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Until recently, and this may be because of the Supreme Court™s mud-
dling of free exercise doctrine between 1963 and 1990 (discussed in Chap-
ters 8 and 10), government of¬cials in Canada and the United States have
been extraordinarily dif¬dent in prosecuting the crime of polygamy or
even child or spouse abuses within such communities. For example, the
Department of Justice has not pursued what would seem to be tailor-
made Mann Act violations where underage girls have been exchanged
between polygamous colonies in Utah, Arizona, and Canada.78 Nor have
they followed up on those situations involving polygamous husbands tak-
ing underage and multiple wives across state borders in order to avoid
prosecution in Utah or Arizona. Nearly 60 years ago, the U.S. Supreme
70 / GOD VS. THE GAVEL


Court held that the transport of girls and women in such circumstances
violated the Mann Act, and maintained that a free exercise “defense
claims too much. If upheld, it would place beyond the law any act done
under claim of religious sanction.”79 Yet, the succeeding Departments of
Justice have not seen ¬t to pursue such prosecutions. Even so, the federal
government has been unable to ignore the publicity surrounding such
violations. While no prosecutions appear imminent, the Department of
Health and Human Services announced in July 2004 that it was providing
grants for victim outreach programs.80 In other words, it appears that the
federal government concedes there is a problem, yet ¬nds it politically
unpalatable to prosecute, and so is throwing money at the problem. In
contrast, there have been prosecutions for Mann Act violations that did
not involve religion.81 The federal government™s weak stance on such
traf¬cking when it is done by a religious entity sends a (false) message
from the federal government that religious belief can immunize other-
wise illegal conduct. No prosecutor should choose between available
prosecutions according to the religious status of the actor.
Arizona™s governor, Janet Napolitano, skirted the issue in face-to-face
meetings with leaders of the Church of Jesus Christ of Latter-day Saints,82
who many believe have turned a blind eye themselves to the abuses of the
polygamous practices that were initiated by their founder, Joseph Smith,
in the 1830s. The persistent publicity and the growing voice of groups like
Tapestry Against Polygamy have gotten the attention of Arizona legisla-
tors, however. Twenty-seven legislators asked the Arizona attorney general
to prosecute criminal violations by polygamous communities, including
rape, incest, and bigamy.83 To respond to that kind of political pressure,
within months, a multi-use facility was established in the Arizona/Utah
enclave, which will be staffed by local and state of¬cials and will be a
place for victims to report abuse.84
In Utah, it took the revelation of child abandonment discussed in
chapter 2 for Attorney General Shurtleff even to say he would consider
taking action.85 When the of¬ce distributed a manual for polygamy™s
victims, Tapestry Against Polygamy refused to assist in the distribution
of the book, because it depicted polygamy as a “unique lifestyle,” rather
than a criminal act.86 In early September 2004, however, action was taken
through the Justice Department™s Of¬ce of Violence Against Women,
MARRIAGE / 71


which established a grant of approximately $700,000 to assist domestic
violence victims in rural and polygamous communities.87
The same phenomenon seems to be at work in British Columbia,
Canada, where authorities have left the Fundamentalist Church of
Jesus Christ of Latter-day Saints (FLDS)™s Bountiful commune to its own
devices for decades,88 though social forces seem to be moving toward
some means of redressing abuses. British Columbia of¬cials announced
an investigation into abuse, sexual exploitation, and forced marriage in
Bountiful, although, interestingly enough, the investigation will ignore
the issue of polygamy.89 The mayor near Bountiful endorsed an inves-
tigation, mentioned in chapter 2, into practices at the FLDS commune
there.90 The government™s decades of studious avoidance were brought
under a spotlight by the civil rights suit recently ¬led by former polyga-
mous wives against British Columbia government ministries for permit-
ting extreme discrimination against women and girls in the polygamous
compound in Bountiful.91 Despite persistent reports of serious abuse, the
British Columbia Civil Liberties Association has urged “the government
not to browbeat the community™s leaders on the polygamy issue,”92 as
though prosecutors should backpedal prosecutions involving extremely
serious charges, on the ground that the actors are religious.
Civil liberties groups, civil authorities, and other proponents of “reli-
gious liberty” for conduct seem to operate from the premise that a demo-
cratic society is obligated to ensure the perpetuation of religious groups.
After the Salt Lake Tribune published an editorial saying “polygamy is
inherently destructive,”93 a letter to the editor argued that laws against
polygamy in the 1800s might have obliterated the early Mormon Church,
as though public policy should be chosen to preserve religious groups.94
Government regulation is not supposed to ensure or foster the devel-
opment of certain religions; the United States has fostered a busy mar-
ketplace in religion, in part because the government has been constitu-
tionally deterred from supporting or undermining religious institutions. A
religious organization that has declining membership may not and should
not be able to demand government assistance or regulation to sustain it-
self. Andrea Moore-Emmett rightly responded to the letter, saying that
religion has proven remarkably resilient in the face of government regu-
lation regulating certain actions,95 and therefore such concerns cannot
72 / GOD VS. THE GAVEL


drive the public policy determination. Rather, the government™s obliga-
tion is to persist in choosing the public good over all other concerns.
As the issue has become a front-page story, at least one academic has de-
fended polygamy on First Amendment grounds, and his reasoning nicely
illustrates what is wrong with the current debate over marriage. Professor
Jonathan Turley in USA Today called the arguments against polygamy
by conservative groups ¬ghting gay marriage hypocritical: “Given this
history and the long religious traditions [that had recognized polygamy
at some point in history], it cannot be seriously denied that polygamy is a
legitimate religious belief . . . if we yield to our impulse and single out one
hated minority, the First Amendment becomes little more than hype and
we become little more than hypocrites.”96 That the belief is “legitimate,”
means nothing as a legal matter, because under the First Amendment,
all religious beliefs “ no matter how outlandish “ are legitimate, and the
government may not draw such a distinction between beliefs. He then
declares, “The First Amendment was designed to protect the least popu-
lar and least powerful among us.”97 This is the kind of overgeneralization
that too often substitutes for considered discussion of the First Amend-
ment in the United States, regrettably. The First Amendment was not
crafted to protect conduct that harms others, even if the actor is unpop-
ular or powerless. A small polygamous and incestuous California sect
was no doubt unpopular and politically powerless, but the cult leader
who is now accused of murdering his wives and children (some of whom
were both) was no more defensible than any other mass murderer.98 The
First Amendment is simply irrelevant to the legality of his conduct. If the
government had directed the cult to cease believing in polygamy or to
sti¬‚e its speech about it because the government found it unpalatable,
Turley™s analysis might have had some bite, but it is completely beside
the point when the issue is conduct, like polygamous marriage. Turley™s
main mistake was that he substituted the view of the religious individual
for legal reasoning, and therefore lost sight of the only relevant question:
is the conduct harmful or bene¬cial? Indeed, his focus on the religious
is so intense that he fails to take into account that bigamy and polygamy
are not just religious practices, and that even the secular bigamists may
harm society.99 He frames the question incorrectly. The legal issue is not
whether the religious viewpoint of certain believers is internally incon-
sistent, or even what any one group of believers holds true. The question
MARRIAGE / 73


for public policy is whether the practice of polygamy is consistent with
what is best for society, period. As with so many public of¬cials and rep-
resentatives, he confuses a debate over belief with the debate over public
policy. Both debates are welcome at the public round-table. Only the lat-
ter properly shapes the law. The government may not enter the former,
but it is duty-bound to address the latter.
In the last decade in the United States, there has been a growing rumble
from formerly polygamous wives, who criticize the notion that polygamy
is a victimless crime. Tapestry Against Polygamy was founded by a group of
formerly polygamous wives who decided to ¬ght polygamy. It describes
its mission as advocating “against the human right violations inherent
in polygamy and provides assistance to individuals leaving polygamous
cults.”100 Journalist Andrea Moore-Emmett has taken an in-depth look
at the problems expressed by formerly polygamous wives across a range
of polygamous religious communities, and concluded that religiously
based marriages involving one man and multiple women frequently entail
spousal and child abuse.101 Canadian Nancy Mereska formed an email
network campaign dubbed “Stop Polygamy in Canada” after learning of
the abuses that seem to be endemic in many of the known polygamous
communities.102
Former polygamous wives argue that the typical religious polygamy
community elevates certain men over all others, and that women and
children are nothing more than property to accumulate. In chapter 2,
I described polygamy™s impact on children; it has also harmed women.
When underage girls are forced into marrying much older men in these
communities, they are taken out of school, deprived of any means of future
earning or self-support, and burdened with the expectation of bearing as
many children as possible. The cost of such enormous families can prove
to be too much for any one man, leading some polygamist men to support
only their ¬rst wives, leaving all later wives (and their children) no option
but state support.103 Moreover, home schooling is favored in order to
avoid the public school system, which could lead to discovery of their
criminal acts. So mothers who have marginal educations themselves are
teaching their children. These children would appear to be destined
to be as undereducated as their mothers, despite federal legislation that
purports to leave no child behind. When government refuses to prosecute
the legal violations within these polygamous enclaves, it further isolates
74 / GOD VS. THE GAVEL


