(1935), in the case of Lewis v. Board of Education of City of New York, 157 Misc. 520, 285 N.Y.S. 164 (Sup.Ct. 1935), aff’d per curiam, 247 App.Div. 106, 286, N.Y.S. 174 (App.Div 1936), stated:
The plaintiff alleged that the board of education illegally allowed the use of school buildings to a large number of distinctively sectarian religious denominations, societies and groups. Held—
The manifest vice of the plaintiff’s position is that he has confused the racial and religious affiliations of the users of the school buildings with the purpose for which the buildings are used. The restrictions relate to the use. In this land where all races and creeds are equal before the law, regardless of color or religion, the doors of the schools should not be shut in the faces of those who by birth or otherwise belong to a particular race or adhere to a particular religion. Indeed, by opening the doors to all, the school authorities more honestly and faithfully cling to the enduring principles of our free institutions, and more sincerely and indiscriminately sustain the constitutional guarantees, than do those who would deny admission to certain persons because of creed or racial solidarity. The sanctified principle of freedom of religious belief does not distinguish between believers and nonbelievers. It embraces both, and accords one as much protection and freedom as the other. A sect or tenet which is intolerant of those of a different sect or tenet is the precise antithesis of religious liberty. Freedom is negated if it does not comprehend freedom for those who believe as well as those who disbelieve. The law is astute and zealous in seeing to it that all religious beliefs or disbeliefs be given unfettered expression. Authentic free thinking involves the indubitable right to believe in God as well as the unfettered license not to believe or to disbelieve in a Deity.
To examine into the sectarianism of those seeking access to public school buildings would make a travesty of our glorified liberty of conscience. Liberty for nonbelievers in God, but denial to believers in a Deity, would be a mock liberty.
Rather than inimical to the educational policy of the state, or subversive of legitimate use, it is a wholesome thing to have the school buildings, which are maintained at large expense by the taxpayers, used for the purposes and by the groups whose exclusion is here sought. [The plaintiff sought to exclude racial and religious groups, including the YMCA, Hi-Y clubs, Hebrew Menorah and Junior Hadassah Clubs from the use of public schools for assembly and conducting ethical, cultural, and educational discourses with the students.]
It is the use to which the school buildings are put, and not the identity of the users that is decisive of the lawfulness of the use.
Manifestly, therefore, the defense set forth in paragraph X of the answers, to the effect that the school buildings are being used for the purpose of giving and receiving instruction in education learning, and the arts is legally sufficient.3878