Amicus Curiae Brief — City of Boerne v. Flores

Supreme Court brief1997

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No. 95-2074 4

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Supreme Court of the United-States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

z Petitioner,

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent.

and

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

VON G. KEETCH W. COLE DURHAM, JR.

ALEXANDER DUSHKU JAMES A. SERRITELLA

Kirton & McConkie JAMES C. GEOLY*

1800 Eagle Gate Tower KEVIN R. GUSTAFSON

60 East South Temple STEFFEN N. JOHNSON

Salt Lake City, Utah 84111 Mayer, Brown & Platt

(801) 328-3600 190 S. La Salle Street

Chicago, Illinois 60603

FREDERICK MARK GEDICKS (312) 782-0600

1338 East 660 North

Orem, Utah 84097

(801) 224-9389 *Counsel of Record

—_

QUESTION PRESENTED

In light of free exercise problems faced by minority

religions, does the Religious Freedom Restoration Act

represent a legitimate exercise of Congress’ power to enforce

rights guaranteed by the Fourteenth Amendment through

remedial legislation?

TABLE OF CONTENTS

CHIBBIMIN PIEIGUNEED 6 cctv eceeevdens

INTEREST OF THE AMICUS CURIAE ......

SUMMARY OF ARGUMENT ............

£8 & @.4- 9 2 O 8 a 4-8 ac 4 2 SS eee eS

I. THE HISTORICAL EXPERIENCE OF THE

MORMON CHURCH UNDERSCORES THE

Na? Pe MP 0.6 eh er eda wae 8%

A. The

Persecutions of Mormons in Missouri

in the Late 1830’s Exemplify Violations of

Religious Rights that the Fourteenth

Amendment was Designed to Remedy .

‘.

B. The

and

The Absence of Federal Remedies

Meant That No Relief Was Available

for the Persecutions of Mormons in

MEO 5. v5. 4 ve wee

The Fourteenth Amendment Was

Designed in Part to Remedy

Antebellum Incursions on the Free

Exercise of Religious Minorities . . .

Use and Abuse of Ostensibly Neutral

General Laws Resulted in Serious

Incursions on Religious Freedom in

TORRE VEER 3.5. oe bee eee see

Page

TABLE OF CONTENTS—Continued

Page

Il. WITHOUT RFRA, THE TYPES OF OVERT

AND COVERT HOSTILITY TOWARD

MINORITY RELIGIOUS FAITHS THAT

HAVE AFFLICTED MORMONS' ARE

DESTINED TO IMPOSE IMPERMISSIBLE

BURDENS ON A WIDE ARRAY OF

RELIGIOUS PRACTICES ............ 10

Il. IN. ENACTING RFRA, CONGRESS

PROPERLY COMPENSATED FOR

STRUCTURAL BIASES THAT IMPEDE THE

EXERCISE OF RELIGIOUS LIBERTY .... 20

A. Congress Has Authority to Remedy

Violations of Religious Liberty Stemming

From a Growing Secularist Bias that

Distorts Governmental Neutrality ..... 21

B. Congress May Legitimately Act to Correct

the Encroachments on Religious Liberty

Emanating From the Structure of Modern

Bureaucratic Government ........... 22

C. RFRA Compensates for Inherent Limits on

Legislative Capacity to Craft Religiously

Sensitive Exemptions ............ 27

D. Congress May Legitimately Reallocate

Burdens of Justification When Proof of

Constitutional Violations Is Difficult to

RE a ae we oe 6 68 6 ve 28

TABLE OF CONTENTS—Continued

Page

E. Legitimate Religious Freedom Claims in

the Field of Land Use Regulation Are

Likely to be Inadequately Protected

po I Oe ee P 29

ee eee rrr eer ee Ce 30

APPENDIX

TABLE OF AUTHORITIES

Cases: Page

American Friends Serv. Comm. Corp. v.

Thornburgh, 961 F.2d 1405 (9th Cir.

ED eb bo 5 6 oe a ee a ee ae ae 17

Attorney General v. Desilets, 636 N.E.2d 233

SN ME fk alte o Sone e Oe ge Sb» 16

Barron v. Baltimore, 32 U.S. (7 Pet.) 243

FP aes eee re ee 6

Bessard v. California Community Colleges,

867 F. Supp. 1454 (E.D. Cal. 1994) ... 13, 27

Blum v. Bacon, 457 U.S. 132 (1982) .......... 24

Buhl v. Hannigan, 20 Cal. Rptr. 2d 740 (Ct.

Ph, Se es oe ei hn ower ees 14, 27

Cantwell v. Connecticut, 310 U.S. 296

co ea aa i ll a Lali ig 26

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837

NN sea ako rk ie is ole ok wa ee 0 24

Christians v. Crystal Evangelical Free

Church, 82 F.3d 1407 (8th Cir. 1996),

cert. pending, No. 96-437 ............. 17

Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520 (1993) ....... 26, 28

City of Euclid v. Ambler Realty Co., 272 U.S.

Pe GE o's bs RS 6 Owe ee eS 25

TABLE OF AUTHORITIES—Continued

Page

Clawson v. United States, 114 U.S. 477

CIGD 6 6s 0 Hae 0 be ower a eee sees 9

Cooper v. French, 460 N.W.2d 2 (Minn.

RUNG wdcaedevinveene cemeereres 16

Cornerstone Bible Church v. City of Hastings,

948 F.2d 464 (8th Cir. 1991)........... 15

Davis v. Beason, 133 U.S. 333 (1890) .......... 9

Edwards v. Aguillard, 482 U.S. 578 (1987) ... 28, 29

Employment Division v. Smith, 494 U.S. 872

ASN Sse e eet ad adtererwneeer passim

Fitzgerald v. Magic Valley Evangelical

Church, Inc. (In re Hodge), 200 B.R.

884 (Bankr. D. Idaho 1996) ........... 17

Flemming v. Nestor, 363 U.S. 603 (1960) ....... 28

Friend v. Kolodzieczak, 923 F. 2d 126

GR Ga See ch. he oa eh eee ree 12

Greater New York Health Care Facilities v.

Axelrod, 770 F. Supp. 183 (S.D.N.Y.

UGGD 0's 6.4 0s 2 ORR ee 12, 27

Hutchison v. Luddy, 414 Pa. Super. 138, 606

Rn Gee Ce hea a eee ee ees 13

vii

TABLE OF AUTHORITIES—Continued

In re Tessier, 190 B.R. 396 (Bankr. D. Mont.

ae ee i SNS oak « 17

Late Corp. of Church of Jesus Christ of

Latter-Day Saints v. United States, 136

a 6 TS bo Wek 6 Wie bc 2 ee 10

Minnesota v. Hershberger, 444 N.W.2d 282

(Minn. 1989), vacated and remanded,

495 U.S. 901 (1990), upheld on state

law grounds, 462 N.W.2d 393 (Minn.

SE Sek ae ba ee lale We bees «0 © 6 14, 27

Mockaitis v. Harcleroad, 938 F. Supp. 1516

ON BE ee ee 13

Montgomery v. County of Clinton, 743 F.

Supp. 1253 (W.D. Mich. 1990), aff'd,

940 F.2d 661 (6th Cir. 1991)........ 15, 27

Morris v. Midway So. Baptist Church (In re

Newman), 1996 WL 711319 (D. Kan.,

eo ee 5 er 17

Rectors, Wardens, & Members of Vestry of

Saint Bartholomew's Church v. City of

New York, 914 F.2d 348 (2d Cir.