the women and leaves their children far behind the standardized goals
set by the federal legislation.104
There is some debate whether this describes the natural propensities
of polygamy, or whether only the bad polygamous actors get the attention
of the public. Some of the wives from the FLDS Bountiful commune
have defended their lifestyle, saying that they enter the marriages freely,
that the women are educated, and that there is no abuse.105 There is also
a Utah organization of polygamous women in Utah, Principle Voices of
Polygamy, which defends the practice.106
Polygamy™s defenders are not only Mormon fundamentalists. Mark
Henkel is a self-proclaimed spokesman for a Christian polygamy advocacy
group in Maine, who “cites biblical scripture and the polygamists™ lifestyle
of such Old Testament biblical ¬gures as Abraham and King David as
justi¬cation.” He asserts he does not, however, support forced marriages
and believes in the free choice of women to enter the arrangement.107
Legislators who take up the issue, though, must consider whether the
unbalanced numbers in a polygamous marriage institute an inherently
unequal situation. While there are a certain number in the United States
who argue that the above abuses are simply perversions of what can
be a productive and happy relationship, others have seen in polygamy
an internal contradiction with the rule of law and democracy. At the
very least, polygamy sends the message that only one man need satisfy
multiple women, so that the women are not equal to the man. Naomi
Schaefer Riley, who is a Fellow at the Ethics and Public Policy Center,
in Washington, D.C., believes the latter, saying that it “corrupt(s) civil
society as a whole, destroying education, individual rights and the rule
of law “ in other words the foundations of democratic governance.”108
Others, like political science professor Thomas Flanagan at the University
of Calgary, Canada, are more blunt, arguing that polygamous societies
are highly unequal and a deadly foe of constitutional government. He
offers as proof that constitutional democracies have arisen only from
monogamous societies.109
The facts of religious polygamy are the proper focus of any social and
legislative reconsideration of marriage. The victims of polygamy should
be heard, as should the continuing practitioners who would defend the
practice. The typical defense by the men is that their religion demands
it, and the government should have no power to regulate their religion.
MARRIAGE / 75


“[M]embers of the Fundamentalist Church of Jesus Christ of Latter-day
Saints . . . believe that men must have at least three wives to reach heaven™s
highest echelon.”110 One leader elaborated by pointing out that it was a
blessing for the women, because “the only way she could ever be happy
was “ that she would let her husband, a faithful man, rule over her. That
was the only way back to Heavenly Father for the woman.”111 He was not
quite as subtle when dealing with recalcitrant wives: “You can either live
here and live in hell, and then when you die have eternal happiness. Or
else, you can go out into the world and live in hell and die and even have
more eternal hell.”112
It is not as though the United States is the ¬rst culture to deal with
polygamy. Although, to be quite frank, the United States is always sorely
tempted to assume it stands alone and ahead of others on issues adressing
religious practice. Many countries in the world permit it, and it does
have some political clout. For example, in Afghanistan™s 2004 elections,
the Afghanistan Supreme Court demanded one candidate be prohibited
from the election, because he had publicly criticized polygamy.113 Even
so, its legality has not meant that it is widely followed. In East Malaysia,
for example, where the practice is legal, there were only 168 polygamous
marriages recorded between 1999 and 2003, amounting to only .6 percent
of marriages recorded.114
In other underdeveloped regions of the world where polygamy is still
widely practiced the issues are more complex. Florence Butegwa, former
regional director of Women in Law & Development in Africa (WiLDAF)
has commented on the contradicting views of polygamy in Uganda, where
women have organized “to demand the abolition of polygamy as a nec-
essary step for protecting women™s rights in marriage.” At the same time,
Muslim women, “either on their own volition or on the demands of
their Islamic leaders,” opposed the movement. “They liked polygamy,
they [didn™t] want it to go away.” Their claims “provided the government
with an escape route.”115 Similar campaigns against polygamy have been
started in other African nations, especially Nigeria, where The Cam-
paign Against Polygamy & Women Oppression In Nigeria and Africa
(CAPWONA), and the Total World Women Freedom Alliance
(TOWWFA), believe that polygamous marriages are inherently unequal
and lead to unhappiness for the women, but they also see a larger issue in-
volving the building blocks of the society.116 Given the multitude of issues
76 / GOD VS. THE GAVEL


surrounding women™s rights in Africa, including access to healthcare,
child custody issues and basic property laws, Professor Mojubaolu Olu-
funke Okome of Brooklyn College, CUNY, put it this way: “I don™t think
that many women in Nigeria think polygamy is a problem in and of
itself. . . . [it is the] the unjust treatment of a woman under the polyga-
mous system may be a problem.”117
However, without addressing polygamy, it will be virtually impossible
to address the other concerns of these women. If the family is a group
unit, how can courts decide custodial issues? If a man has more than
one wife, which wife should inherit his property when he dies without
a will? If a man can marry as many women as he wants, will there ever
be a solution to the endemic problem of AIDS in Africa? Indeed, some
believe the culture of polygamy has contributed to the spread of AIDS in
Africa.118
While United States of¬cials have been apt to turn the other way,
international treaties have labeled polygamy as an inherently unequal
relationship that violates fundamental principles of equality. For exam-
ple, following the creation of the Convention for the Elimination of All
Forms of Discrimination Against Women (CEDAW), the United Na-
tions offered the following analysis: “Polygamous marriage contravenes
a woman™s right to equality with men, and can have such serious emo-
tional and ¬nancial consequences for her and her dependents that such
marriages ought to be discouraged and prohibited.”119
All of this is proper fodder for legislative consideration, including the
experiences of those in the United States who have lived within the
institution, the views of those who have left it, and the knowledge of
the international community. And the focus needs to be on polygamy,
religious and secular, not just religious. There may be those polygamous
situations that do not entail the severe civil rights abuses apparent in
the religiously motivated polygamy that has been at the forefront of the
debate. Those individuals should be encouraged to make their case to
their legislators. But in the end, it is the obligation of the legislators to
determine what is in the best interests of all the people “ men, women,
children, and society as a whole. And the debate belongs in the legislature,
not the courts.
It is simply incoherent to argue that the First Amendment should
determine the parameters of marriage. The First Amendment is solidly
MARRIAGE / 77


available when it protects the right of anyone to believe in polygamy, and
when it protects the right of those believers to speak about the practice,
and even to urge the legislature to deregulate marriage. Consideration
of conduct and its impact is the legislature™s correct role, which permits
wide-ranging and wide-eyed factual inquiry, consultation with experts
here and abroad, and consideration of what this society wants marriage
to accomplish.
To the extent the religious polygamists insist that the Constitution man-
dates permission for their practices, they are on quicksand. The argument
has no foundation. If they are arguing instead that polygamy is a socially
bene¬cial practice that is capable of serving the public good, then they
should make the case.
Here, as elsewhere, legislators need to be reminded that they are not
in their positions of power to roll over for religious organizations that
demand rights to do whatever their beliefs dictate. It is never enough
for representatives to assert they are furthering religious liberty. They
must also always ask whether the conduct in question comports with
the public good, and that means they must examine with some care
how the conduct impacts others. The victims of polygamy need to be
taken into account in such a calculus, just as the victims of clergy abuse
and medical neglect need to be in the forefront of legislators™ minds
when they determine statutes of limitations on childhood sexual abuse
and child abuse reporting laws. The legislative mantra needs to be that
conduct always has the potential to harm, and that as legislators, they are
obligated to identify, forestall and deter harm.
4


RELIGIOUS LAND USE AND
RESIDENTIAL NEIGHBORHOODS



Religious landowners face daunting needs for buildings and property,
which means their residential neighbors are often affected by their plans.
The worship space needs to be large enough to accommodate weekly
gatherings of a signi¬cant percentage of their members and even bigger
assemblies for holidays. Thus, a small building with minimal parking
is ordinarily not adequate to the task. In the era when these buildings
were only used for worship and maybe a choir practice, despite their
size, houses of worship were attractive residential neighbors. Church
properties were like miniature parks of peaceful tranquility in residential
neighborhoods “ the grounds were pretty, the building was tasteful, and
they were excellent neighbors. Parking, traf¬c, lights, and noise were not
typical problems. That is no longer true.


