Church freedom vs. the common interest?
[8-10-02]
PresbyWeb
recently took note of a report from Southern California that a federal
judge has blocked the city of Cypress in its effort to condemn
church-owned land to allow for the building of a new Costco store. Gene
TeSelle comments that this points to a major legal controversy brewing.
According to a
report in the Orange
County Register, "U.S. District Judge David O.
Carter said there is strong evidence that Cypress' attempt to build a
Costco on land where Cottonwood Christian Center of Los Alamitos wants
to build a $50 million worship center violates a controversial federal
law that restricts cities' ability to block church building
projects."
The case grew out of a suit by the Pacific Legal
Foundation and the Becket Fund for Religious Liberty, well-funded
conservative advocacy groups working to expand individual rights against
actions by local governments on behalf of the common interest.
TeSelle adds this comment (but you may want to look
at the Register's
report first):
The lawsuit was filed by the Becket Fund for Religious Liberty, a
DC-based conservative advocacy group with income of $1,500,000 last
year. (It's named, of course, for Thomas á Becket, martyr for the
freedom of the church.) Stephen Carter is one of the board members. They
file suits in support of school choice, prayer, vouchers, and (most
pertinent here) any form of land use regulation by local jurisdictions.
The Fund has supported Jewish and Islamic as well as Protestant and
Catholic congregations, sometimes with the ACLU and the Freedom Forum.
Toward the end of the
article, law professor Marci Hamilton points out that the Religious Land
Use and Institutionalized Persons Act (RLUIPA), passed by Congress and
signed by President Clinton during the campaign year of 2000,
inadvertently encouraged lawsuits by letting churches recover attorneys'
fees if they win.
In a number of the cases filed by the Becket
Fund, planning and zoning officials are sued personally as well as in
their official capacity, putting all their assets on the line.
(The Fund can be found on the web at both Becketfund
and RLUIPA.)
The RLUIPA replaces RFRA, the Religious Freedom
Restoration Act, struck down by the Supreme Court in 1997 for exceeding
the constitutional powers of Congress. The new act tries to avoid that
by focusing on two specific issues, but it obviously is far-reaching in
its effects. It has not yet been tested all the way to the Supreme
Court.
Most legal scholars feel that the Court tilted
the wrong way in the Smith decision in 1990, emphasizing the force of
"neutral laws of general applicability" in a Native American
peyote case. RFRA went to the other extreme by requiring that government
avoid "substantially burdening" the exercise of religion,
which means that any law must be in furtherance of a "compelling
government interest" and that it be pursued with the "least
restrictive means."
Churches in their institutional mode, including
the PC(USA), have wanted to gain maximum freedom in zoning, land use
regulation, and historic preservation. But this often puts them on a
collision course with neighborhood organizations as well as city or
county jurisdictions. While some restrictions may be based on prejudice,
the law requires that they be based on good planning principles that are
applicable to all property owners. At times religious congregations seem
to want special privileges and wrap themselves in the First Amendment to
get them; when that happens, they may look to their communities like
nothing more than obtrusive bits of real estate, administered by
truculent lawyers.