1990), cert. denied, 499 U.S. 905

CD rw Oe bon de db Wate ewe 0% 15, 25

Reynolds v. United States, 98 U.S. 145

viii

TABLE OF AUTHORITIES—Continued

St. Agnes Hosp. v. Riddick, 748 F. Supp. 319

Gi. Gs SON 65 8 os eee ens

Smith v. Fair Employment & Housing

Comm'n, 51 Cal. Rptr. 2d 700 (Cal.

1996), cert. pending, No. 96-31 (July

eee. 5 Pee he ORE ewe bes

Swanner v. Anchorage Equal Rights Comm'n,

874 P.2d 274 (Alaska), cert. denied,

L359 &. Ch Ge Gee. Fe ts

Swanner v. Anchorage Equal Rights Comm'n,

115 S. Ce. 460 (1994) .........

United States v. O’Brien, 391 U.S. 367

GeGED savas wae eod 2a es 3S

United States v. Philadelphia Yearly Meeting

of Religious Soc'y of Friends, 753 F.

Supp. 1300 (E.D. Pa. 1990) .....

Walker v. First Presbyterian Church, 22 Fair

Empl. Prac. Cas. 762 (Cal. Super. Ct.

0 Ge re peer Ly ee

Walz v. Tax Comm’n, 397 U.S. 664 (1970)

Wisconsin v. Yoder, 406 U.S. 205 (1972) . .

You Vang Yang v. Sturner, 750 F. Supp. 558

8 8 re ra

TABLE OF AUTHORITIES—Continued

Page

Statutes:

Edmunds-Tucker Act, 24 Stat. 635 (1887) ........ 9

Religious Freedom Restoration Act, 42

ae UE Seo 2 so vise b:5's be passim

Miscellaneous:

1996 Yearbook of American and Canadian

EE Gah a Pe ab kas Ga wd bb ee se 3

JAMES B. ALLEN & GLEN M. LEONARD,

THE STORY OF THE LATTER-DAY

EE 9 ota s PUES yg ie oe a woe 5, 6

LEONARD J. ARRINGTON & DAVIS BITTON,

THE MORMON’ EXPERIENCE: A

HISTORY OF THE LATTER-DAY SAINTS

es ik a be 2 AW 6 WS Ee 6

STEPHEN L. CARTER, THE CULTURE OF

Se ae 22

Church of Jesus Christ of Latter-day Saints,

Doctrine & Covenants 134:7 (1981) ........ 5

Church of Jesus Christ of Latter-day Saints,

Pearl of Great Price, Article of Faith

i! Bhd Ge ea yn arate aoa 3

TABLE OF AUTHORITIES—Continued

CONG. GLOBE, 39th Cong., Ist Sess. (1865) ....... 8

CONG. GLOBE, 42d Cong., Ist Sess. (1871) ....... 8

Gregory Curtis, The Church on the Hill,

TEXAS MONTHLY 9 (Dec. 1996) ......... 20

Digest of the Laws Relative to Slaves and

People of Free Colour in the State of

Louisiana (1835), reprinted in 2

STATUTES ON SLAVERY: THE

PAMPHLET LITERATURE 47 (Paul

OF ee eee ee 7

Richard F. Duncan, Who Wants to Stop the

Church: Homosexual Rights

Legislation, Public Policy, and

Religious Freedom, 69 NOTRE DAME

Se SP eee eT ere eee 21

W. Cole Durham, Jr. & Alexander Dushku,

Traditionalism, Secularism, and the

Transformative Dimensions of

Religious Institutions, 1993 B.Y.U. L.

FPP rere ee ee eee ee 21

EDWIN BROWN FIRMAGE & RICHARD COLLIN

MANGRUM, ZION IN THE COURTS: A

LEGAL HISTORY OF THE CHURCH OF

Jesus CHRIST OF LATTER-DAY

SAINTS, 1830-1900 (1988) .............. 9

eee

TABLE OF AUTHORITIES—Continued

Edward McGlynn Gaffney, Jr., Hostility to

Religion, American Style, 42 DEPAUL

Se & Ff). eee

Frederick Mark Gedicks, Public Life and

Hostility to Religion, 78 VA. L. REV.

Ge ee bw ob ole 6a S40 wa

James C. Geoly & Kevin R. Gustafson,

Religious Liberty and Fair Housing:

Must a Landlord Rent Against His

Conscience?, 29 J. MARSHALL L.

EEE o'occ weveevns

JAMES DAVISON HUNTER, CULTURE WARS

SG Wis. 600 2 oe w ble 008 Oe

ARTHUR FREDERICK IDE, EVANGELICAL

TERRORISM: CENSORSHIP, FALWELL,

ROBERTSON & THE SEAMY SIDE OF

CHRISTIAN FUNDAMENTALISM (1986)

KENDALL COUNTY HISTORICAL COMM’N, A

HISTORY OF KENDALL COUNTY TEXAS

as ae ae eee

Kurt T. Lash, The Second Adoption of the

Free Exercise Clause: Religous

Exemptions under the Fourteenth

Amendment, 88 Nw. U. L. REV. 1106

CO awe « bend thes

xii

TABLE OF AUTHORITIES—Continued

Douglas Laycock, The Remnants of Free

Exercise, 1990 Sup. CT. REV. 1 ...... 18, 22

Douglas Laycock & Oliver S. Thomas,

Interpreting the Religous Freedom

Restoration Act, 73 TEX. L. REV. 209

CE o"6 oa te dete uae sd Pewee re eee 11

Rex E. Lee, The Religious Freedom

Restoration Act: Legislative Choice

and Judicial Review, 1993 B.Y.U. L.

BG. TE ws FHT e's ENR Ow HEYA 11, 20

STEPHEN C. LESUEUR, THE 1838 MORMON

WAR IN MISSOURI (1987) .............. 6

re er ee er eee ee 17

James Madison, Memorial and Remonstrance

Against Religious Assessments,

Paragraph 1 (1785), reprinted in

Appendix to Everson v. Board of

pe Ss a err 2

PEE Be WES 0-05-00 6 alee 8 oe Oe 18

DANIEL R. MANDELKER, LAND USE LAW §

Be Gee, See: 2 OE Re a oc OR 23

Michael W. McConnell, “God is Dead and

We Have Killed Him”: Freedom of

Religion in the Post-Modern Age, 1993

ee ee Se Pe PP Sere ee 22

Mer SR ee ee Re

xiii

TABLE OF AUTHORITIES—Continued

Page

Note, Developments in the Law—Equal

Protection, 82 HARV. L. REV. 1065

Reiss v pc cee c ees. 29

Religious Freedom Restoration Act: Hearings

before the Senate Comm. on the

Judiciary, 102d Cong., 2d Sess.

(1992) ccc cece cere eer eccces 13, 19

Religious Freedom Restoration Act of 1990:

Hearings before the Subcomm. on Civil

and Constitutional Rights of the House

Comm. on the Judiciary, 101st Cong.,

pO) rere 12, 13

Religious Freedom Restoration Act of 1991:

Hearings before the Subcomm. on Civil

and Constitutional Rights of the House

Comm. on the Judiciary, 102d Cong.,

Sa re 11, 14

Religious Freedom Restoration Act of 1991:

Hearings on H.R. 2797 before the

Subcomm. on Civil and Constitutional

Rights of the Senate Comm. on the

Judiciary, 102d Cong., 2d Sess.

