Questions rise on land rights of faith groups

Sites such as the Rochambeau can take a back seat to religion

August 14, 2006|By JILL ROSEN | JILL ROSEN,SUN REPORTER

As Baltimore officials considered razing the 100-year-old Rochambeau apartment building, the city's codes and ordinances succumbed fairly quickly before the Archdiocese of Baltimore's arguments of faith.

Church leaders, empowered by a federal law that gives religious organizations special treatment in land-use cases, convinced the city that denying them a demolition permit to build a prayer garden amounted to denying them the right to practice their religion.

But not everyone finds that federal law as incontestable as does Baltimore. Across the country, legal scholars and public attorneys are questioning the thinking behind the Religious Land Use and Institutionalized Persons Act, and wondering whether it could withstand a Supreme Court challenge.

"It is a huge club that religious institutions use to get around meaningful ordinances," says Marci Hamilton, a constitutional law professor at Yeshiva University. "I think it's always a mistake to cave."

Hamilton, while representing the Texas city of Boerne in 1997, helped convince the Supreme Court of the unconstitutionality of the law's quite similar predecessor, the Religious Freedom Restoration Act. That case arose when Boerne held firm on its preservation laws and prohibited a church from adding onto a historic building.

Though proponents of the newer version of the law believe it is more constitutional, others like Hamilton say it's a matter of time until another challenge works its way to the highest court.

"We have given the federal courts the power to just sweep aside matters like residential character and traffic - all the things that matter to private landowners," Hamilton says. "It's an extraordinary intervention by the federal government."

The land-use act forbids government from imposing on spiritual groups rules that "substantially burden" religious exercise.

Policymakers who wrote it sought to prevent discrimination and assure religious groups special accommodation.

Churches, synagogues, temples and mosques use the rule to get exemptions from, among other things, zoning laws, preservation restrictions and seizures of property.

Well before Congress passed the act in 2000, houses of worship and the public sector were clashing over property rights.

Hundreds of cases citing the land-use act are winding their way through the court system as governments refuse to bend their rules for religious organizations and those groups refuse to take no for an answer.

A Sikh temple in Yuba City, Calif., wants to build on land zoned for agriculture.

The city of Cheyenne, Wyo., won't allow a Methodist church a zoning variance to build a day care center in a residential area.

A church growing out of its space in California wants to move into a building in a commercial area where the zoning doesn't allow for worship.

And like Baltimore, other municipalities are crying uncle before their disputes with religious groups ever hit the courts.

Bob Tuttle, a George Washington University law professor, says that when governments give up, the decision is more often about money than principle.

"You don't see a lot of jurisdictions wanting to engage in out and out warfare with religious groups," he says. "It's easy to spend $50,000 to $75,000 on one of these cases."

Yet plenty of jurisdictions are putting up the cash, says David Parkhurst, legislative counsel for the National League of Cities: "It's sucking a lot of money out of municipal legal budgets."

As a local-government advocate, the League of Cities drafts reams of amicus briefs in disputes invoking the land-use act, which Parkhurst repeatedly calls "an assault on local authority."

"This boils down to a fundamental issue," he says. "Is this really a national problem that requires federal intervention?"

Derek Gaubatz, director of litigation for the Becket Fund for Religious Liberty, which often helps religious groups pay for these court battles, takes great offense at that premise.

Not only do houses of worship suffer from outright discrimination by municipalities, he says, but from "mushy" zoning laws that allow communities to rebuff churches at will.

"People keep trotting out this idea that this violates the separation of church and state," he says. "That's a complaint with religious freedom being a cherished human right. Religion does get special treatment - that's the whole point."

In Baltimore, the Rochambeau disagreement may yet wind up in court. A small coalition made up of the Mount Vernon Belvedere Association and nearby home and business owners has asked city officials to reconsider the demolition permit they granted the archdiocese this summer.

A decision is due by early September.

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