78
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 79



The paradigm shift in houses of worship
There has been a paradigm shift in houses of worship in the United States.
Unfortunately for their neighbors, although favorable for the recipients of
their services, contemporary houses of worship are not the sleepy institu-
tions they once were. They are now a locus for social services, as well as a
center for worship and entertainment. The thriving religious entities have
sizeable buildings, with seating for hundreds “ maybe thousands, along
with heavy traf¬c, intense parking needs, and even bus transportation
into the neighborhood from off site. If they are starting from scratch, they
usually (though not always) search for a large parcel of land that is along
a major thoroughfare. Problems arise, though, when established houses
of worship situated in residential neighborhoods attempt to compete
with these new multipurpose churches or when large or growing congre-
gations try to wedge a new campus into a neighborhood. The established
church may seek to transform its existing grounds into parking lots as it
adds buildings and services, or a new church may enter the real estate
market and purchase ¬ve or six neighboring homes “ often without telling
the neighbors. A homeowner can go to sleep in a quiet residential enclave
and wake up next door to a proposed 150-car parking lot.1 The result of
church expansion is too often that neighborhood streets where children
once played roller hockey are now so busy that the parents are uneasy
letting the children play in the front yard. Minimal traf¬c and the atmo-
sphere it creates, after all, attract many families to their homes in the ¬rst
place.
Sometimes the size of the congregation can dwarf the surround-
ing community. In Rolling Hills Estates, California, the Rolling Hills
Covenant Church™s congregation numbers 3,700 adults and children
and seeks to build a huge church to accommodate its growing mem-
bership. The city has been concerned about the project™s scope and in-
creased traf¬c, because the congregation amounts to half of the city™s
population and has a budget that exceeds the city™s. The con¬‚ict be-
tween homeowners and such a large religious project should be apparent;
the city expects the homeowners to sue as the project goes forward and
the church to sue if the city government does not approve the pro-
posal. City Manager Doug Prichard, says, “Our goal is to ¬nd a project
80 / GOD VS. THE GAVEL


that will meet the church™s needs that will not negatively impact the
neighbors and [will] keep everybody out of court.”2 That is often a tall
order.
The size of the congregation alone does not dictate how the house of
worship will affect residential neighborhoods. There is also the question
of what services will be provided. “Church on Sunday” is no longer
the rule. The model of church use that is carved into the memories of
so many adults in the United States is gone. Houses of worship are, in
fact, multiple-use social centers. The typical congregation may use its
property for schools, weddings, receptions, social services like Alcoholics
Anonymous and soup kitchens, and weekly religious study. The worship
program may include numerous elements as well, such as a summer
religious camp; services on days other than the Sabbath; youth groups for
elementary, junior high, and high school students; and multiple choirs.
Hours of use skyrocket from less than a dozen to well over 60 in a single
week, with the use generating a traf¬c pattern more evocative of a grocery
store than a home. “When viewed from an objective land-use perspective
(considering only the level of activity, not its substance) or from a traf¬c
perspective, such a use begins to look more like a commercial facility
than like the traditional neighborhood church.”3
The more recent phenomenon of the “megachurch” in the United
States takes this trend to its logical extreme, with some campuses includ-
ing child and senior day care, recreation centers, health clubs, bowling
alleys, bookstores, coffee houses, hotels, home-repair assistance, and mo-
tion picture theaters.4 There is one religious institution in Houston, Texas,
that has a McDonald™s.5 These complexes are, in fact, self-contained com-
munities for believers to go after work and on the weekends, where social
and religious needs are satis¬ed simultaneously.
The ¬nal factor in this house-of-worship expansion is that many congre-
gations have come to think of themselves as ministers to all, not just their
own members, so there is competition among religious entities to pro-
vide panoply social services to those outside the congregation. The menu
of services also serves to entice new members. According to one expert,
“˜American churches of all kinds are trying to do everything they can to
enlarge their tent, be seen, be accessible.™”6 It is a formula that seems
to be working, because nondenominational, nontraditional churches are
the fastest growing religious groups in the United States.7
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 81


When size and intense use combine to affect those who reside nearby,
previously friendly neighbors can become hostile enemies. There are
two con¬‚icting dynamics happening at once. The religious entity is
experiencing a heady and exciting period of expansion, and may well
see earthly hurdles as contrary to its divinely inspired religious move-
ment. The neighbors are in a very different place. Typically, they have
lived in the neighborhood for a long time, or they chose the neighborhood
for its residential qualities, so the new building project is a serious threat
to their quality of life. To make matters worse for everyone concerned,
a home is often a family™s largest ¬nancial, and emotional, investment;
thus, when the character of the neighborhood and, therefore, property
values are threatened, homeowners understandably object. They really
do not care if the expansion project will result in a bakery or a temple.
“You could be a car dealership, a hospital, a university; it doesn™t matter “
especially if it is in your neighborhood.”8
Either way, they are losing what they value most in their homes. Yet,
given the demographics of religion in the United States, the two sides are
almost always religious, so any implied condescension from the leader of
the project can really hit a nerve and even a whiff of a holier-than-thou
attitude from the members can lead to a con¬‚agration of bad feelings.
Conversely, objections by the homeowners are too often translated as
somehow anti-religious.
Local government has found itself quite literally between a rock and
a hard place on these issues. These intensely used properties wedged
into residential neighborhoods are often the result of imprudent de-
cision making by city governments, which follow the tendency of all
U.S. politicians to defer to requests by religious entities without ade-
quate independent analysis. It is as if whatever the religious institution
requests is good for everyone. A recent study concluded, “It is extraor-
dinarily uncommon for congregations to be denied permission by gov-
ernment authorities to engage in the activities in which they wish to
engage.”9
It can take little for government of¬cials to be swayed to the religious
entities™ side, especially if the religious applicant pulls the discrimination
card. If there is one thing local governments do not want, it is constitu-
tional litigation in the federal courts accusing them of religious or racial
discrimination, and whenever they can avoid it, they will. If that means
82 / GOD VS. THE GAVEL


bending the land-use rules to grant a religious entity™s request, that is often
what will happen.
This is not to say that local governments always blindly rule in a re-
ligious entity™s favor. They don™t. They are quite capable of sticking to
their land-use guns, especially when the result of applying their law is
quite clear. But in this era it does not take much for the balance to tip
in favor of the religious entity. I speak from experience as one who has
been contacted by dozens, if not hundreds, of homeowners around the
United States who have had remarkably similar experiences, and one
who represents some of the cities involved in these disputes.


A home becomes a synagogue
In Los Angeles™s beautiful Hancock Park neighborhood, an Orthodox
Jewish shul, or synagogue, operated for decades out of Rabbi Chaim
Baruch Rubin™s home. The neighborhood is roughly 75 years old, and
many of the homes have a distinctive Mediterranean look.
For many years, the shul was attended by a small number of men, and
the neighbors had no reason to complain. But then the rabbi passed away
and the rabbi™s son, Rabbi Chaim Baruch Rubin, took over and had a
grander vision, which led to the current dispute. First, he expanded the
use of his father™s home from a daily prayer meeting to a synagogue with a
congregation attending weekly Sabbath services and holding bar and bat
mitzvahs. Then, when this new and intense use triggered resistance from
the neighbors, he requested a variance to construct and operate what
amounted to a full-service synagogue on another nearby property in the
neighborhood. Under existing law, there was virtually no question that this
project was inconsistent with the surrounding neighborhood. On the ¬rst
round in 1996, the city council af¬rmed the zoning board of appeals and
declared that the use would have been unprecedented in Hancock Park:

There are no other church or institutional uses on the residentially
zoned properties within the notice radius for this action, this use would
be precedent setting and compromise the 75 year maintenance and rec-
ognized quality and sought after ambience of this historical residential
neighborhood.10

The Los Angeles Superior Court wholeheartedly agreed, saying that
the synagogue “˜would be a precedent setting encroachment of an
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 83


institutional use in a single family area . . . [that could] destabilize what
has been a long standing, quality single-family residential neighborhood
that has through constant efforts maintained its stable, high quality
residential character.™”11
In response to the argument that the synagogue was convenient for its
members, and therefore should receive this unprecedented treatment,
the court held, “There are other locations within a reasonable walking
distance from the subject site which could be used as a synagogue by
right without the potential to impact and disturb the quiet enjoyment of
the existing residential community.”12 The California Court of Appeals
af¬rmed.13
In federal court, where the congregation appealed the city™s decision
on constitutional grounds, the court rejected all of their constitutional
arguments and was ready to dismiss. Yet, when the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), which granted spe-
cial privileges to religious landowners and which I will discuss in the
next section, became law, the city did an about-face on its settled and
af¬rmed land-use principles by entering into a Settlement Agreement
that “accomplished the purpose sought by the Congregation in its 1996
conditional-use permit application “ gaining of¬cial approval for property
uses then taking place in violation of the Los Angeles Municipal Code.”14
In other words, this new federal law, which carried with it the threat
of continuing federal court litigation, persuaded the City of Los Angeles
that it should abandon its land-use code and grant the religious entity
most of what it requested.
Los Angeles put a few conditions on the use. For example, it required
the synagogue to maintain the “residential character” of the neighbor-
hood. That proved futile, as neighbors watched the small house on the
new property being razed and then replaced with a building twice the
size on the same land, which looks like a synagogue and overshadows its
neighbors. It is so close to the property line that the homeowner to the
side no longer keeps her curtains facing the synagogue open.
The neighbors were outraged that their city™s settled land-use law could
be discarded so abruptly and their neighborhood taken in precisely the
opposite direction from what the law required. A signi¬cant number of
them formed the League of Residential Neighborhood Advocates and
¬led a federal lawsuit, which is a highly unusual step for a homeowner™s
organization. They are now in federal court challenging the reversal as an
84 / GOD VS. THE GAVEL


