Religious Freedom: What’s All the Fuss About?
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by Ryan Snow
“Those of us who spend most of our time working on religious liberty issues find it extremely dismaying, and somewhat ironic that … a city like Forest Hills most probably cannot zone out of its community a sexually oriented adult bookstore, but can totally zone out a church that desires to erect a temple for the use and edification of its religious members. Something is wrong here, and it needs to be fixed.”
– Mr. Von Keetch
Legal Counsel for the Church of Jesus Christ of Latter-day Saints
In 1990 and 1997, the combined impact of two Supreme Court decisions weakened religious freedom protections and left churches in a very vulnerable position, especially in terms of land use rights. Some may think that legislation protecting churches and their right to build places of worship isn’t necessary – that a city would never discriminate against a less popular religion, but the weakened state of religious freedom following the decisions of Smith and City of Bourne provided ample evidence to the contrary (read more in this blog series, Religious Freedom: What’s All the Fuss About?). One clear example of the vulnerability facing churches in America was evidenced when The Church of Jesus Christ of Latter-day Saints (the “Church”) was prohibited from building a Temple in the city of Forest Hills, Tennessee.
Around 1994, the Church initiated efforts to build a temple on land it had previously purchased in Forest Hills. The City’s zoning plan effectively prohibited all new churches from constructing a place of worship in the City without permission. When the Church asked authorities in Forest Hills for permission to build a temple, one hundred and twenty residents showed up to oppose the change and the zoning authorities unanimously rejected the proposal.
In good faith, the Church bought a second parcel of land for a temple at great expense. The new site addressed previous concerns raised by the City. Three other churches belonging to different denominations were located immediately across from the site. In fact, a church for a different denomination had previously stood on that exact piece of property. After designing a building to match the same size, height, and capacity as surrounding religious facilities, the Church again sought permission to build a temple. The Planning Commission, however, determined the temple would not be “in the best interests and promote the public health, safety, morals, convenience, order, prosperity, and general welfare of the City.”
Concerned about the important implications for religious freedom, the Church reluctantly filed suit, arguing that allowing a City to shut its doors to all new churches unnecessarily trampled on the religious rights of individuals to worship together. But the state court judge, relying on the 1990 Supreme Court Smith decision, ruled in favor of the City. The Church never was able to build a temple in Forest Hills. Instead, after six years the Church finally erected a temple in Franklin, Tennessee.
The discrimination challenges faced by the Church provided valuable testimony aiding in the passage of the Religious Land Use and Institutionalized Person’s Act (RLUIPA) by Congress in 2000. While Mr. Von Keetch, as legal counsel for the Church, admitted that he knew of “absolutely no definitive evidence showing that City officials in Forest Hills intentionally engaged in religious discrimination against the LDS Church.” He testified, “that, however, is exactly the problem.… The difficulty is that such direct prejudice is impossible to prove in all but the most unusual cases.”
While perhaps impossible to prove intent, extensive evidence suggested local governments likely discriminated against various other religious faiths as well during this time, including Muslims, Catholics, Baptists, Methodists, Buddhists, Quakers, Hare Krishna and other non-denominational faiths. Although minority religions represented less than 9% of the general population, over 68% of reported cases involving disputes over building construction involved minority and unclassified religions in one study.
Both Republican and Democratic Senators found the evidence compelling and argued for enacting RLUIPA to provide “broad protection of religious exercise” in the area of land use, requiring local governments to again weigh the value of their regulatory goals against the burden imposed on religious freedom. RLUIPA prohibited local governments from totally excluding one religion from an area or placing unreasonable limits on religious gatherings.
The passing of RLUIPA has not stopped religious land use discrimination, but it has limited the ability of local governments to become judge, jury and executioner, placing minority religions at the total mercy of city governments. Difficulties facing religious freedom continue, but just as RLUIPA was finally passed to reinstate protections for religious freedom after significant setbacks, so too can bipartisan groups work together to honestly evaluate risks to religious freedom and find balanced solutions that are fair for all.
Summary: The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. The Board of Commissioners of the City of Forest Hills
BACKGROUND: The Church of Jesus Christ of Latter-day Saints is unable to build a temple in Forest Hills, Tennessee due to zoning ordinances for which city officials would not make an exception.
ISSUE: Was refusing to allow the Church to build a temple in Forest Hills, Tennessee illegal or unconstitutional?
OUTCOME: Under existing law in 1998 (when the case was decided), the City’s actions were both legal and constitutional—and that was a problem.
IMPACT: The Church of Jesus Christ of Latter-day Saints is one of several organizations that testifies before Congress in favor of protecting religious freedom in land use. Congress passes RLUIPA in 2000, which was upheld as constitutional in 2005.
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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