 2002, the Second U.S. Circuit Court of Appeals affirmed Judge McKenna's issuance of a preliminary injunction against the city. "We agree with the District Court that on the present record, the Church has demonstrated a likelihood of success in establishing that its provision of outdoor sleeping space for the homeless effectuates a sincerely held religious belief and therefore is protected under the Free Exercise Clause." (Fifth Avenue Presbyterian Church v. The City of New York, Docket 02-7073, U.S. Circuit Court of Appeals for the Second Circuit)