Public Sector Attacks

Targeting Churches-Voting, Zoning, and Other Issues

One weapon used with increasing frequency by opponents of religious liberty is zoning law. The government wields enormous power in its decisions concerning how communities shall be organized and in determining whether to allow certain activities and to criminalize forbidden conduct. The power to enact zoning laws includes the power to license activities. Through a concerted effort of groups such as the American Planning Association, the National League of Cities, and the International Lawyers Association, municipalities across America are using local zoning ordinances to restrict and exclude churches in various areas. Churches used to be seen as an automatic enhancement to local neighborhoods, and cities routinely granted them special exemptions from their zoning rules, but in today's climate of growing hostility toward religion, houses of worship are seen as less desirable.

Often, the application of these laws requires subjective judgments by the zoning authorities. The less sympathetic these bodies are to encroachments on civil liberties, the more churches are at risk, and to the extent that churches are viewed in an unfavorable light, which they sometimes are, they will be afforded even less protection. The small city of Castle Hills, Texas, for example, actually compared Castle Hills Baptist Church to cancer, saying in a lawsuit against the church that it "seems to grow like a cancer, feeding on homes in much the same way as a cancerous tumor feeds on healthy cells."

Local governments are discriminating against churches in a number of ways. Some authorities are excluding them from commercial districts, often because they are tax-exempt. Others are disallowing them in areas where non-religious groups are welcomed and are restricting how they may use their property. Fairly recently, three separate communities in Rhode Island denied churches permits to build in commercially zoned districts. A Michigan community refused to allow a church to meet at a shopping center despite granting access to non-religious groups. A county in Washington State has tried to enact laws regulating-mostly limiting-the size of churches and private schools.

The issue of what constitutes a church arose when the town of St. Petersburg, Florida, ordered the Refuge, an inner-city church, to vacate an area zoned to permit churches. The church's ministry includes worship services, Bible studies, Bible-based counseling, outreach ministries, and evangelism. But because the Refuge ministers to the poor and needy, zoning officials arbitrarily concluded it was a social service agency rather than a church, and thereby required the church to vacate since social service agencies are not permitted in the district where Refuge's facility is located. Making matters worse, there wasn't a single district in the city where social service agencies had an automatic right to locate. The city, in its brief to the court, haughtily argued that a church doesn't become a church simply by labeling itself as one. "What's in a name?" it asked. "A rose still smells like a rose regardless of the name by which it is called. [But] if the rose begins to smell like a stinkweed, it can still call itself a rose and may look like one, but it is no longer functioning as one, and so it is eventually going to have a negative impact on the rose garden and be weeded out." So the church that specializes in serving the poor is not a church, but a stinkweed that must be weeded out. A three-judge panel for the Pinellas-Pasco Circuit Court ruled, however, that the Refuge was a church, and the church was permitted to stay.

While the Refuge ultimately prevailed, churches are facing opposition all over the country. The argument is not that churches should be immune from fire, safety, traffic, and other reasonable zoning regulations. But as the Refuge's Reverend Barbara Richards asked, "How can anybody come in and tell a church what they can or can't do? The size the congregation needs to be? It's ludicrous. It's an attack on people's freedom of religion." But telling a church what it could or could not do was exactly what happened in Portland, Oregon, where the zoning authority told the Sunnyside Centenary United Methodist Church that it would have to curtail its meals program for low-income families and the homeless. It also ordered that its attendance at events, including Sunday worship, should be limited to seventy people and, even further, restricted Wednesday night Bible classes and other uses of the church facility.

In 2000, Congress reacted to the increasingly negative trend against churches by enacting the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), forbidding discrimination against churches by local zoning authorities. Requiring government to treat churches on "not less than equal terms" with other assembly groups, the law established a standard of strict scrutiny-the highest standard-by which zoning laws burdening the free exercise of religion would be reviewed by the courts. Under the law, cities must now show a compelling governmental interest to prevail, and churches are using the act to defend themselves against unfair treatment through-out the country. Cassadaga, Florida, for example, was filled with "spiritualists" who believed they communicated with the dead, and there were no Protestant, Catholic, or Jewish congregations in the area. A Christian congregation with plans to begin a church purchased an acre of land outside the city, but when it applied for zoning approval, the county summarily denied it, yielding to pressure from the spiritualists who said they didn't want to be evangelized. The Alliance Defense Fund filed suit on behalf of the church, citing the Constitution and RLUIPA, and the county relented and agreed to let the church locate on the grounds.

In 1997, the Vineyard Christian Fellowship, a Chicago-area church, purchased an office building for $1.2 million with plans to convert it to a church. Two days before the transaction was scheduled to close, the city council denied the church's request for an amended zoning ordinance and special-use permit. The church proceeded to closing, convinced it had the legal right-and could persuade the council accordingly-to use the building for church purposes. But the city did not change its position, and the church was forced to use the building for office purposes only and had to rent other space for church services for a number of years, to the tune of nearly half a million dollars. Although the city denied the church permission to hold worship services in the building, it allowed the Masons and other organizations to hold their events there. The church sued the city in federal court for violating its constitutional rights of free speech, assembly, and religious exercise. The church also charged that the city was in violation of the Religious Land Use and Institutionalized Persons Act. The court ruled in favor of the church.

Zoning officials of Brighton Township, Pennsylvania, refused to permit the Beaver Assembly of God to build a church on its property because it was only 3.2 acres and the city requires that churches be on tracts with a minimum of five acres. The church had outgrown its small facility, located on the property before the enactment of the five-acre requirement. The city places no such burden on non-religious assembly groups. Under the code, schools are subject to a two-acre minimum, and other organizations, including strip clubs and porn shops, face no minimums at all. It is difficult to imagine how a small church with limited resources could comply with the requirement.

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