EI eee 3

Antonin Scalia, Judicial Deference to

Administrative Interpretations of Law,

EE ee eee 23, 24

xiv

TABLE OF AUTHORITIES—Continued

ANSON SHUPE & DAVID BROMLEY, THE NEW

,, FP Ry es 22

JOSEPH SMITH, HISTORY OF THE CHURCH OF

JESUS CHRIST OF LATTER-DAY SAINTS

(ED dono WE Ee ele Sh dein seb cwse ee. 6

BRIEF OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS AS

INTEREST OF THE AMICUS CURIAE

The Church of Jesus Christ of Latter-day Saints (often

referred to as the “LDS Church” or “Mormon Church”) is

a Christian denomination with over 9,000,000 members

worldwide. Slightly less than half the members of the

Church reside in the United States. Because of continuing

rapid growth, the Church has an active program for con-

structing temples, chapels, and various other structures that

further the Church’s religious mission. For this reason, the

Church constantly encounters the kinds of land use issues at

stake in the present case. While most government officials

work with the Church in good faith, the pressures of hostility

toward religion do sometimes operate behind the facade of

ostensibly neutral land use regulations. In the aftermath of

this Court’s decision in Employment Division v. Smith, 494

U.S. 872 (1990), the Religious Freedom Restoration Act

(“RFRA”) plays a vital role in assuring that land use

regulations are administered in a manner that is consistent

with genuine respect for religious freedom.

With the constitutionality of RFRA at stake, however,

the Church’s interest in the present case goes well beyond

these important land use questions to the very core of its

religious beliefs. The Church’s 11th Article of Faith

declares, “We claim the privilege of worshiping Almighty

God according to the dictates of our own conscience, and

allow all men the same privilege, let them worship how,

where, or what they may.” This tenet springs from an even

deeper belief in the sanctity of conscience and the free

agency of human beings. Like the framers of the federal

* The parties have stipulated to their consent to the filing of this

brief. The consent of the Intervenor the United States of America

has been lodged with the Clerk.

Constitution, the LDS Church proclaims that the right to free

exercise of religion is an inalienable right not dependent for

its existence on the action of any secular sovereign—whether

state or federal, domestic or foreign. In the words of James

Madison, the free exercise right is inalienable because it

reflects “a duty towards the Creator,” which “is precedent

both in order of time and degree of obligation, to the claims

of Civil Society.” James Madison, Memorial and

Remonstrance Against Religious Assessments, Paragraph 1

(1785), reprinted in Appendix to Everson v. Board of Educ..,

330 U.S. 1, 63 (1947). The Church believes, as has been

argued in other briefs, that the Constitution affords Congress

adequate power to enact RFRA, and that RFRA is vital to

protecting our inalienable first freedom from state and federal

encroachments.

When the scope of First Amendment free exercise

protections was narrowed by Smith, the Church felt pro-

foundly threatened by the array of potential encroachments

on religious freedom that this decision opened up, and

accordingly joined the broad coalition of churches and other

organizations that supported passage of RFRA in 1993 (“the

Coalition”). We continue to support and actively participate

in the ongoing efforts of the Coalition to defend RFRA

against its detractors. Since the Church continues to support

the efforts of the Coalition, including its brief in this case,

there is no need for us to repeat the main arguments made

there confirming that RFRA does not establish religion, that

it does not violate separation of powers or federalism

principles, and that Section 5 of the Fourteenth Amendment

grants Congress sufficient power to enact RFRA. Rather,

our aim is to emphasize the vital significance of RFRA for

minority religious traditions such as ours, and to highlight

the historical and contemporary considerations that warrant

the Congressional remedy it provides. As Elder Dallin H.

Oaks of the Quorum of the Twelve Apostles of the Church

stated at the time of the Congressional hearings on RFRA,

the LDS Church is “looking to the larger good and using the

experience of our faith in history as a motivation to lend our

voice to the protection of smaller groups against future

incursion on their freedom.”’

SUMMARY OF ARGUMENT

The historical experience of the Church of Jesus Christ

of Latter-day Saints underscores the importance of providing

the kinds of protection for religious liberty that RFRA

affords. Although the LDS Church is now the seventh

denomination in the United States,’ its experience

outside of Utah has always been that of a minority religion.

Some of the darkest pages of the history of religious persecu-

tion in America chronicle the treatment of Mormons, as they

were driven in the nineteenth century from Ohio to Missouri

to Illinois and finally to the valleys of the Rocky Mountains.

While the Church believes “in obeying, honoring, and

sustaining the law,”° it is also deeply conscious that laws

and the officials who apply them sometimes operate in ways

that violate religious freedom. Many of the landmarks of

persecution in LDS history were carried out under the cloak

of “neutral” and “general” laws. Not surprisingly, then, the

Church has long believed that just government has a compel-

ling interest in safeguarding religious freedom and making

certain that when state encroachments on that value are

permitted, they must be justified on the basis of “interests of

the highest order and those not otherwise served.” Wisconsin

' Religious Freedom Restoration Act of 1991: Hearings on H.R.

2797 before the Subcomm. on Civil and Constitutional Rights of

the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. 57

(1992).

2 1996 Yearbook of American and Canadian Churches, quoted

in Salt Lake Trib., May 25, 1996.

> Church of Jesus Christ of Latter-day Saints, Pear! of Great

Price, Article of Faith 12, at 61 (1981).

v. Yoder, 406 U.S. 205, 215 (1972). The Church’s experi-

ence over the past 175 years has confirmed that the legiti-

mate free exercise rights of a religious minority cannot be

adequately protected or enforced without the functional

equivalent of the compelling state interest/least restrictive

alternative test that crystallized in this Court’s free exercise

jurisprudence in the decades before the decision of Employ-

ment Division v. Smith.

The historical religious persecution evidenced by LDS

- history is reemerging today, albeit in subtler forms that do

not generally display the brutality of the past. Churches and

individual believers face an ever-proliferating range of

practical problems in the aftermath of Smith. Ranging from

questions dealing with abortion and the beginning of life to

questions of treatment of the dead, and touching on virtually

every aspect of religious life in between, these practical

problems have made the protections afforded by RFRA all

the more significant.

One reason RFRA is so important is that there are

structural biases in the modern regulatory state that system-

atically undervalue religious freedom rights. In fact, the

comprehensive study of zoning cases collected in the Appen-

dix shows that religious minorities have suffered dispropor-

tionately disadvantageous treatment as a result of these

structural biases at the initial decision stage. Congress has

authority to pass legislation to remedy the resulting system-

atic under-protection of free exercise values.

ARGUMENT

I. THE HISTORICAL EXPERIENCE OF THE

MORMON CHURCH UNDERSCORES THE NEED

FOR RFRA.

We believe that rulers, states, and governments

have a right, and are bound to enact laws for

the protection of all citizens in the free exercise

of their religious belief * * *.

-Doctrine & Covenants 134:7 (1981).

Much of the early history of the Mormon Church is a

litany of persecution. Our aim here is not to bemoan this

extensive history, but to identify a number of salient episodes

that have forged the Church's conviction that RFRA’s

protections are vital to genuine protection of religious

freedom. These episodes help document some of the many

ways in which facially neutral laws were used and abused in

the course of what was unquestionably one of the worst

religious persecutions in U.S. history.