abdication of the city™ responsibility to follow its own laws, and therefore
violating due process.15 In the interest of full disclosure, I represent them.
For purposes of this book, I seek only to describe the facts.
Neighborhood disputes also have the capacity to creep beyond their
borders. The Hancock Park dispute is a classic example of the challenges
imposed when a religious use increases in intensity and scope. Unfortu-
nately, the ugliness of the dispute is typical as well. When the neighbors
objected to the opening of this new, intense use, the congregation took
offense. A press release was distributed in the neighborhood accusing
those opposed to the building project as “anti-Jewish” and “anti-Semitic.”
The congregation™s response got the attention of other Jewish leaders,
including a leading museum curator, who wrote a letter accusing the
neighborhood of “hate.” After he met with the synagogue™s neighbors, he
claimed he was not calling the neighbors anti-Semitic, only intolerant.
No homeowner walks away from such an exchange without feeling less
happy about his or her choice of neighborhood.
This case is especially ironic, because Rabbi Rubin testi¬ed before
Congress:

Congregation Etz Chaim (“Congregation” or “Etz Chaim”) is a small
group of Orthodox Jewish residents of Hancock Park who, for the last
30 years, have gathered together in one of two residences in Hancock
Park for communal prayer. Orthodox Judaism requires that worshipers
pray together, and that they walk to services on the Sabbath and on
other holy days. Thus, in order to comply with the dictates of their
faith, Orthodox Jews must have a house of worship within walking
distance of their homes. Over the years, Etz Chaim has come to serve
the needs of many elderly and disabled Hancock Park residents, who,
because of their disabilities, are physically unable to walk the mile or
more round-trip to synagogues located in the commercial zone outside
of Hancock Park. For years, these faithful congregants have attended
services at Etz Chaim using their canes and walkers.16

He then described the current use as involving “40 members (with a
high of sixty (60) members . . . [and] four bar mitzvah ceremonies,” and
claimed that “[t]he only activities which take place at the residence are
prayer services.”17 If one were inclined to read the testimony for its facts,
one would quickly see that a minyan had become a full-service syn-
agogue catering to families with children. That is a dramatic change
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 85


in use, and for it to be characterized any other way is disingenuous at
best.
Yet, the truth rarely impedes those religious interests intent on ob-
taining special bene¬ts from Congress and their willing accomplices,
the members. In spite of its incomplete character, Rabbi Rubin™s testi-
mony has been repeatedly invoked as evidence of rank discrimination
against benign neighborhood religious uses. Senators Orrin Hatch
(R, UT) and Edward Kennedy (D, MA), in their joint statement, asserted
that, “[s]ometimes, zoning board members or neighborhood residents ex-
plicitly offer race or religion as the reason to exclude a proposed church,
especially in cases of black churches and Jewish shuls and synagogues.
More often, discrimination lurks behind such vague and universally ap-
plicable reasons as traf¬c, aesthetics, or ˜not consistent with the city™s
land use plan.™”18 In other words, it was the rare instance where overt
discrimination could be indenti¬ed in the land use process, but discrim-
ination supposedly could be implied on the basis of “universally appli-
cable reasons” for land use determinations. Thus, Congress pulled the
discrimination rabbit out of the hat and transformed all homeowners into
bigots.
Despite no overt proof of discrimination, a city™s decision to follow its
settled land-use law could be twisted into a pretext for invidious discrimi-
nation, while the typical concerns of homeowners about traf¬c, aesthetics,
and maintaining the city™s land-use plan were supposedly so base that to
invoke them led to the ineluctable conclusion that discrimination must
be at play. It™s a disturbing claim for two U.S. senators to make about
millions of their constituent homeowners without concrete proof, but it
had legs, because it became the element of all of the hearings before
Congress that undergirded RLUIPA in the eyes of the courts.
Professor Douglas Laycock went even further than the senators, claim-
ing overt and not just implied religious discrimination, when he wrote
that Los Angeles™s “express reason for excluding a place of worship was
that it wanted to exclude places of worship!”19 Nothing but an overactive
imagination intent on ¬nding discrimination because it suits one™s pur-
poses can explain this characterization of Los Angeles™s decisions in the
Hancock Park case. It was the increasing intensity of use that engendered
the original denial, which was af¬rmed by the California courts, not the
religious character or identity of the gathering.
86 / GOD VS. THE GAVEL


If there is one thing that is sacrosanct in the United States, it is the
belief that one™s home is one™s castle, and therefore these disputes pit
one cherished ideal “ religious liberty “ against another “ the American
Dream of a nice home in a quiet suburb, where children can be safe. In
1974 the Supreme Court put it this way:

A quiet place where yards are wide, people few, and motorcycles re-
stricted are legitimate guidelines in a land-use project addressed to
family needs. . . . The police power is not con¬ned to elimination of
¬lth, stench, and unhealthy places. It is ample to lay out zones where
family values, youth values, and the blessings of quiet seclusion and
clean air make the area a sanctuary for people.20

Religious groups lobbying for preferential land-use rights seem to have
an odd blind spot on this core American value. They live in the culture,
and surely many live in just such a setting. Yet, they seem surprised “
or bemused “ when their preferential statutes render neighborhoods war
zones, although they will admit it is problematic in certain states where
there is a “greater emphasis on land.”21 Anthony Picarello of the Becket
Fund, which supports such legislation and provides free legal assistance to
churches in these types of suits, said it like this: “RLUIPA does not create
˜two classes of citizens™ across religious lines. Instead, it creates two classes
of activities “ land use that involves religious exercise, and land use that
does not “ and then reinforces the constitutional protection for all citizens
who choose to use their land for religious exercise.”22 The problem is that
the word “reinforces” in fact means “adds to,” and therefore religious
entities have been granted extra-constitutional rights that make religious
landowners ¬rst-class citizens to their lesser residential neighbors.
Keep in mind, however, that these lobbying groups on behalf of re-
ligious institutions have never legislated special privileges for religious
landowners; that was done by legislators. And these legislators are the
ones who need to be brought to account on these issues. It is one thing
for an interest group to fail to see the other side of an issue, but it is a se-
vere failure of responsibility for Congress to miss the other side altogether.
Moreover, in the land-use arena, virtually every one of them has owned
or owns a home, so it is not as though they needed special expertise to be
able to foretell how private homeowners would feel when their religious
neighbors could destroy the residential quality of their neighborhoods.
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 87


The failure of Congress to investigate these issues is shameful. When
the Religious Liberty Protection Act (RLPA) was under consideration in
Congress in 1999 (and those hearings were then said to support RLUIPA),
only religious entities with vested interests were permitted to testify. I
testi¬ed, but solely on constitutional issues (to get on the record that
Congress had considered constitutionality in light of the Court™s recent
rebukes of Congress™s cavalier enactment of laws for which they may
or may not have had the power). Groups like the National League of
Cities and the International Municipal League of Cities asked to testify,
but they were never invited. Mayor Rudolph Giuliani asked to testify
regarding New York City™s concerns with the bill, but he was not invited.
Sen. Patrick Moynihan (D.-N.Y.), other land-use of¬cials, and zoning
authorities who might have been able to give Congress the bene¬t of
another side of the issue were not invited either. Certainly no homeowner
or homeowners™ association that had tangled with an ambitious religious
building project was permitted to get on the record, but that is probably
because Congress simply did not bother to ask whether relieving religious
entities of land-use laws might well affect one™s neighbors. It™s an obvious
question, but was never posed throughout the hearings for RLPA.
The record contains many religious entities complaining about garden-
variety land-use laws along with anecdotes of discriminatory treatment.
The problem with the discrimination claims was that there are virtually no
cases to support their argument that Congress needed to intervene to help
these landowners. In fact, the only secular “ as in unbiased “ study done to
date supports the view that the claims to discrimination before Congress
do not hold water, because discrimination simply is not a typical feature
in the land-use process when religious entities are involved.23 In the face
of religious representatives from the Mormon Church, the Presbyterian
Church, and the Roman Catholic Church, the congressional members
basically accepted what was being alleged, as though it were gospel truth,
and once the testimony was recorded in the Congressional Record, courts
deferred to the claims as well, because Congress had accepted them.24
The ¬rst court to uphold RLUIPA™s constitutionality simply quoted the
conference report delivered by Senator Hatch (who has yet to see a pro-
religious bill he will not support), as though independent, disinterested
review of the record to ensure constitutional requirements were followed
was not the court™s business (even though it is). It engaged in the following
88 / GOD VS. THE GAVEL


