delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998
I am here to discuss dramatic instances of religious persecution that may at first glance appear as somewhat of a hangnail. That is the use of law in the United States to prevent churches and religious groups from establishing houses of worship or religious edifices of some kind. These laws come under the categories of zoning laws and land-use laws. I hope to illustrate why this is something that we might want to concentrate on.
A few years ago several of my friends and colleagues at Brigham Young University worked on a study of the cases in which religious groups in the United States had sought permission to establish a new church house in various locations. The study started from the basic proposition that if the laws of land-use planning and zoning were, to borrow the Supreme Court’s terms, generally applicable and neutral, then the policy should impact all religions and other applicants in more or less the same way. The study not only failed to find that sort of consistency, but found a huge disparity. While minority religions represent just 9 percent of the general population of this country, they were involved in over 49 percent of the cases regarding the right to locate a religious building at a particular site, and lost more of those cases than you would expect given the overall caseload.
I would like to illustrate this by describing the recent experience of the Latter Day Saints church in attempting to establish a temple. I am referring to a building of special religious significance for us in the community of Forest Hills, Tennessee, just outside Nashville. In 1991, by coincidence just after the Supreme Court’s decision in Employment Division vs. Smith that articulated the generally applicable and mutual test, the city of Forest Hills adopted a comprehensive zoning plan. The plan emphasized the overwhelmingly residential aspect of the city and set aside a specific zone in which religions could establish themselves and build churches. The problem was that there were four churches in the city of Forest Hills, and they already occupied all the property that was zoned as educational and religious property. There was simply no other land available. The LDS church, after several false starts, acquired a parcel located at the intersection of two major highways, really not suitable for residential use and also adjacent to three other churches. So it was very close to the property that had been zoned in this manner.
The church sought a variance from the local zoning ordinance. After considerable discussion and the presentation of building plans for that site—which were to construct a building very much in keeping with the character of the religious buildings located on the adjacent property—the city zoning board turned the church down, saying that, “The temple would not be in the best interest of and promote the public health, safety, morals, convenience, or the general welfare of the city.” The city board of commissioners accepted this recommendation. Since it had now become painfully clear to the church that the city of Forest Hills was not going to approve any site the church selected, the church reluctantly decided to press its case in court. By sheer bad luck, in the course of that case the Supreme Court issued its decision in the Flores case, which undid the Religious Freedom Restoration Act.
Although the church does not have any evidence, and does not in fact believe that there was religious persecution involved in the denial of its request with respect to this property, the lesson is that the test which the Supreme Court has articulated works a great hardship on religions, particularly minority religions, that may be attempting to establish themselves in a given community.
Let me just touch on one other area. This relates to the receipt of tithes and offerings. Many religions as part of their practice have an offering that is received by the church. The offerings sometimes intersect with bankruptcy law. The church now has pending before it requests from trustees in bankruptcy situations where a member of the church has paid his tithe and then gone into a bankruptcy proceeding. There are 400 requests to return that money to the trustee that the church is contesting. Fortunately, the picture here is quite good. Two recent decisions, one, in the Eighth Circuit Court of Appeals, and one, in the District Court in Idaho (neither involving the Church of Jesus Christ of Latter Day Saints directly), confirm that the Religious Freedom Restoration Act is alive and well, at least as it applies to federal bankruptcy law.
I have spoken primarily of minority churches, but in fact, every church is a minority church, somewhere. In my wife’s neighborhood in Salt Lake City, I dare say that there the majority church would be the Church of Jesus Christ of Latter Day Saints. Many of you followed the recent and so far at least happy tale relating to the Islamic Education Center that is proposed to be built in Ashburn in Loudon County in the Washington area. These issues of what churches can do with respect to establishing facilities where members can come and worship should be important to us as we move into the 21st century.