A. The Persecutions of Mormons in Missouri in the

Late 1830’s Exemplify Violations of Religious

Rights that the Fourteenth Amendment was

Designed to Remedy.

1. The Absence of Federal Remedies Meant

That No Relief Was Available for the Perse-

cutions of Mormons in Missouri.

In November, 1839, and again in February, 1840,

Mormon leaders met with President Martin Van Buren to

seek relief for persecutions that church members had suffered

in Missouri. JAMES B. ALLEN & GLEN M. LEONARD, THE

STORY OF THE LATTER-DAY SAINTS 144 (1976). After being

pillaged, massacred, and deprived of their property, in many

cases as a direct result of state action, the Mormons were

ultimately forced out of Missouri under threat of an order

signed by Missouri’s governor directing that “[t}he Mormons

must be treated as enemies and must be exterminated or

driven from the state.” Jd. at 127 (emphasis added); see id.

at 81-93, 104-110, 120-130; LEONARD J. ARRINGTON &

DAVIS BITTON, THE MORMON EXPERIENCE: A HISTORY OF

THE LATTER-DAY SAINTS 44-45 (1979); STEPHEN C.

LESUEUR, THE 1838 MORMON WAR IN Missouri (1987).

Church leaders turned to the President when all state-level

efforts to find redress had been exhausted. His response was

terse: “Gentleman, your cause is just, but I can do nothing

for you.”* The Fourteenth Amendment and RFRA, which

enforces its mandate, was designed at least in part to fill this

constitutional gap.

As a matter of constitutional law at the time, President

Van Buren’s statement was probably accurate. After all, the

Supreme Court had held just a few years earlier that the Bill

of Rights was not applicable to the states and operated only

as a constraint on federal power. See Barron v. Baltimore,

32 U.S. (7 Pet.) 243 (1833). Thus, neither the Free Exer-

cise Clause nor the Takings Clause provided any basis for

relief. This remained true a few years later, when persecu-

tions culminated in the murder of Joseph Smith in 1844 by

discharged state militiamen and the expulsion of Church

members from Illinois under brutal winter conditions in

1845-46. ALLEN & LEONARD, supra, at 193-197, 220-233.

Never again should such religious persecution be left without

legal remedy.

2. The Fourteenth Amendment Was Designed in

Part to Remedy Antebellum Incursions on the

Free Exercise of Religious Minorities.

The same constitutional gap that barred relief to the early

Mormons contributed contemporaneously to massive infringe-

ments of the religious liberty of slaves and religiously

* JOSEPH SMITH, HISTORY OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS 4:80, 5:393 (1949).

motivated abolitionists in the antebellum South. What is too

often forgotten in reviewing the history of the Fourteenth

Amendment is that its framers were concerned not only with

guaranteeing the secular civil rights of the former slaves, but

also with dismantling a variety of legal abuses that

encroached on the free exercise rights of both the former

slaves and those who opposed the institution of slavery.’

Many of these abuses took the form of neutral, general laws,

but their impact on free exercise was severe. Louisiana went

so far as to make it a crime, punishable by death, to “write,

print, publish or distribute” abolitionist literature, most of

which was written out of religious conviction. Black

religious assemblies were heavily regulated, and curfew

laws, while more neutral in tenor, drastically curtailed the

possibility of black religious gatherings at night.’ Generally

applicable laws prohibiting slaves from being taught to read

prevented slaves from reading the Bible.*

By the time the Fourteenth Amendment was framed, the

fact that Mormons had been denied federal relief for intense

persecution was largely forgotten, but anti-slavery forces

were acutely aware that the absence of federal relief had

* See Kurt T. Lash, The Second Adoption of the Free Exercise

Clause: Religious Exemptions under the Fourteenth Amendment, 88

Nw. U. L. REV. 1106, 1131-37 (1994).

* See Digest of the Laws Relative to Slaves and People of Free

Colour in the State of Louisiana (1835), reprinted in 2 STATUTES

ON SLAVERY: THE PAMPHLET LITERATURE 47, 68 (Paul Finkel-

were punishable by death or imprisonment.

” See Lash, supra note 5, at 1134-35 & nn.133-36 (collecting

sources).

* Id. at 1135 & nn. 137-38 (collecting sources).

resulted in massive infractions of religious freedom in the

antebellum South. For this reason, the free exercise of

religion was clearly understood to be one of the “privileges

and immunities of citizens of the United States” protected by

Section 1 of the Fourteenth Amendment,’ and, accordingly,

Section 5 was understood as granting Congress power to

remedy encroachments on religious freedom that had grown

up in the absence of a federal remedy. The fight against

slavery and against all the collateral structures that evolved

to defend that institution sensitized the framers of the

Fourteenth Amendment to the need for federal remedies

capable of subjecting the facade of neutral, general laws

woven by an entrenched majority to searching scrutiny when

religious and other fundamental rights are at stake. The

restructuring of American federalism that emerged from the

cauldron of the Civil War was not accidental, and the new

protection of the “privileges and immunities of citizens” was

intended to fill a gap that had allowed endless suffering to

minority religious groups.

B. The Use and Abuse of Ostensibly Neutral and

General Laws Resulted in Serious Incursions on

Religious Freedom in Territorial Utah.

From the 1850's until shortly before Utah achieved

statehood in 1896, the federal government engaged in a

* Senator Jacob Howard, commenting on the content of the

“privileges and immunities” clause, indicated that it included “the

personal rights guaranteed and secured by the first eight amend-

ments to the Constitution.” CONG. GLOBE, 39th Cong., Ist Sess.

2765 (1865). In the Forty-Second Congress, Henry L. Dawes

stated that the “privileges and immunities” clause “secured the free

exercise of * * * religious belief.” CONG. GLOBE, 42d Cong., ist

Sess. 475 (1871). See also Lash, supra note 5, at 1146-49 & nn.

181-95 (collecting sources confirming that Fourteenth Amendment

framers believed the “privileges and immunities” clause embraced

free exercise of religion).

protracted and steadily intensifying conflict with the LDS

Church that nearly ended in the Church’s destruction."° In

addition to directly outlawing the practice of certain funda-

mental doctrines of the Church," the federal government

passed a series of facially neutral laws that operated to

increase federal pressure on the Church. For example,

Statutes were passed that effectively deprived Mormons of

jury trial rights. See, e.g., Clawson v. United States, 114

U.S. 477 (1885). In 1887, the Edmunds-Tucker Act had the

effect of dismantling inheritance laws, overriding spousal

immunity, and restricting the right to vote. 24 Stat. 635

(1887). In many areas, what began as neutral legislation was

notched progressively tighter as persecution progressed. For

example, in 1870, Utah’s territorial legislature granted

women the right to vote. But in 1887, the Edmunds-Tucker

Act provided that “it shall not be lawful for any female to

vote at any election hereafter held in the Territory.” 24 Stat.

639, § 20. As the persecution reached a crescendo, territori-

al legislation was passed barring Mormons (regardless of

sex) from voting and holding public office. Mere adherence

to the Mormon faith was deemed sufficient to sustain

disenfranchisement. See Davis v. Beason, 133 U.S. 333

(1890).

Not satisfied with these provisions, Congress passed

more blatantly targeted provisions. At the height of the

conflict in 1887, Congress took the outrageous and unprece-

MANGRUM, ZION IN THE COURTS: A LEGAL HISTORY OF THE

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, 1830-1900, at

125-260 (1988).

