Uneasy neighbors

Most Americans consider themselves religious, yet in many communities and counties across the country, houses of worship are no longer seen as desirable neighbors.

In Los Angeles's Hancock Park neighborhood, Rabbi Chaim Rubin's small congregation of mostly elderly Orthodox Jews has been refused a permit to gather in a home for services; they were told that doing so would be a "detriment to the quality of life."

In Frederick, Md., as the county tries to control growth, the Islamic Society was recently denied access to water and sewer lines for a mosque on land where access had previously been granted to a baseball complex.

A United Methodist church in Portland, Ore., and a Baptist church in Richmond, Va., were pressured to curtail programs for the homeless, and told how many people they could feed. One zoning official set a limit, later rescinded, on the number of worshippers allowed at the Methodist church.

In affluent Belmont, Mass., local property owners are fighting the zoning board's decision allowing variances to the Church of Jesus Christ of Latter-day Saints for a 94,000-square-foot temple. The temple will open Oct. 1 without its traditional six spires or a board-approved 139-foot steeple. The case may end up in the Supreme Court.

While issues of building size and traffic are familiar local concerns, religious groups say the problems they confront today are diverse: from zoning codes that favor secular over religious uses, to discrimination against certain faiths, to exclusion of churches altogether from land-use plans.

And the problems arise more frequently. So much so, that the US Congress passed a new law this summer to protect religious institutions from land-use restrictions that excessively burden the exercise of religion.

But what faith groups see as essential to restore religious liberty, local governments and historic preservation groups see as an improper and unwarranted intrusion into local decisionmaking. The new bill, which President Clinton is expected to sign, highlights the tension between the right to assemble and worship freely and the authority of local jurisdictions to establish land-use rules that apply to everyone.

A compelling reason for restriction

The bill doesn't exempt churches from zoning regulations, but when religious groups show that the rules would create "a substantial burden," officials must show a compelling reason for doing so, and must do it in the least restrictive way. They must also treat religious applicants at least as well as they do secular ones.

"In the wake of the Supreme Court's 1990 decision lowering the Constitutional protection of 'free exercise' of religion, there are several problems in this realm," says Melissa Rogers, general counsel for the Baptist Joint Committee, but "this bill was geared toward the most pervasive ones." A coalition of 50 religious and civil rights groups worked for passage of The Religious Land Use and Institutionalized Persons Act. (The bill also deals with religious rights in prisons, hospitals, and group homes.)

Local governments and planning officials insist, however, that widespread discrimination has not been demonstrated. "We don't see it as a protection of religious freedom, but a preferential establishment of an exemption from general community standards," says Randy Arndt, spokesman for the National League of Cities. Larry Naake, executive director of the National Association of Counties, warned senators that the bill would require "expenditure of significant resources ... to defend against frivolous lawsuits."

Also, many religious buildings are among America's historic treasures, and leaders at The National Trust for Historic Preservation worry the bill will result in demolition of some now protected by landmark laws. It was in a Texas landmark case (City of Boerne v. Flores, 1997) that the US Supreme Court declared unconstitutional the 1993 Religious Freedom Restoration Act (RFRA).

When the city refused to give the Archbishop of San Antonio a permit to demolish all but the facade of a 1923 church, the church went to court under the RFRA. After the law was overturned, the church compromised with the city, allowing 80 percent of the church to remain, along with a new structure. Trust officials say the new law will encourage churches to rush to litigation, and cities may capitulate.

Ms. Rogers, though, says it has gone the other way since the Boerne decision. "We're facing the situation now where [cities] have been overzealous with religious groups. There needs to be some check on that authority."

Small religious groups most at risk

It has also become clear that small religious groups are vastly overrepresented in church-zoning cases. A 1997 study by Brigham Young University and the law firm of Mayer, Brown & Platt revealed that minority religions that represent just 9 percent of the US population were involved in more than 49 percent of cases regarding location of facilities.

"Small faiths are forced to litigate far more often.... The land-use authorities are less sympathetic to their needs and react less favorably to their claims," according to Douglas Laycock, professor of law at the University of Texas.

Marc Stern, an attorney at the American Jewish Congress, says: "You'd be amazed at how many cases involve Orthodox Jewish synagogues and small evangelical churches."

The Hancock Park congregation in Los Angeles is a poignant case in point. Orthodox Jews do not use mechanical conveyances on the Sabbath, so members must walk to services. Yet the city has persistently refused to allow a group of 50 elderly people to meet in a home, although it does not have a sign outside and is located on a street where 84,000 cars pass by daily. The city doesn't want places of worship in the neighborhood, which contains schools, recreational facilities, embassies, and a law school.

"Increasingly, secular uses are permitted, but not religious ones," says Mr. Stern. He tells of a case in Surfside, Fla., where a tourism district has been set up. "You can rent a hotel auditorium for anything you want, but to hold a religious service, you must seek a permit - and it was not forthcoming." In some places, he adds, people may have book clubs in their homes but not Bible classes.

Because land-use regulation is carried out through individualized processes, it is also susceptible to other forms of discrimination, observers say. Sometimes after citizens express bigoted views in hearings, a negative decision by the zoning board is unconvincingly couched in language about traffic or aesthetics.

In Palos Heights, Ill., a mosque foundation moved to purchase a church that the city had already considered but rejected as a recreational facility. But when the purchase became known, some citizens pressed to have the city buy it anyway. The city council offered the association $200,000 to, in effect, go away. Weary of the fight, it accepted, but the mayor vetoed the offer as inappropriate.

Orthodox synagogues, Stern says, frequently run into the "we don't want to look like Brooklyn" attitude. And, he adds, "I've had zoning officials tell me, 'We know under state law we can't keep out this house of worship, but we're going to do it because it's politically popular. You can take it to the courts - that's fine with us.' "

Gallup polls show, Mr. Laycock testified, that many people who are moderately religious "are hostile to those who are more intensely religious," particularly "fundamentalists" and minority sects. A small group is hostile toward religion altogether, and "this view is overrepresented in elite positions," he says.

Another tendency is for land-use plans to bar religious institutions. Many suburbs don't want more churches because of "quality of life" concerns, and cities bar storefront and other churches because they want taxpaying entities.

In 1994, the application of the Church of Jesus Christ of Latter-day Saints to build a temple in Forest Hills, Tenn., was rejected due to the "suburban estates character of the area." The city had developed a plan limiting new development to single-family dwellings and an "education and religious zone" for existing schools and churches. Although the church sought to build near other churches and modified its design to be compatible in size, it was not allowed.

To religious groups, the new bill begins to restore a balance lost when the Supreme Court said in 1990 that, in most cases, the government no longer needs a compelling reason to restrict religious practice (Employment Division v. Smith). Rogers says the bill takes into account the constitutional problems that nullified the RFRA. But the National League of Cities sees it otherwise, and has promised in its weekly publication "to work aggressively ... in mounting the best possible legal challenges."

Meanwhile, some people hope for less litigation. "The statute is going to give us increased leverage with zoning authorities," Stern says, "and I hope that will lead to greater negotiation between zoning boards and churches."

(c) Copyright 2000. The Christian Science Publishing Society