“analysis,” which merely parrots Senators Hatch and Kennedy™s joint
statement: “The hearing record compiled massive evidence that this right
is frequently violated.”25
Thus, interest group politics builds on gossamer threads, and voila,
religious landowners have the ability to get around the land-use laws that
make neighbors good neighbors. As I said previously, the de¬ciency in
the political process here is not with the interest group™s distorted or self-
interested perspective. That is to be expected. But there is every reason to
criticize elected representatives who kowtow to religious interests, and,
as a result, fail to ask the simplest questions: for example, how does your
land use proposal affect others, like your neighbors? Had the question
been posed, it might have occurred to a member to ask others besides the
religious groups (and a handful of scholars) to testify. Then there might
have been some fact ¬nding, as opposed to opinion expressing.
When any landowner “ religious or secular “ receives or seemingly re-
ceives preferential treatment, there are bad feelings in the United States.
Because city governments are supposed to ensure that residential neigh-
borhoods remain peaceful and attractive to families, when they abandon
their principles for religious entities, homeowners feel betrayed.26 The
impact of these large operations on property values and residential char-
acter turn homeowners against religious entities all too often.27 In the
words of one reporter, although RLUIPA was only “intended to ease city
zoning restrictions for religious institutions, the civil rights law has pitted
neighbor versus neighbor and church versus state in areas nationwide.”28
Religious entities often view their property as serving a higher pur-
pose, which can translate into insensitivity to the “earthly” values of their
neighbors. The message is sent loud and clear that increased traf¬c is
a negligible burden on the neighborhood when compared to their reli-
giously motivated plans. When homeowners object to bringing homeless
into the neighborhood for social services, because they fear for the safety
of their children and the impact on property values, they are told that their
values are misplaced. From the religious perspective, the religious mis-
sion transcends these mortal concerns. Sometimes a pastor will spearhead
an ambitious building project, on the basis of a vision for the future, not
current numbers. For example, in Greensboro, North Carolina, Senior
Pastor Jerry Shetler of the First Presbyterian Church said in 1995 that his
plan to raze historic homes set on tree-lined streets for a parking lot and
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 89


a hall large enough to accommodate basketball as well as banquets was
not “necessitated by the congregation™s growth in numbers, [but rather]
the growth of the congregation in terms of its understanding of what it
ought to be.”29
At one conference I attended, a representative for a religious organi-
zation declared that he simply could not comprehend residential home-
owners™ objections to cars parked on the street on a regular basis. At the
same time, a scholar declared that concerns about traf¬c and parking are
simply pretexts for discrimination against religion, as though it is incon-
ceivable that homeowners would take those issues seriously.30
The ingrained American prejudice in favor of the religious projects
was evident at a 1999 conference at the University of California, Davis
School of Law, where Professor Douglas Laycock asserted the following
as a fact: some neighbors to a new church “are hostile to religion and to
churches, either in general or in certain manifestations. Some Americans
are hostile to all religion. They believe it is irrational, superstitious, and
harmful.” He immediately quali¬ed the statement, though, because it
could not stand on its own: “This is the view of a small minority.”31
Religious hostility, however, does not, in fact, describe the attitudes of
the vast majority of residential neighbors. For Laycock, the homeowners
objecting to a law that would let churches off the hook for land-use
laws “brought a remarkable intensity and sense of entitlement to their
desire to prevent the construction of churches.”32 The intensity is not
remarkable at all. Had he attended just about any public hearing involving
a building project affecting private homes, he would have witnessed the
same passion, which is motivated by these homeowners™ love of their
neighborhood and families, not any hatred for any or all religions.
What is remarkable in the religious-building debate is that those on
the side of the religious entities have been so far removed from the emo-
tional, economic, and even spiritual value that American families invest
in their homes. It is neither a de minimis nor a throwaway value. This
is where the family meets, where children live, and where personal tra-
ditions are built.33 If the family is the fundamental building block in
American society “ as so many are claiming in the same-sex marriage
debate “ the home is simply an extension of those values. Yet, page after
page of congressional testimony in support of federal religious liberty leg-
islation can criticize how religious landowners are treated in the United
90 / GOD VS. THE GAVEL


States, without a single witness called to ask about the impact these re-
ligious building projects have on private homeowners. That is a severe
failure of representation.
Part one includes many arenas wherein religious entities act as though
the public interest pales in comparison to their agendas. In many cir-
cumstances, though, the average American has little idea how religious
entities are harming others. Here, the disputes are literally in Americans™
own backyards.
Given their worldview, there is a tendency for religious landowners to
characterize run-of-the-mill zoning regulations and the costs of securing
property and building as an unacceptable burden on their free exercise
of religion. Until recently, their land use was treated according to its
impact, not the identity of the owner. For example, in Miami Beach,
Florida, Naftali and Sarah Grosz lived in their home on property zoned
for single-family residential use for a number of years. They bought the
property with a deed restriction that explicitly limited their use to res-
idential purposes and did not request rezoning. But they did have an
“accessory structure” for which they asked and received permission to re-
model for what they called “playroom use.” As part of its approval, among
other particulars, the city told them that the structure could not be used
as a “religious institution.” While the external features of the structure
were not changed, the couple installed “benches to seat over 30 persons,
Torahs, Arks, a Menorah, skull caps, an eternal light, numerous books,
shawls, and other items of religious signi¬cance,” all of which violated
the city™s ordinance against religious institutions in residential neighbor-
hoods without permission.34 The Grosz™s sued the city in federal court,
claiming the ordinance was an unconstitutional burden on their free-
exercise rights.35 The U.S. Court of Appeals for the 11th Circuit rightly
rejected their claims in 1983, because there is no justi¬cation in a resi-
dential neighborhood to treat the impact of a religious use as though it is
any different from the impact of a nonreligious use. Here, a “playroom”
would have had extremely light use, while the shul was in constant use.
The court quite rightly found there was no substantial burden on their
free exercise of religion, saying:

[W]e note that Miami Beach does not prohibit religious conduct per
se. Rather, the City prohibits acts in furtherance of this conduct in
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 91


certain geographical areas. . . . Appellees™ home lies within four blocks
of such a district. Appellees do not confront the limited choice of ceasing
their conduct or incurring criminal liability. Alternatively, they may
conduct the required services in suitably zoned areas, either by securing
another site away from their current house or by making their home
elsewhere in the city. We cannot know the exact impact upon Appellees,
in terms of convenience, dollars or aesthetics, that a location change
would entail. The burden imposed, though, plainly does not rise to
the level of criminal liability, loss of livelihood, or denial of a basic
income sustaining public welfare bene¬t. In comparison to the religious
infringements analyzed in previous free exercise cases the burden here
stands towards the lower end of the spectrum.36

This is the sort of common sense reasoning that permeated the cases be-
fore the Religious Freedom Restoration Act (RFRA) and RLUIPA entered
the picture.
Religious landowners are unique, because they are often persuaded
that their building mission is transcendent, and therefore, in the order
of things, they should take precedence over competing earthly demands.
Developers frequently have a “vision” for a project, but when religion
enters the picture, that vision can become freighted with a sense of en-
titlement. For example, in the Rolling Hills Estates dispute described
above, the church has sought permission to build an enormous worship
center. Pastor Virgil Best couched the project in terms of religious mis-
sion, saying that it was their “mission that our congregation should be
able to worship together.” 37 The lawyer for the Grace United Methodist
Church in Cheyenne, Wyoming, that sought to add a 100-child day-care
center to its building in a residential neighborhood pointed to testimony
from a church leader that “God called the group to build the day-care
center.”38 Broward County™s Primera Iglesia Bautista Hispana believed
that its building plans were a “Godly mission” that was stymied by the
county™s zoning and land-use restrictions, which they blamed for under-
mining the growth they sought.39
As a constitutional matter, generally applicable, neutral zoning laws
are just as much the religious landowner™s responsibility as any other
landowner™s, and this is as it should be, because land use inescapably
affects neighbors, the community, and the state. Zoning and land-use
laws exist to minimize the negative effects of any landowner™s use of their
92 / GOD VS. THE GAVEL


property. “One of the general purposes of zoning is to ameliorate the
impact of development on neighboring land and on the community as a
whole.” 40 Zoning law, which is a 20th-century phenomenon, was made
necessary to mediate disputes from increasingly concentrated popula-
tions, as the Supreme Court explained in 1926:

Until recent years, urban life was comparatively simple; but with the
great increase and concentration of population, problems are devel-
oped, and constantly are developing, which require, and will continue
to require, additional restrictions in respect of the use and occupation of
private lands in urban communities. . . . Such regulations are sustained,
under the complex conditions of our day, for reasons analogous to those
which justify traf¬c regulations, which, before the advent of automo-
biles and rapid transit street railways, would have been condemned as
fatally arbitrary and unreasonable.41

In contrast to the application of everyday land-use laws to religious or-
ganizations, discrimination against a religious landowner is a free-exercise
violation. For example, if a zoning board or city intended to rid the com-
munity of a religious group, and therefore denied an otherwise appro-
priate variance simply because they disliked the landowner™s beliefs, the
purpose would violate the Establishment Cause, which prohibits laws
that do not “have a secular legislative purpose.”42 It would also violate
the Free Exercise Clause, which the Supreme Court has employed to
invalidate laws governing a religious entity based on animus or hostility.43
As I will discuss in more detail below, religious lobbyists continually ar-
gue that they are often subjected to discriminatory land-use decisions,
but “[t]he nearly universal experience of American congregations seek-
ing government authorization to do something they want to do is one of
facilitation rather than roadblock.” 44
For those familiar with the typical relationship between religious en-
tities and the government in the United States, this should come as no
surprise. In my experience at least, it is the rare city, town, or municipality
that will not go out of its way to help a religious project go forward. The
government will not turn its back on the community™s master plan, ordi-
narily, but religious landowners seem to do signi¬cantly better than sec-
ular developers with similarly burdensome projects. As the Employment
Division v. Smith Court said:
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 93


Values that are protected against government interference through en-
shrinement in the Bill of Rights are not thereby banished from the
political process. Just as a society that believes in the negative protec-
tion accorded to the press by the First Amendment is likely to enact laws
that af¬rmatively foster the dissemination of the printed word, so also
a society that believes in the negative protection accorded to religious
belief can be expected to be solicitous of that value in its legislation as
well.45

There is a strong hint of entitlement in the religious landowners™ drive to
avoid the typical expenses and hurdles faced by any ambitious building
project, especially if that project seeks to insert itself into a residential
neighborhood. The United States has fed into such a view by giving reli-
gious landowners property tax exemptions, which despite the enormous
¬nancial bene¬t, were upheld against Establishment Clause attack in
1970, because the practice had been in place since the beginning of the
country.46
Historical preservation has been treated as a bur in religious entities™
saddles, because they often own older buildings that are eligible for his-
torical designation. In New York City in 1986, St. Bartholomew™s Church
challenged the city™s historical preservation laws, but the court found
that there was no free-exercise defense.47 That decision spurred religious
entities to lobby for exemptions from historical preservation and land-
use regulations, which they argue never serve a compelling interest.48
Religious landowners also have been assisted by exemptions from histor-
ical preservation laws in California,49 Pittsburgh,50 and Rockwall, Texas,
which revised its historic district boundaries to speci¬cally exclude four
churches so that they would not be burdened by the designation.51 In 1992,
the Washington Supreme Court, applying state constitutional law, deter-
mined that Seattle could not impose landmark designation on a church,
where it would have to seek approval for alterations, and the ordinance
granted the city the right to determine which changes were religious in
nature. Because the law was not neutral on its face, strict scrutiny ap-
plied, and the government failed to prove that historical preservation is a
compelling interest.52
This is one of the more curious features of American society, actually.
No one in Europe would dream of asserting that history is a second-class
interest. There is history on every corner, oftentimes in the form of a
94 / GOD VS. THE GAVEL


cathedral, but in this relatively new country, there is little respect for his-
tory, and even less for preserving historical buildings. Thus, courts tend to
have little dif¬culty declaring that historical preservation is comparable
to aesthetic preference, and that beauty is a second-order value as well.
For example, one Oregon court ¬‚atly stated that “zoning for aesthetic
purposes alone is not a valid exercise of police power, as land use re-
strictions designed solely for improvement of appearance of community
do not tend to promote public health, safety, morals or general welfare
of community.”53 A Washington state court also set the value of historic
preservation and aesthetics well below the religious landowner™s interests:
“The City™s interest in preservation of aesthetic and historic structures is
not compelling and it does not justify the infringement of First Covenant™s
right to freely exercise religion. The possible loss of signi¬cant architec-
tural elements is a price we must accept to guarantee the paramount right
of religious freedom.”54
In this environment, churches presume that historical preservation is
not their responsibility. When the Trinity United Methodist Church in
Opelika-Auburn, Alabama, was given the century-old Frederick-Whatley-
Chapman house, it saw “it as a white elephant,” which it hoped to sell
to someone to move it from the lot.55 If no one was willing to pay for
the move, they planned to demolish it, even though the house has been
described as one of the city™s “most majestic and historic homes.”56 This
is a story repeated frequently “ the religious institution sees no moral
or social problem with treating historical properties as throwaways and
treats those who do place value in historical preservation as enemies of
the good. Good government would inject the idea of the public good
into this competition of interests and ¬nd means of serving everyone™s
interest. The best result in every land use dispute is the win-win result.


From RFRA to RLUIPA: religious landowners obtain preferential
treatment under the land-use laws
The political clout of organized religions in 20th-century America per-
mitted them to obtain even more preferential treatment in the land-use
process. Congress passed the Religious Freedom Restoration Act in 1993,
which treated every law in the country, including land-use laws, as pre-
sumptively unconstitutional, which means no governing authority could
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 95


impose land-use laws under RFRA unless it could prove the law was passed
for a compelling interest and was tailored as narrowly as possible.57
I will discuss RFRA in some detail in Part Two, but suf¬ce it to say for
now that RFRA was an enormous boon for religious entities intent on
avoiding the law. In an interesting turn of events, it was a land-use, his-
toric preservation case that razed RFRA. The archbishop of San Antonio,
Texas, sought to demolish the St. Peter Catholic Church in Boerne,
Texas, and to replace it with a box-like structure. The Boerne City Coun-
cil responded by refusing to permit complete demolition, because the
mission-style church, built in 1923, was located in a historic preservation
district, and in fact was a focal point of the district. The two parties began
to negotiate over what percentage of the front of the church would be
preserved when RFRA became law in November 1993. The archbishop
¬led a federal lawsuit claiming that RFRA permitted the church to avoid
the city™s historic preservation laws. In 1997, the Supreme Court held that
Congress could not usurp state and local authority by this law with its
breathtaking scope, and invalidated RFRA.58 What was the result? The
parties resumed negotiating and 80 percent of the church was retained,
with the facade facing the historical district preserved and a beautiful
addition on the back, beyond the sightlines from the historical district.59
All of which is to point out that land-use law is usually a matter of negoti-
ating, and that reasonable parties typically sit on either side of the table.
The federal law tipped the power balance in favor of the religious entity,
and its invalidation righted the balance.
Religious entities, however, were not to be impeded by the Supreme
Court™s rejection of RFRA. They soldiered on to introduce the Religious
Liberty Protection Act, which would have had nearly the same scope,
but which did not make it to the ¬‚oor of the Senate, because of growing
concerns about its real-world impact, especially on children. When the
vast scope of RFRA and RLPA proved unconstitutional and then unpalat-
able to Congress, religious groups stripped the RLPA bill down to two
categories: land use and prisons. The resulting statute was the Religious
Land Use and Institutionalized Persons Act.60 The acronym, RLUIPA,
rhymes with chalupa.
Before RLUIPA, religious landowners in virtually every jurisdiction
were just landowners, required to abide by zoning and land-use restric-
tions, with the concomitant market price for property and for obtaining
96 / GOD VS. THE GAVEL


zoning alterations. If their project was incompatible with the district, they
would have to apply for a special-use permit or a variance, just like any
other landowner. When they sought to institute a building project in a
residential neighborhood, they had to weigh the cost of the land and
construction, the likelihood the use would be limited because it was in a
residential area, and the costs of obtaining a permit. They also had to take
into account the views of the homeowners regarding the impact of their
proposal. In other words, they were property owners with equal rights
under the land use law with all other property owners, and they had to
be a good neighbor.
RFRA and then RLUIPA changed all that. In 2000, President Bill
Clinton (who never met a religious cause he would not support as
president),61 signed RLUIPA, saying: “Today I am pleased to sign into
law S. 2869, the ˜Religious Land Use and Institutionalized Persons Act of
2000,™ which will provide important protections for religious exercise in
America.” Then he praised the usual suspects behind such legislation,
Senators Hatch and Kennedy. (It has not been done yet, but one could
write a book about their partnership bene¬ting religious entities). Not
skipping a beat, he then thanked the religious groups, a group of which
called themselves the Coalition for the Free Exercise of Religion, and
the civil rights communities for “crafting this legislation.”
President Clinton went on to say: “Their work in passing this legislation
once again demonstrates that people of all political bents and faiths can
work together for a common purpose that bene¬ts all Americans.”62 To
state his point a little more clearly, this was special interest legislation,
drafted outside Congress and then passed because the members and the
president believed the right people were behind it, not because they had
determined independently that it was a good law for the people.
RLUIPA requires equal and fair treatment for religious landowners,
which is not particularly remarkable, aside from the fact one can fairly
question why Congress would spend its time on provisions that obviously
mimic the Constitution.63 But it also directs courts to treat land-use laws
as applied to religious entities as though they were presumptively uncon-
stitutional. Those provisions mandate the following: Where the land-use
law imposes a substantial burden on a religious landowner™s religious
conduct, and the law is applied through an “individualized assessment,”
the government may not enforce its law unless it can prove the law was
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 97