'' The question of plural marriage, of course, was addressed

in Reynolds v. United States, 98 U.S. 145 (1878). The practice of

plural marriage was abandoned by the Church in 1890, and in

filing this amicus brief the Church has no interest in revisiting this

issue.

dented step of eliminating the Church’s legal existence by

revoking its corporate charter and authorizing federal

receivers to assume ownership of virtually ali of the

Church’s property and other assets, including its most sacred

houses of worship, temples in Logan, Manti, St. George, and

Salt Lake City. See Late Corp. of Church of Jesus Christ of

Latter-Day Saints v. United States, 136 U.S. 1 (1890).

As the Mormon experience demonstrates, a creative

legislative body has little difficulty in fashioning facially

neutral laws or administrative devices capable of imposing

substantial burdens on a religious community. Congress may

reasonably determine that the only effective way to ferret out

illegitimate use of this potential is to subject state action that

imposes substantial burdens on religion to searching scrutiny.

That is what RFRA does.

Il. WITHOUT RFRA, THE TYPES OF OVERT AND

COVERT HOSTILITY TOWARD MINORITY

RELIGIOUS FAITHS THAT HAVE AFFLICTED

MORMONS ARE DESTINED TO IMPOSE IMPER-

MISSIBLE BURDENS ON A WIDE ARRAY OF

RELIGIOUS PRACTICES.

Under Smith, “neutral” laws of “general applicability”

are entitled to no special scrutiny under the Free Exercise

Clause. 494 U.S. at 882. As long as legislation and/or

administrative regulations are not specifically aimed at (or

are not overtly hostile to) religion and apply across a

relatively wide range of non-religious conduct, Smith

assumes that religious liberty either will not be unduly

trammeled or will be accommodated by exemptions crafted

during the lawmaking process. /d. at 890. This logic is

open to question. “There is nothing talismanic about neutral

laws of general applicability * * * for laws neutral toward

religion can coerce a person to violate his religious con-

science or intrude upon his religious duties just as effectively

as laws aimed at religion.” Jd. at 901 (O’Connor, J.,

concurring in the judgment).

TS TT

History, in fact, demonstrates that “neutral” and

“general” laws are often inimical to religious liberty.

“Facially neutral laws of general application — the kind that

raise no constitutional issue after Smith — were central to

some of this country’s worst religious persecutions. Both the

polygamy law that underlay much of the Mormon persecu-

tion, and the flag salute law invoked against Jehovah’s

Witnesses, were facially neutral, generally applicable

laws.”'"* Moreover, “[iJf past is prologue, the forces of

local, State, and Federal governmental power, now freed

from the compelling governmental interest test [by Smith],

will increasingly interfere with the free exercise of reli-

gion.” “The reason, quite simply, is that few laws that in

fact inhibit the free exercise of religion are specifically aimed

at religious practices.” Rex E. Lee, The Religious Freedom

Restoration Act: Legislative Choice and Judicial Review,

1993 B.Y.U. L. REV. 73, 86-87.

A sampling of contemporary post-Smith cases demon-

strates that “neutral” laws of “general applicability” now

dramatically intrude upon virtually every aspect of religious

life. As a result of “neutral” and “general” laws, a Catholic

hospital has been denied accreditation based on its refusal to

instruct its residents on the performance of abortions notwith-

standing strong religious objections to the taking of unborn

life,"* a religious mission for the homeless operated by

' Douglas Laycock & Oliver S. Thomas, Interpreting the

Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 213

(1994) (footnote omitted).

° Religious Freedom Restoration Act of 1991: Hearings before

the Subcomm. on Civil and Constitutional Rights of the House

Comm. on the Judiciary, 102d Cong., 2d Sess. at 24 (1992)

(statement of Elder Dallin H. Oaks, Quorum of the Twelve

Apostles, Church of Jesus Christ of Latter-day Saints).

Id. at 157 (statement of Edward Gaffney, Dean and Profes-

Mother Teresa has been shut down because it was located on

the second floor of a building without an elevator,” and

children have been prevented from volunteering to care for

their elderly parents housed in government regulated nursing

homes.’ Individuals in government custody have been

denied access to religious paraphernalia without any inquiry

into whether accommodation of the individual’s sincere

religious beliefs would impose any significant official burden

at all.”

In fact, the potential incursion of facially “neutral” and

“generally applicable” laws upon religious belief and practice

is breathtaking. As noted in the Senate Report accompanying

the passage of RFRA, the Smith standard places “all religious

activity * * * at risk.” Religious Freedom Restoration Act of

1990: Hearings before the Subcomm. on Civil and Constitu-

sor of Law, Valparaiso University School of Law (citing St. Agnes

Hosp. v. Riddick, 748 F. Supp. 319 (D. Md. 1990)); see id.

(“Even on a belief so deeply and widely held as conscientious

objection to the performance of an abortion, State officials ignored

the [Supreme] Court’s suggestion that it is desirable for the

political branch to provide free exercise exemptions. And the

courts, after Smith, thought it perilous to provide a remedy.”).

'S Jd. at 149.

'© In Greater New York Health Care Facilities v. Axelrod, 770

F. Supp. 183, 187 (S.D.N.Y. 1991), the district court summarily

rejected challenges to health regulations that limited the service of

volunteers in nursing homes despite the fact that, for some of the

volunteers, the services represented their fulfillment of the Fifth

Commandment obligation to honor one’s father and mother.

" In Friend v. Kolodzieczak, 923 F.2d 126, 128 n.1 (9th Cir.

1991), the court upheld a prison regulation forbidding inmates

from possessing rosaries and scapulars in their cells. The court in

fact went so far as to assert that the denial did not even implicate

a constitutional right.

tional Rights of the House Comm. on the Judiciary, 10\st

Cong., 2d Sess. 23 (1990) (statement of Rep. Lamar

Smith).'* Even the long-established priest/penitent privilege

is eroding.'? Loyalty oaths may once again be imposed on

government employees notwithstanding sincere religious

objection.” And “neutral” and “generally applicable” laws

might well force churches to hire homosexuals despite

'§ Accord Religious Freedom Restoration Act: Hearings before

the Senate Comm. on the Judiciary, 102d Cong., 2d Sess. 44

(1992) (statement of Rev. Oliver S. Thomas, Baptist Joint

Committee on Public Affairs and the American Jewish Committee)

(“Since Smith was decided, governments throughout the U.S. have

run roughshod over religious conviction. Churches have been

zoned even out of commercial areas. * * * In time, every religion

in America will suffer.”); Religious Freedom Restoration Act of

1990: Hearings before the Subcomm. on Civil and Constitutional

Rights of the House Comm. on the Judiciary, 10ist Cong., 2d

Sess. 39-40 (1990) (statement of Rev. Robert P. Dugan, Jr.,

Director, Office of Public Affairs, National Association of

Evangelicals) (“Must a Catholic church get permission from a

landmarks commission before it can relocate its altar? Can

orthodox Jewish basketball players be excluded from interscholas-

tic competition because their religious belief requires them to wear

yarmulkes? Are certain evangelical denominations going to be

forced to ordain female ministers, or the Catholic church to ordain

female priests? * * * Are school children, contrary to their

religious beliefs, to be forced to salute the flag?”).

'% See, e.g., Mockaitis v. Harcleroad, 938 F. Supp. 1516 (D.

