I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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RFRAs, the Establishment Clause, and Land Use Regulation (no! seriously!)

I’ve been giving a lot of thought about Religious Freedom Restoration Acts (RFRA), state and federal, since this Spring (with the passage of Mississippi’s own such act) and this week (with the Hobby Lobby case using the federal act).

Recall that we were told that the state act was fine because the federal act was fine.

What the language of the federal and state RFRA does is this:  It says that, if someone can show that a neutral statute of general application is a “substantial burden” on the exercise of their religious faith, the statute fails unless it can survive strict scrutiny review, which is the most onerous form of constitutional review.  Although the professor’s rubric that strict scrutiny is “strict in theory, fatal in fact,” may be slightly exaggerated, it’s not exaggerated by much.  If a court reaches the point of deciding a statute is a “substantial burden,” that statute is well on the way to being held illegal as applied under the language in RFRAs.

This Spring, my reaction to the passage of the Mississippi RFRA was a little bit visceral, a little bit little-c conservative (do we really know what this thing will do?), and a little bit willing to accept the arguments from supporters of LGBT rights that this was a serious blow to their efforts toward full citizenship.

I’m still where I was on the last point, but, having spent some time trying to become better informed, I’m a lot less reliant on a visceral hostility and more willing to phrase the middle point like this:  OK, given the federal experience and the literature, is this really something we want, and are we sure we know what it will do?

But I want to thrash this out with a more neutral question than gay rights or parades of horribles involving race and folks who believe in Christian identity or who believe as Christians that part of their faith is a Biblical basis for segregation.

Reading about the subject, I decided to seek out the writing of Douglas Laycock, a professor at the University of Virginia Law School, who is to a great extent the intellectual father of RFRAs.

One of his major articles, and a major issue for him, is about when (in his opinion) land use regulation can burden religious worship such that it would violate the RFRAs he is advocating.   The article, “State RFRAs and Land Use Regulation,” 32 U.C. Davis L. Rev. 755 (1999), is available online through Professor Laycock’s site at Virginia.

Laycock presents several problems for which he advocates RFRAs.  He is absolutely convinced that there is a national problem of using zoning laws to discriminate against churches, and that the great power of things like neighborhood associations (HA!), who oppose any development, is making it hard for new churches to open, and he thinks that historic preservation ordinances or statutes are a problem by tying the hands of churches who happen to have buildings designated as historic.  He also thinks that minority churches are particularly likely to get mistreated.

But he’s somewhat slippery about what “mistreated” might be.  I agree with him that there is a problem with the (very few) places he names where public officials are saying, “We don’t want new churches,” and where zoning is used to discriminate against churches as opposed to other similar uses.

But he goes far beyond that.  He makes pretty clear that churches should be privileged and that RFRAs are designed in part to accomplish that.

I’ll make an assertion of what I believe, and would hope the Establishment Clause of the Constitution would support:  That a government entity enforcing land use planning laws should treat a church like any other similar entity, such as a movie theater.    Laycock admits that a city would have an interest in regulating street parking and saying to a church it must have adequate parking to build, but he goes farther than that:  He suggests that ordinances that tie a set number of lots to a set size of building (that apply to everyone) should probably not be applied to a church, because it is a church.

In my view, any arrangement that gives favored status to a church should run afoul of the Establishment Clause.  And, if RFRAs are designed to do that (I am growing to a relatively certain view that they are so designed), they ought to be unconstitutional.

So here’s a non-hot-button way to debate these things:  For land use purposes, should a church be treated the same as other similar uses, or, if the church or its members can concoct a reason to argue that a land use ordinance is a burden on their religious services, must that ordinance survive strict scrutiny when challenged based on a state’s RFRA?

And, if you think my question is unlikely to occur in the real world, recall that, in the case where the United States Supreme Court held that federalism barred Congress from imposing a national RFRA on the states, the church was arguing that a historic preservation ordinance that limited their ability to alter the outside of a historic church was a substantial burden on their religious faith.   Separate out whatever you think of historic preservation ordinances before you leap to answers here.  Is that really the sort of argument we want to allow?

12 comments to RFRAs, the Establishment Clause, and Land Use Regulation (no! seriously!)

  • EAB

    And let’s all remember that “church” includes Scientology Centers, Hindu temples, and the like, as well as your standard Episcopalian and Catholic and Baptist churches. I tend to find that many of the people advocating loudest for RFRAs become decidedly squeamish when you substitute “mosque” for “church”.

    The city of Brandon had a controversy last fall which I think is relevant here, where a non-profit religious group whose mission is to erect giant crosses teamed up with First Baptist of Brandon. They wanted to put a 110-foot steel cross on First Baptist land bordering I-20. The Planning Commission said no, because a city ordinance limits structures to 20 feet; they denied a variance but offered a compromise of 50 feet, which the cross people then rejected as insufficiently grandiose.