necessary and narrowly tailored.64 In other words, Congress created a new
“civil right” and a new forum “ the federal courts “ for churches burdened
by land-use laws. This new regime has introduced the following scenario:
A religious landowner who might not have attempted to impose an am-
bitious building project on a residential neighborhood, or who would
not have purchased a piece of property because it needed zoning that
would be dif¬cult to obtain, will change course 180 degrees. Local zon-
ing and planning authorities were displaced by Congress, and the federal
judiciary, who have never heard land-use cases unless there was a consti-
tutional violation charged, became zoning board review courts. This is
not a good scenario for homeowners or local governments. The balance
of power in residential neighborhoods shifts to the religious landowners at
the expense of the residential quality of the neighborhood. The untoward
result is that homeowners become second-class citizens to their religious
neighbors, and federal courts meddle with constitutional land use law.
The reader may be thinking that churches might not take advantage
of their superior status very often, because they are institutions of in-
tegrity or because the cost of federal litigation would lead them to bring
RLUIPA claims only when the cost of the litigation could be justi¬ed.
Unfortunately, they do.
The ¬rst reason “ integrity “ unfortunately does not wash, because the
religious entities usually view their project as so superior to the needs of
the neighbors that they feel justi¬ed in their elevated status. The statute
sets up a terrible dynamic where religious landowners defend their special
treatment on the ground that their goals are religious, as though the neigh-
bors are all atheists (the likelihood of which, in this society, is low “ only
about 14 percent claim to be atheists or agnostics).65 When the neighbors
balk at the projected plans on neutral grounds, such as increased traf¬c,
noise, and light, they are accused of being anti-xxx (the reader should
¬ll in the blank of the religious af¬liation of the landowner), invoking
RLUIPA. RLUIPA has turned neighbor against neighbor and is one of
the most religiously divisive laws ever enacted in the United States.
Nor does the cost of RLUIPA litigation typically deter religious
landowners. The drafters of RLUIPA (the American Civil Liberties
Union, the Department of Justice, and others) did not stop at providing
“a legal weapon” no secular landowner could wield.66 RLUIPA contains
what is called an “attorneys™ fees” provision, which forces the government
98 / GOD VS. THE GAVEL


to pay the attorneys™ fees for both sides if the government loses.67 The
attorneys™ fees provision has magni¬ed the special quality of RLUIPA for
religious landowners, literally enticing them to ¬le federal lawsuits they
would not have dreamed of ¬ling in the past. In these times of tight bud-
gets for cities and states, the prospect of having to pay for federal litigation,
which is always expensive, is daunting enough. But the specter of having
to pay both sides™ fees could break the community bank, especially where
the locality™s insurance carrier balks at covering the cost of the litigation.
Local authorities fold like a house of cards, regardless of the merits of
either side™s position.
The prospect of attorneys™ fees also has encouraged religious interest
groups like the Becket Fund (one of RFRA™s and RLUIPA™s most enthu-
siastic supporters) and the Paci¬c Justice Institute to bankroll land-use
litigation, making the litigation free for the religious entity. No longer is
cost a factor in deciding whether to go to federal court, and claims that
religious landowners would never have pursued in the past suddenly be-
come attractive. Coincidentally, RLUIPA™s potential to elevate religious
landowners above all similarly situated landowners becomes a reality.
The religious landowners also have a strategic advantage in the federal
courts, because, as the usual claims of discrimination waft through the
lawsuit, the federal court usually knows very little about typical zoning
practices and rules “ this has been an arena that has belonged to local and
state governments in almost all circumstances until now. The churches
have an uncanny ability to make standard, fair practices sound inher-
ently prejudiced. In that poisoned atmosphere, cities then must argue
that their laws were passed for a “compelling interest” by the “least re-
strictive means.” It™s a miracle if every church does not obtain whatever
it seeks through RLUIPA, because the atmospherics and the church™s
arguments typically amount to a claim that they have a right to complete
exemption from the law. RLUIPA, thus, is a win-win-win situation for
religious landowners. They obtain new power against neutral, generally
applicable land-use law, they have the prospect of having their attorney™s
fees paid by the city, and the cost is ameliorated by religious interest
groups.
Remarkable religious land-use proposals have been asserted under the
RLUIPA umbrella. A good number have not been winners for the re-
ligious landowners, but RLUIPA still has generated serious costs for
the neighbors and the cities. Residential neighbors have had to ¬ght
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 99


incompatible land uses to keep their neighborhoods residential, and local
governments have been saddled with the cost of such litigation even when
the claim was not meritorious. It takes money to defend oneself in federal
court, and RLUIPA does not have a corresponding attorneys™ fee provi-
sion that would require the religious plaintiff to pay the city™s fees in the
event the plaintiff loses.


Religious day-care centers in residential neighborhoods
Before RFRA or RLUIPA became law, it was generally held that reli-
gious day-care centers in residential neighborhoods could be regulated
as a distinct category from churches and nursery schools in churches.68
They had to abide by density, signage, and other typical requirements
for obtaining a special-use permit. For example, in Evanston, Illinois, in
1987, Love Church and its pastor, Marzell Gill, alleged that requiring
them to ¬le a detailed plan and an application fee for a special-use per-
mit violated their free-exercise rights. The court rejected their argument,
because the express purpose of these requirements was plainly secular:
to protect health, safety, morals, and welfare. The court explained:

The burden this ordinance places on Love Church is merely ¬nancial.
If the price is right, landlords can be found who will be willing to agree
to a contingency clause. If all else failed, plaintiffs could rent without a
contingency clause. Economic burdens do not rise to a constitutionally
impermissible infringement of freedom to worship.69

This was standard reasoning until 1993, when RFRA was passed. Then
there was a return to sanity from 1997 to 2000, after RFRA was held
unconstitutional. In 2000, this reasoning took another hit when RLUIPA
was enacted.
Since RLUIPA was enacted, cases have turned 180 degrees. Before, a
zoning decision could be made according to the intensity of the use, so
churches were required to be treated like all other landowners. It worked
both ways for them. In California, for example, churches had no special
privilege to be in any particular zoned district. Therefore, cities could
zone churches to zones other than residential zones, in part because their
intense use was incompatible with residential neighborhoods.70 In other
circumstances, it meant that a zoning authority could not treat a church
any less well than other landowners in the same district, e.g., by adding
100 / GOD VS. THE GAVEL


a day-care facility. “Churches or religious associations are recognized
and treated . . . as bodies entitled under any form of government, to enjoy
the bene¬ts of property, which property, like that of all other citizens,
whether individuals, associations of individuals, or corporations, should
be protected and secured to them by law.”71
In Cheyenne, Wyoming, the Grace United Methodist church pro-
posed in 2001 to build a nonreligious 100-child day-care center in the
heart of a settled residential neighborhood.72 When the local authorities
denied permission, the church appealed but the Board of Adjustment
still rejected its claims, because it was not a use permitted in a resi-
dential district and it was “incompatible with community goals and the
neighborhood.”73 A federal lawsuit soon followed, invoking RLUIPA. The
federal trial court held that the church had failed to prove the zoning law
placed a substantial burden on its religious conduct, and therefore could
not rely on RLUIPA. The church has appealed to the Tenth Circuit,
where the case is pending.