Or. 1996) (court refuses to destroy secret tape-recording by police

of priest/penitent conversation); Hutchison v. Luddy, 414 Pa.

Super. 138, 606 A.2d 905 (1992) (allowing discovery of church’s

sensitive confidential files even though the records were compiled

and archived pursuant to canon law).

® See Bessard v. California Community Colleges, 867 F. Supp.

1454 (E.D. Cal. 1994).

contrary (and deeply held) religious beliefs.”

Of course, not every post-Smith intrusion upon religious

belief and practice is likely to provoke a collective cry of

alarm. Some religious liberties infringed by “neutral” and

“generally applicable” laws (such as the right of Old Order

Amish to refuse to display a fluorescent orange triangle on

a horse-drawn buggy” or of Sikhs to decline to wear a

motorcycle helmet because of a religious obligation to wear

a turban”) seem rather prosaic in a pervasively secular

society. The Free Exercise Clause exists, however, precisely

because even prosaic violations of conscience are deeply felt.

“The Constitution is to protect unpopular ideas, not popular

ideas."“ And many “neutral,” “generally applicable”

assaults upon religious practice are significant indeed.

For example, in You Vang Yang v. Sturner, 750 F. Supp.

558 (D.R.I. 1990), the district court held that an unnecessary

autopsy on a young Hmong man did not constitute a violation

of the Free Exercise Clause, despite the religiously-based

belief of his family that the autopsy condemned the spirit of

the deceased. Jd. at 560. The court had originally ruled in

2! See, e.g., Walker v. First Presbyterian Church, 22 Fair

Empl. Prac. Cas. 762 (Cal. Super. Ct. 1980) (church escaped

liability for firing a homosexual only because the court applied the

pre-Smith “compelling interest” test).

2 See Minnesota v. Hershberger, 444 _N.W.2d 282 (Minn.

1989), vacated and remanded, 495 U.S. 901 (1990), upheld on

State law grounds, 462 N.W.2d 393 (Minn. 1990).

® See Buhl v. Hannigan, 20 Cal. Rptr. 2d 740 (Ct. App.

1993).

* See Religious Freedom Restoration Act of 1991: Hearings

before the Subcomm. on Civil and Constitutional Rights of the

House Comm. on the Judiciary, 102d Cong., 2d Sess. (1992)

(Statement of Rep. Washington).

favor of the Yangs, but — following Smith — felt compelled

to reverse its earlier ruling. The court nevertheless

expressed its deep regret in applying the neutral, generally

applicable autopsy law to the facts of the case:

My regret stems from the fact that I have the deepest

sympathy for the Yangs. I was moved by their

tearful outburst in the courtroom during the hearing

on damages. I have seldom, in twenty-four years on

the bench, seen such a sincere instance of emotion

displayed. I could not help but also notice the

reaction of the large number of Hmongs who had

gathered to witness the hearing. Their silent tears

shed in the still courtroom as they heard the Yangs’

testimony provided stark support for the depth of the

Yangs’ grief.

Id. at 558.*

Following Smith, government at all levels is busily

dictating the outcome of deeply felt religious issues. State

and local governments dramatically limit the use of property

held for religious purposes. States and municipalities

require landlords to engage in rental practices that the

% See also Montgomery v. County of Clinton, 743 F. Supp.

1253 (W.D. Mich. 1990), aff'd, 940 F.2d 661 (6th Cir. 1991)

(compelling autopsy despite contrary, deeply felt conservative

Jewish beliefs).

% See, e.g., Rectors, Wardens & Members of Vestry of Saint

Bartholomew’s Church v. City of New York, 914 F.2d 348, 354-55

(2d Cir. 1990), cert. denied, 499 U.S. 905 (1991); Cornerstone

Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991)

(rejecting Free Exercise challenge to zoning law that excluded

churches from commercial zones while permitting secular not-for-

profit organizations to locate in such areas but remanding for equal

protection clause claim).

landlords sincerely believe to be sinful.?’ Still other “neu-

tral” laws have transformed religious societies from havens

and sanctuaries into government enforcement agencies.”

7” See generally James C. Geoly & Kevin R. Gustafson,

Religious Liberty and Fair Housing: Must a Landlord Rent Against

His Conscience?, 29 J. MARSHALL L. REV. 455 (1996). In

Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 278-

80 (Alaska), cert. denied, 115 S. Ct. 460 (1994), for example, a

landlord’s refusal to rent to an unmarried couple violated state fair

housing law and could not be excused on the ground that the

landlord sincerely believed that his rental of the apartment would

facilitate fornication and, therefore, be sinful). But of. Swanner v.

Anchorage Equal Rights Comm’n, 115 S. Ct. 460, 461-462 (1994)

(Thomas, J., dissenting) (asserting that the Alaska Supreme Court

improperly raised the value of fair housing over the fundamental

right to free exercise of religious belief). See also Smith v. Fair

Employment & Housing Comm'n, 51 Cal. Rptr. 2d 700, 709, 719

(Cal. 1996), cert. pending, No. 96-31 (July 8, 1996) (religious

landlord could not discriminate against unmarried couples regard-

less of the religious beliefs of the landlord). Other state courts

have protected religious landlords under state constitutional

provisions. See, e.g., Attorney General v. Desilets, 636 N.E.2d

233 (Mass. 1994) (religiously motivated landlord exempted from

fair housing laws regarding marital status on the basis of state

religious liberty provisions); Cooper v. French, 460 N.W.2d 2

(Minn. 1990) (same).

* See, ¢.g., United States v. Philadelphia Yearly Meeting of

Religious Soc'y of Friends, 753 F. Supp. 1300 (E.D. Pa. 1990)

(compelling the Society of Friends, commonly known as “the

Quakers,” to enforce an IRS levy against two employee-members

who conscientiously refused to pay the military portion of their

federal taxes despite the Friends’ assertion that the IRS could not

compel the Society to violate the religious beliefs of members by

acting as an enforcement arm of the government). The oddity of

the result in this case, however, did not go unnoticed by the

district court. In ruling for the IRS, the court apologetically

wrote:

The current legal regime, in fact, threatens not only the

sacred beliefs of church members, but the financial stability

of organized religion itself. Increasing numbers of bank-

ruptcy trustees and private creditors are attempting to use

federal bankruptcy and state fraudulent conveyance laws to

recover ordinary course contributions made to churches by

their members, even absent any badges of fraud.” Coerced

recovery of honestly donated tithing monies and other

contributions constitutes a gross abridgement of religious

liberty. The practice of tithing is deeply rooted in the

religious traditions of this nation and is essential for salvation

in many religions — including the LDS faith. First men-

tioned in the Pentateuch, see Leviticus 27:30-32, tithing is

more than a temporal rule of financial support for churches.

It is a spiritual obligation to God, with associated blessings

for the faithful and punishments for the disobedient.

It is ironic that here in Peansylvania, the woods to which

Penn led the * * * Friends to enjoy the blessings of

religious liberty, neither the Constitution nor its Bill of

Rights protects the policy of that Society not to coerce or

violate the consciences of its employees and members

with respect to their religious principles, or to act as an

agent for our government in doing so.

Id. at 1306. See also American Friends Serv. Comm. Corp. v.

Thornburgh, 961 F.2d 1405 (9th Cir. 1990) (although Quaker

beliefs require adherents to provide employment even to illegal

immigrants, the sanctions established by the Immigration Reform

and Control Act can be applied to a Quaker charitable organiza-

tion).