    There was, of course, a good deal of muttering about how this was a violation of religious freedom and so forth. My sense is that this was probably to some degree a driver behind the passage of our RFRA. Clearly, a substantial number of people were perfectly willing to make a land-use exception for a giant cross, and I think it very plausible that similar efforts in the future would produce RFRA litigation.

    I absolutely agree that it’s a bad idea to treat giant crosses (or statues of Buddha) differently than, say, giant Eiffel Towers. “Let every person be in subjection to the governing authorities. For there is no authority except from God and those which exist are established by God.” (Romans 13:1)

  • Jesse

    Our political culture is so divided, everything that gets decided on a hot button issue like this inevitably gets divided into “good vs. evil.” I finally read the Hobby Lobby decision today, and it’s just a basic statutory interpretation case involving whether the RFRA applies to closely-held corporations. I think there are reasonable arguments both ways. I frankly think that the majority has a good argument that these mom and pop companies are pretty analogous to an individual. The dissent makes some good points as well, but it’s a close case.

    And here’s a cold, hard fact: the RFRA passed the US Senate 97-3 and it passed the House unanimously. And it basically just applies the Sherbert test that was the Supreme Court’s prevailing standard on the Free Exercise clause for a number of years.

    But of course nothing these days can just be a close statutory question. It has to fit into some larger narrative which inevitably comes down to “my guys are good and your guys are evil.” Gets pretty tiresome for a confirmed moderate such as myself.

  • Churches are great zoning buffers between commercial and residential land use. Usually they have a lot of green space as well as landscaped parking. In these latter days, the only high traffic churches are those that sponsor the anonymous treatment groups.

  • In the city of Greenwood, the zoning requirements for a church are actually far more strict than for any other business. For one thing, you cannot build a church in Greenwood on less than 2 acres of land.

    Of course, almost all the churches have less than 2 acres of land.

    Nobody has had to challenge the ordinance because the city council will vote for a variance or exception in almost every case.

    The only time anybody has had to sweat it was when the Black Muslims asked for a variance three or four years ago. The Republican city council members both voted against the variance, with one of them telling the newspaper that she would vote against the variance because the Black Muslims are a “hate group.”

    The editor of the Greenwood Commonwealth also called on the council to deny the petition on the same grounds.

    I was the only white person in Greenwood to publicly speak out in favor of treating the Black Muslims the same way other religious groups were treated. I picked up a good deal of hatred and scorn for that.

    But they did get their variance. The Majority black members of the city council voted it through, as they should.

  • NMC

    I remember that now, John Pittman Hey.

    How do you feel about my view that a church should be treated as any other similar landowner (e.g. a movie theater)? Picking and choosing based on one’s view of a particular church is, of course, wrong.

    In Oxford, the variance requests by the First Baptist Church have been an issue a few times (they always get what they want), and created a problem. There is a height ordinance that was designed to protect the way the courthouse in the Square dominated the buildings around it. First Baptist wanted out of that requirement, packed a meeting, and managed to get what they wanted. Then, one other building owner said, “we’re as far away in another direction,” and other exceptions crept in. Now the height ordinance means nothing, and if the city enforces it against anyone, they’ll get sued.

  • Ben

    The people who applaud RFRA the most have problems when their religious “principles” are forced to yield to anothers’:

    Read, especially, the comments following the brief article.

  • Citizen Alan

    EAB, it’s adorable that you think the RDFA will ever be used to protect minority religions the same way it will be used on behalf of the religious right. The opinion flat out says that the views of Jehovah”s Witnesses vis a vis blood transfusions are not entitled to the same respect as the Catholic Church ‘ s views on contraception.

  • NMC, I don’t have a problem with treating churches and theatres equally, just so long as the government doesn’t regular theatres.

    Remember, I’m for tiny government. I used to say I was for limited government, but then I realized that lots of Republicans claim they are too, all the while they advocate for bigger and bigger government. So now I use the word “tiny”.

    I don’t support “Land Use Regulations.” Those are just attempts to convert somebody else’s property to one’s own use, or to the public’s use.

    If people want to control how their neighbors use their property, then they need to approach that desire via restrictive covenants and contracts.

    I’m sure that the people who designed the federal government had no intention at all of the federal government interacting with houses of worship. Frankly, they didn’t dream that the federal government would interact with most ordinary citizens. The idea that Congress would order citizens and business owners around, telling them what to buy, who to hire, what to sell, etc., would have been repugnant to them.