Bringing the homeless into a residential neighborhood
In the Pico-Union area of East Los Angeles, the Catholic Brothers of
the Missionaries of Charity, which was founded by Mother Teresa, have
sought to bring a homeless shelter “ operating three days a week during
the day and serving approximately 40 adults “ into the settled residen-
tial, historic neighborhood of Alvarado Terrace. In May 2001, neighbors
started to notice beer cans on the ground and loitering by those coming
to the shelter. The city did nothing on its own about the fact a homeless
shelter was operating in a residential neighborhood without the neces-
sary permits, which is typical. Cities generally do not extend themselves to
¬nd religious entities in violation of zoning laws. But when the neighbors
complained, the city issued citations for zoning violations and asked the
use as a homeless shelter be moved to another, more compatible area. As
often happens in these cases, the city scouted out more suitable sites for
the religious organization, which is not necessary, but certainly shows the
city™s good faith. The Brothers insisted their younger homeless needed
the “safe haven” of a “residential environment.” The group™s leader,
Brother James Walker, said, “This is how we worship . . . by helping the
poorest of the poor.”74 The neighbors observed the residential quality
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 101


of their neighborhood crumbling, as some witnessed drug deals near
the shelter and endured the homeless knocking on their doors at night,
looking for the shelter.
Instead of ¬nding a middle ground, the Brothers ¬led an RLUIPA law-
suit in federal court, arguing that the city™s order to move would be unduly
burdensome on the homeless who came to the shelter and that such a
move would be costly for them. At the trial-court level, the judge issued
a tentative order ¬nding that the city did not infringe on the Brothers™
free-exercise rights, but that it created a substantial burden on the Broth-
ers™ under RLUIPA.75 The judge set a date to hear the parties on the
constitutionality of RLUIPA in the late summer of 2003, but the hearing
and ruling have yet to take place.76


The attempt to transform light religious use into congregational use
In Abington, Pennsylvania, a thriving Reform Jewish congregation pro-
jected to encompass approximately 450 families, purchased a 10-acre par-
cel in 1999 for worship services, Hebrew classes, religious classes, the High
Holy Days, religious meetings, bar and bat mitzvah services, wedding
ceremonies, and other celebrations. The parking lot was to be expanded
from 20 to a minimum of 137 spots.77 The property was in a residential
neighborhood, but the congregation argued it had a right to establish a
synagogue at the site, because it had been previously dedicated to reli-
gious purposes. The zoning board rejected the claim, though, because
the prior use was dramatically different than the proposed use: it had
been a nunnery and then a monastery, and traf¬c was nearly nonexistent
in the quiet cul-de-sac. Indeed, the monastery was so quiet some of the
neighbors thought the monks had all died. Traf¬c studies indicated that
the synagogue™s proposed use would increase the number of cars daily
from fewer than 10 to over 100,78 which meant homeowner neighbors,
who bought their homes thinking they would remain on a quiet cul-de-
sac, faced the necessity of having to tell their children to stop playing
street hockey and to watch for cars and strangers. The character of the
neighborhood was about to undergo a seismic change that would affect
basic aspects of the homeowners™ lifestyles.
Replacing the formerly light uses with a busy congregation would
have undermined the residential character of the street. Judge Clarence
102 / GOD VS. THE GAVEL


Newcomer, of the district court, however, ruled initially that the congrega-
tion™s constitutional rights were infringed on equal protection grounds.”79
The U.S. Court of Appeals reversed the trial court™s equal protection rea-
soning, ¬nding that standard land use principles had been applied. On
remand in the trial court, the congregation won again, but this time un-
der RLUIPA. That decision is now before the Third Circuit, though the
Congregation reportedly has found other more suitable property.
In order for an RLUIPA claim to go forward, the religious entity bears
the burden of showing that the land-use law imposes a “substantial bur-
den” on religious conduct. “Substantial burden” is a term of art, which
has been employed in free-exercise cases for decades. It means that if a law
places a de minimis burden on religious conduct, there is no issue about
religious liberty. Rather, the burden must “effect ”grave interference with
important religious tenets or . . . af¬rmatively compel congregants to per-
form acts undeniably at odds with fundamental tenets of their religious
beliefs.™”80 Expense and inconvenience are not substantial burdens.81
The congregation argued “that preventing a church from developing a
particular property is in fact a substantial burden on free exercise.”82 In
effect, the Abington congregation was arguing that it had a right to choose
its location, which is to say that zoning was simply inapplicable to them
under RLUIPA. Amazingly, Judge Newcomer agreed: “Evaluating the in-
stant case with the understanding that the RLUIPA changed the standard
for the type of burdens on free exercise that are actionable, and under
the case law applying this de¬nition, it is clear that the Ordinance and
the denial of a variance to the Plaintiffs are substantial burdens on their
free exercise rights.”83
The congregation had available to it other alternative locations within
the same jurisdiction, but it succeeded in proving that its religious beliefs
were somehow burdened, as if it were being forced to change, because
that particular property was being made unavailable. In effect, the court
ruled that inconvenience was suf¬cient to prove there was a substantial
burden on religious conduct. The court is wrong on the interpretation
of “substantial burden,” but this case illustrates how religious liberty dis-
course can get so off track in the United States, especially when RLUIPA
enters the picture.
The means by which religious land-use advocates have orchestrated
the public record is quite evident in the Abington case. The neighbors
objected to the changing quality of their neighborhood, but, from the
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 103


beginning, the congregation™s strategy was to insinuate that the denial
was based on religious discrimination. The Wall Street Journal gave the
Becket Fund space for an editorial addressing the issue in general, which
also addressed the Abington case in particular: “The Philadelphia suburb
of Abington Township refused to allow a Jewish congregation to move
into a former Catholic convent, ruling that substituting Jewish worship
for Catholic worship was not a ˜continuing use™ of the land.”84 Yet, the use
was not continuous, because the use was dramatically different regardless
of religious identity. The congregation was asking to transform a prop-
erty so quiet that neighbors did not know monks still resided there into a
full-service, large-scale religious complex that would multiply traf¬c by
a factor of 15. What you have here is a religious advocate injecting inter-
denominational hatred into a context where it otherwise did not exist. If
these are the tactics of those assisting religious landowners, presumably
with their clients™ consent, it is no wonder that divisive religious discord
is being sown in residential neighborhoods in the wake of RLUIPA.
In the same op-ed, a pending case at the time was given the following
description:
Across the country, laws inhospitable to religious organizations . . . have
become quite typical. Consider: In Castle Hills, Texas, the city, in a
recent court ¬ling, referred to a Baptist church as a “cancer.” Several
years ago the city ran another house of worship out of town, ultimately
moving into the space, taking down the cross and transforming the
building into city hall.
Sounds like a pretty awful city, doesn™t it? It certainly rings of discrim-
ination against religion. When federal judge Royal Furgeson decided
the case, though, he found a very different picture. First, the city had
“granted multiple special use permits to the [mentioned Baptist] Church
in order to accomplish its goals for expansion.” The city was not opposed
to religious use at all, but rather was consistently concerned about the
impact of intense uses on residential neighborhoods. In an insightful and
well-written opinion, he stated that
this City struggles against size, not religious practice. Here, the undis-
puted facts reveal a long-lasting antagonism between Church and City
that is rooted in a struggle over size of the Church and size and char-
acter of the surrounding neighborhood. There is no evidence here that
the City harbors ill-will nor that the City means by its aggressive zon-
ing decisions to alter or impede the religion in any way. Rather, the
104 / GOD VS. THE GAVEL


City means to halt this Church™s growth, not spiritually, but geographi-
cally . . . [even though the] City refers to the Church as a cancer feeding
upon healthy surrounding cells, [t]he Court™s review of the evidence
submitted by both parties. . . . [shows that none of the City™s conduct]
rises to the level of religious discrimination or exclusion.85
The Castle Hills Baptist Church v. City of Castle Hills case illustrates
how charges of discrimination can mask actual disputes over land use,
and how RLUIPA fails to solve that very real, local problem. In the case,
the church was not permitted to add a parking lot, but was given the right
to use a fourth story in a neighborhood zoned for two stories, and because
it prevailed on that single issue, the city could be liable for attorney™s fees
for the church™s entire litigation.
The Guru Nanak Sikh Society of Yuba City, California, ¬led an appli-
cation in 2001 for a conditional use permit to build a Sikh gurdwara, or
temple, in an area designed primarily for single-family residences. The
project was to be built on 1.89 acres and included a “2,000 square-foot
assembly area; 1,550 square feet dedicated to restrooms, storage and an
entryway; an additional 1,500 square feet dedicated as a dining area; and
conversion of an existing building to be used as a commercial kitchen
for temple activities. The proposed temple site would hold religious cer-
emonies for no more than 75 people at a time.”86 The application was
denied, and in the course of the inevitable RLUIPA lawsuit, the trial court
ruled that the county planning commission violated RLUIPA, because
“˜preventing a church from building a worship site fundamentally inhibits
its ability to practice its religion.™” 87 This is extremely troubling reason-
ing, because the logical conclusion is that any religious entity that seeks
permission to build anywhere and is denied has already shown a substan-
tial burden on its religious exercise “ whether it is a religious school for
a 1,000 students or a megachurch landing in a residential neighborhood.


Racing from the local land use authorities to federal
court in RLUIPA cases
Before RLUIPA was enacted in 2000, cities, towns, municipalities and
their organizations asked that RLUIPA include a provision that required
landowners to exhaust the local land-use process before RLUIPA could be
invoked. Apparently, they saw the specter of early land-use rulings on any
RELIGIOUS LAND USE AND RESIDENTIAL NEIGHBORHOODS / 105


application by a religious entity taking them straight to federal court “
before they even had a chance to fully investigate the case. They did
not get the provision, although the legislative history does include the
following: The “Act does not provide religious institutions with immu-

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