® See, e.g., Christians v. Crystal Evangelical Free Church, 82

F.3d 1407 (8th Cir. 1996), cert. pending, No. 96-437; Morris v.

Midway So. Baptist Church (In re Newman), 1996 WL 711319 (D.

Kan., Nov. 26, 1996); Fitzgerald v. Magic Valley Evangelical Free

Church, Inc. (In re Hodge), 200 B.R. 884 (Bankr. D. Idaho

1996); In re Tessier, 190 B.R. 396 (Bankr. D. Mont. 1995).

For I am the Lord * * *. Yet ye have robbed me.

But ye say, Wherein have we robbed thee? In tithes

and offerings. Ye are cursed with a curse: for ye

have robbed me * * *. Bring ye all the tithes into

the storehouse that there may be meat in mine house,

and prove me now herewith, saith the Lord of hosts,

if I will not open you the windows of heaven, and

pour you out a blessing, that there shall not be room

enough to receive it. And I will rebuke the devourer

for your sakes * * *.

Malachi 3:6, 8-11. As a result, the use of government

resources to confiscate an honestly given tithe is a substantial

disruption of an individual’s religious exercise.

Tithing recovery imposes substantial burdens, not only

upon believers, but on churches. Without legal protection,

it will become a checklist item in every individual bank-

ruptcy to demand return of any contributions to religious

organizations, and churches will become the most common

source of partial payment in consumer bankruptcies. This

liability will impose heavy (perhaps crushing) financial

burdens on churches, especially those with limited resources.

Time and again churches will be compelled to defend large

and small contributions alike against private creditors and

bankruptcy trustees, the widow’s mite going to pay lawyers

instead of feeding the poor and constructing houses of

worship. Churches will be forced to repay long-spent

contributions from years past, disrupting budgets and

programs, and occasionally to suffer the sale of religious

property on the courthouse steps.

The foregoing discussion amply demonstrates that “[t]he

connection between religious persecution and formal neutral-

ity interpretations of the Free Exercise Clause is not merely

theoretical. It is historical.” And what is at stake is

* Douglas Laycock, The Remnants of Free Exercise, 1990

substantial. As spokespeople for the American Civil Liber-

ties Union testified before Congress:

At risk [are] such familiar practices as the sacramen-

tal use of wine, kosher slaughter, the sanctity of the

confessional, religious preferences in church hiring,

establishing places of worship in areas zoned for.

other use, permitting religious sponsored hospitals to

decline to provide abortion or contraception services,

sex segregation during worship services, exemptions

from mandatory retirement laws, a church’s refusal

to ordain women or homosexuals, exemptions from

landmark and zoning regulations, and the inapplica-

bility of highly intrusive educational rules to paro-

chial schools. These [are] decisions in areas that

society ha[s] previously assumed that religious

groups had the right to make for themselves and

could not be compelled to change just because

society thought otherwise.

Religious Freedom Restoration Act: Hearings before the

Senate Comm. on the Judiciary, 102d Cong., 2d Sess. 192

(1992) (statement of Nadine Strossen, President, and Robert

S. Peck, Legislative Counsel, American Civil Liberties

Union).

The history of the Mormon persecutions vividly

illustrates that “neutral” and “general” laws do not

adequately protect the values underlying the Free Exercise

Clause, and the contemporary instances of abuse sketched

above — from “general” laws regulating abortion (note 14,

supra) to the “neutral” provisions of the Bankruptcy Code

(note 29, supra) — demonstrate that the lessons from that

history have not been entirely learned. “Although many

private interests are sacrificed as a price of living in a

civilized society, the free exercise of religion cannot be one

Sup. CT. REV. 1, 64.

of them. Free exercise has at least as great a claim to the

protection of heightened scrutiny as any other right afforded

such protection [under the Constitution].” Lee, supra, 1993

B.Y.U. L. REV. at 95.

Il. INENACTING RFRA, CONGRESS PROPERLY

COMPENSATED FOR STRUCTURAL BIASES

THAT IMPEDE THE EXERCISE OF RELI-

GIOUS LIBERTY.

History’s lesson regarding the importance of heightened

scrutiny for free exercise of religion is particularly evident in

the present case. According to Petitioner, St. Peter Church

in Boerne embodies “times and memories [that] are graven

into the souls of a city,” and “this highly visible church set

on a hill speaks directly of the history of this City and its

people.” Pet. Br. 2. The City’s memory is quite selective.

Indeed, there is a perverse irony in its claim: the church is

located where it is, on a hill near the edge of town, only

because the City refused to allow churches within the city

limits when the parish was founded. KENDALL COUNTY

HISTORICAL COMM’'N, A HISTORY OF KENDALL COUNTY

TEXAS 22 (1984); Gregory Curtis, The Church on the Hill,

TEXAS MONTHLY 9 (Dec. 1996). The City no doubt

intended to recall something other than the history of

religious persecution with its description of the cultural value

of the church. But, by denying the church the right to

expand, the City imposes substantial burdens on both the

rights of believers who are forced to worship in inadequate

alternative facilities and the rights of the church itself to

determine how it should best fulfill its religious responsibili-

ties to its parishioners. In doing so, the City exhibits a

subtle contemporary version of its earlier exclusionary

practices: active religious life is disparaged, gern

and cast outside the limits of the secularist city, which

treasures religious museums but fails to comprehend the

needs of living religion. Without RFRA, what may in fact

be graven into the soul of the City is a secularist insensitivity

that exalts historical preservation of a past contribution of

religious life (the church building) over preserving the

religious rights of today’s living Catholic community.

A. Congress Has Authority to Remedy Violations of

Religious Liberty Stemming From a Growing

Secularist Bias that Distorts Governmental Neu-

trality.

The tension between religious and secularist outlooks in

this case is an instance of a much broader phenomenon that

James Davison Hunter has aptly described as “culture war.”

JAMES DAVISON HUNTER, CULTURE WARS (1991). Older

patterns of tension along sectarian lines have been supplanted

by a broad polarization cutting across all major areas of

culture that divides traditional religious believers from those

with more secularist orientations. Jd.; W. Cole Durham, Jr.

& Alexander Dushku, 7raditionalism, Secularism, and the

Transformative Dimensions of Religious Institutions, 1993

B.Y.U. L. REV. 421, 434-37. Whereas formerly, secular

interests could fairly be said to be neutral as between

different religious traditions, there are a growing number of

areas in which secularist objectives are anything but neutral

from a religious perspective. Religious considerations are

thereby undervalued in secular bureaucracies because of the

tendency of secular bureaucrats to confuse secularity with

neutrality. If the two were identical, any interest with a

secular agenda would be empowered by Smith to trump

religious rights. The secularity of the agenda clearly does

not insure its neutrality toward religious groups and beliefs

at the other pole of the “culture war.”

The culture wars have produced organized interest

groups who are affirmatively hostile to religion in general,

or to certain religions in particular. For examples of

contemporary anti-Catholicism, see Richard F. Duncan, Who

Wants to Stop the Church: Homosexual Rights Legislation,

Public Policy, and Religious Freedom, 69 NOTRE DAME L.

REV. 393, 440-442 (1994); Edward McGlynn Gaffney, Jr.,

Hostility to Religion, American Style, 42 DEPAUL L. REV.