    It is still repugnant to me. What the ACA and the Hobby Lobby suit really show is, you cannot have religious liberty where property rights and the right to be left alone by the state have already been overthrown.

    The more regulation the federal government imposes upon us, the fewer freedoms we have. As this ratchets up, it will perforce impinge upon religious liberty as well, just as it has upon associational liberty, gun ownership, Fourth Amendment protections, Fifth Amendment privileges, etc., etc.

    It turns my stomach to even think about what is becoming of our liberty. I had to fight like blazes here in Greenwood to oppose a sign ordinance that would have stopped me from posting Bible verses on a sign in my own front yard.

    Oh, and Republicans here supported the ordinance. So much for “limited government.”

  • Jesse

    One thing is clear: the Hobby Lobby plaintiffs wouldn’t have even had an argument if the Supreme Court’s Employment Div. v. Smith decision hadn’t been overruled by the RFRA. The whole point of Smith was that, when considering a neutral law of general applicability, courts shouldn’t get into the question of whether it impeded a particular plaintiff’s spiritual development.

    After Smith, both liberals and conservatives in Congress freaked out and almost unanimously passed the RFRA saying “yes, we DO want you to decide if a law infringes on someone’s exercise of their religion” and they phrased the statute in very strong language that the Supreme Court just applied in Hobby Lobby. In fact, Ginsburg’s dissent basically admits that the langauge in the RFRA says what the majority states it does, she just said Congress couldn’t have really MEANT it.

    That’s the actual legislative history of the matter, it’s not quite as simple as “conservatives on the Supreme Court hate women and don’t want them to have birth control.” But that’s how it’s perceived by the general public, so this is a big political win for Democrats.

  • a friend of the law

    I think a church should be treated the same as any other landowner with respect to land use regulations — no better and no worse. And just like any other landowner, the church has the ability to seek a variance from the local governing body that enforces such regulations.

    Some of you cite anecdotal evidence of examples of churches often getting their way on variance issues, yet there are likely just as many examples of land use laws being designed and/used to hinder potential new church development or expansion of existing locations. In the end, most of the time the local governing body, church and community work toward a practical compromise that all can live with on these issues.

    As a MS resident, I have not personally felt that my religious rights have been violated or restricted in any substantive way by land use ordinances. I was involved as a trustee in helping to launch a new church approximately a decade ago. The land use issues we had to deal with and work around were no different than any other similar landowner. Of course, we weren’t trying to make a political statement or assert any agenda, other than creating a nice, comfortable, unpretentious place to worship in order to reach the unchurched. No government forces stopped or impeded our goals. The church has been very successful in reaching the previously unchurched, and has a growing, diverse congregation.

  • Kinky Freeman

    Well, now, see, this is the kind of thing that happens when the Fed and the Supremes get involved in things which they have no business being involved. The question is not whether this company or that one can, should or must provide contraception, the real question is, “WTF is the federal government doing getting anywhere near health insurance…(or marriage, abortion, etc., etc., etc.)?”

    The Fed ought to stick to things about which it has clear Constitutional authority because those are things it can clearly handle successfully, such as prohibiting alcoholic beverage consumption, preventing wimmenfolk and nigras from voting, invading Afghanistan and…um, OK, so perhaps those last three do need a bit of tweeking before the “Mission Accomplished!” banner gets hoisted, but one need look no further than the wildly-successful war on drugs…OK, OK, OK…Ah-HA! Taxation! The Fed does that very sucess…wait, wait, wait – give me a minute…bank regulation, natural resource management, website design and implementation…no, NO, and hell NO! I just know there has GOT to be something…airport security, border control, there’s got to be at least one thing it does beyond all expectation…I GOT IT!!!! SPYING! It spies so well you’d think it ought to be illegal!

  • CC Allen

    I like the idea that churches shouldn’t be treated differently from businesses or residences – at least as to ad valorem taxes. How much more ‘respect’ can you get than being tax free? But I understood that traditional establishment clause theory prevents the government from treating one church different from another. The concerns you raise seems to be addressed in a much more prudential manner so to avoid excessive entanglement between church and state (Lemon test).

    If your assertion, that “land use planning laws should treat a church like any other similar entity, such as a movie theater,” is true, do we want to inquire as to where those prudential boundaries lie. Who decides similarity? As you stated, land use law doesn’t treat all business equally. The commonly-used categories of retail/commercial, industrial, and institutional uses are based on legitimate distinctions. Which category are churches similar to? Do they need to be most similar to one, or is some similarity enough? Could the decision-maker say that some churches are more similar to hospitals and others to movie theaters? Are we really going to get the government involved in taxing church property?

    While I think the establishment clause theoretically allows what you suggest, I always back off for those prudential reasons.

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