Build a New Church, but “Don’t Touch a Rock on the Old One.”

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Religious Freedom: What’s All the Fuss About?


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by Ryan Snow
Al Gore. Photo is public domain.

“Those who want churches close to where they live have seen churches zoned out of residential areas. Those who want the freedom to design their churches have seen local governments dictate the configuration of their building.”

– Al Gore


As Americans, we assume churches are largely protected from government intrusion and control. But Muslims, Mormons, Catholics, and many others, have experienced significant opposition when attempting to build places of worship. Churches often face hostility in the context of zoning, “because they are tax exempt, and local officials do not like taking property off the tax rolls.”  In an effort to shore up religious protections, Congress enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Prior to this act taking effect in September of 2000, several churches and religious organizations reported experiencing discrimination when seeking to build or alter places of worship.

The specific court case that prompted RLUIPA was City of Boerne v. Flores, where a Catholic Church in Boerne, Texas (near San Antonio) wanted to expand its own building.

By the early 1990s, the 70-year-old St. Peter Catholic Church in Boerne, Texas, (“St. Peter”) could no longer provide adequate seating for all who desired to attend religious services. Originally designed to seat 230 worshipers, the church now needed to accommodate a 2170-person congregation. The church made plans to enlarge the building, but less than a year later the City of Boerne enacted an ordinance “to protect, enhance and perpetuate selected historic landmarks” and to “safeguard the City’s historic and cultural heritage.”  The front façade of St. Peter was designated as part of the historic district.

St. Peter sought permission from the City of Boerne to enlarge its building and even submitted a proposal to preserve the façade, but St. Peter’s request was denied. The Historic Commission demanded the church preserve all of the 1923 structure and that “no plan for even partial demolition would be approved.” Specifically, St. Peter was told, “We would like you to build a new church, but don’t touch a rock on the old one,” an injunction that would add $500,000 to the project’s cost.

In response, Archbishop Flores sued the city for the ability to expand the church, relying on RFRA. The city responded by challenging Congress’ authority to enact RFRA. Although the city had originally only designated the front façade as part of the historic district, after litigation commenced the city redrew the boundaries to encompass the entire church.

© Copyright Sandy Weaver. Used with Permission of Attribution Generic License.

The case finally worked its way to the U.S. Supreme Court where St. Peter lost. The Court determined Congress did not have authority to make RFRA applicable to the states. RFRA was partially invalidated, and St. Peter was left without protection.

Luckily, when the Supreme Court reached its decision in 1997, the city and church had reached an agreement on their own that preserved 75 percent of the old church structure, while permitting construction of an 800-seat addition. Finally, after substantial difficulty and negotiation, in 1999, nearly a decade later, St. Peter got the needed expansion.

With a now partially invalidated RFRA, Congress responded by enacting a narrower bill, RLUIPA, to provide protection for religious organizations in the future against discrimination by the government. When President Clinton signed the law, he thanked those involved, commenting that the “work in passing this legislation once again demonstrates that people of all political bents and faiths can work together for a common purpose that benefits all Americans.”

The constitutionality of RLUIPA was soon challenged in Court, but in 2005 liberal Supreme Court Justice Ginsburg—in a 9-0 decision—wrote the Court’s opinion upholding RLUIPA against constitutional challenges. Overall, scholars assert, “RLUIPA has proven its worth. Churches have brought numerous successful lawsuits protecting their core first Amendment rights, and many more cases have settled. Local officials are now on notice that they cannot treat churches as a disfavored land use, despite … fear of Muslims or other prejudices…”

 

Summary: City of Boerne v. Flores

BACKGROUND: A church is denied the ability to enlarge its own building due to a city ordinance passed shortly after planning to expand. The church sues the City of Boerne relying on RFRA.

ISSUE: Does RFRA protect the church, or did Congress exceed its power by enacting RFRA and subjecting states to federal legislation?

OUTCOME: The Supreme Court partially invalidates RFRA, ruling for the city.

IMPACT: Congress responds by enacting a narrower bill, RLUIPA, to protect religious organizations against discrimination by the government in the future.

Ryan Snow is a graduate of Brigham Young University - Idaho and SMU Dedman School of Law. He currently practices law in Texas and enjoys spending time with his family.


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