263, 279-293 (1992); for a book-length anti-Baptist hate

tract, see ARTHUR FREDERICK IDE, EVANGELICAL TER-

RORISM: CENSORSHIP, FALWELL, ROBERTSON & THE

SEAMY SIDE OF CHRISTIAN FUNDAMENTALISM (1986); for an

account of organized hostility to religious “cults,” see

ANSON SHUPE & DAVID BROMLEY, THE NEW VIGILANTES

(1980); Douglas Laycock, The Remnants of Free Exercise,

1990 Sup. CT. REV. 1, 64-65. For examination of the

theoretical underpinnings of hostility to religion, see

Frederick Mark Gedicks, Public Life and Hostility to

Religion, 78 Va. L. REV. 671 (1992); Michael W.

McConnell, “God is Dead and We Have Killed Him”:

Freedom of Religion in the Post-Modern Age, 1993 B.Y.U.

L. REV. 163. Public opinion polls, cited in the brief of

Respondent Flores, show widespread hostility to “fundamen-

talists” and “members of minority religious sects or cults.”

Resp. Br. 30.

It is generally impossible to know, let alone prove to

judicial satisfaction, when this religious hostility has contrib-

uted to legislation, or when it has caused legislators or

bureaucrats to refuse a religious exemption in circumstances

where they would have granted an exemption to a well-

connected secular interest group. But these things happen,

and they happen frequently. RFRA merely requires the

government to justify the resultant burdens on religion instead

of making the burdened claimant prove discrimination.

B. Congress May Legitimately Act to Correct the

Encroachments on Religious Liberty Emanating

From the Structure of Modern Bureaucratic

Government.

Our world has been accurately described as one in which

“regulation is everywhere.” STEPHEN L. CARTER, THE

CULTURE OF DISBELIEF 144 (1993). Federal and state laws

govern most of American life, usually through broad delega-

tions of interpretive, enforcement, and regulatory authority

to administrative and local government agencies. See

Antonin Scalia, Judicial Deference to Administrative Interpre-

tations of Law, 1989 DUKE L.J. 511, 516-517.

The nature of modern administrative bureaucracy makes

it nearly inevitable that government will impose substantial

burdens on religious practice—especially minority religious

practice—in the pursuit of relatively unimportant government

goals. In the first place, a variety of factors drive adminis-

trative agencies to seek to expand their jurisdiction. Too

often, efforts in this regard carry regulatory bureaucrats into

domains that should in fact be protected spheres of religious

autonomy. Moreover, agencies understandably seek to

maximize the consistency of their rules and regulations.

Exceptions to rules and regulations are unattractive from the

perspective of efficiency and administrative copvenience,

and, if granted too liberally, may result in the agency’s

having to defend its very existence. Furthermore, govern-

ment officials who are unfamiliar with distinctive religious

needs may think there is no rational basis for differential

treatment. Thus, the nature of administrative bureaucracy

influences administrators to exercise discretion against

accommodating the religious practices of those burdened by

agency action.

The threat to religious liberty posed by agency bias

against exemptions is heightened by the general absence

and/or ineffectiveness of judicial review of agency decisions.

Judicial review of agency decisions, particularly those by

state agencies and local governments entities, is sometimes

not available at all. See, e.g., DANIEL R. MANDELKER,

LAND USE LAw § 8.11, at 326 (2d ed. 1988) (noting that

most state zoning acts do not provide for judicial review of

decisions by planning commissions and other local govern-

ment entities that administer zoning ordinances). Grants of

statutory authority to agencies are typically broad and

general, giving such agencies tremendous discretion in

making decisions about how to implement their statutory

purpose. It is also well established that, even when judicial

review of agency decisions exists, courts owe substantial

deference to discretionary decisions made by administrative

agencies within their areas of expertise. E.g., Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.

837, 843-845, 865-866 (1984); Blum v. Bacon, 457 U.S.

132, 141 (1982); Scalia, supra, 1989 DUKE L.J. at 516-517.

In sum, by their nature, agencies are unlikely to grant

exemptions to those who are religiously burdened, and these

refusals are effectively unreviewable under a deferential

standard of judicial scrutiny.

The very case before the Court illustrates the lack of

protection afforded the free exercise of religion in such

circumstances. Boerne’s historic preservation ordinance

created a commission charged with drafting and administer-

ing an historic preservation plan, to include “Historic

Districts,” and vested with broad discretion to “protect,

enhance and perpetuate selected historic landmarks,” “safe-

guard the City’s historic and cultural heritage,” “stabilize

property values,” “foster civic pride” in the past, “protect

and enhance the City’s attractions to tourists,” “strengthen

the economy,” and promote the use of protected landmarks

and sites “for the culture, prosperity, education and general

welfare” of the City’s residents and visitors. Pet. Br. 2-3;

Pet. App. 2a. It was this commission that denied church

authorities permission to expand the Church, on the ground

that expansion was inconsistent with the “spirit and purpose”

of the preservation ordinance. Jt. App. 38, 68-69 q v.

Without RFRA, the sheer breadth of the commission’s

mandate doomed the Church’s interests from the beginning.

Among other things, the definition of the City’s “historic and

cultural heritage,” the designation of landmarks and districts

that reflect this heritage, and judgments about property

values, civic pride, tourism and the like, are discretionary

decisions made under a general grant of authority. Although

the commission identified criteria authorized by the ordinance

in reaching its decision to disallow Church expansion, Jt.

App. 38, 67 4 1, this was hardly critical to the validity of

that decision; the ordinance is so broadly worded that it is

difficult to imagine any decision that would be inconsistent

with its “spirit and purposes.”

Moreover, a superficial analysis of the ordinance could

easily lead a court to conclude that heightened scrutiny is not

required. After all, there is nothing on the face of the

ordinance to suggest that it is directed at a particular religion

or at religion generally. Moreover, even though only a small

part of the City is regulated under the ordinance, courts have

found similar landmark laws to be neutral and generally

applicable. See, e.g., Rectors, Wardens & Members of

Vestry of St. Bartholomew’s Church v. City of New York, 914

F.2d 348, 353-356 (2d Cir. 1990), cert. denied, 499 U.S.

905 (1991). Thus, without RFRA, the question of whether

the commission’s decisions impermissibly intrude on valid

religious freedom rights would be virtually immune from

judicial review. Cf. City of Euclid v. Ambler Realty Co.,

272 U.S. 365, 395 (1926) (zoning ordinances to be upheld

unless “clearly arbitrary and unreasonable, having no

substantial relation to the public health, safety, morals, or

general welfare”). Even though the Church is merely a

twentieth-century imitation of Spanish mission architecture,

Pet. Br. 2, Resp. Br. 1; even though only the facade of the

Church originally rested within an Historic District, Jt. App.

68 4s, 70 ¢ gg; and even though the proposed expansion of

the church would have left this facade intact, Jt. App. 7

4 12, the merits of the commission’s determination that

expansion would nonetheless destroy a portion of the City’s

historic and cultural heritage are effectively unreviewable.

Far more important than any of this, however, is the

unreviewability of the commission’s implicit determination

that preservation of the Church building as a relic of the past

is more important than permitting Church members to

worship in the present.

Our current age of pervasive bureaucracy, in which

government rules and regulaticus administered according to

the discretion of administrative agencies control virtually

every area of American life, demands additional protection

for religious practice if the full measure of religious liberty

guaranteed by the First Amendment is to be realized. Land

use provisions in particular characteristically involve permit

schemes analogous to those struck down in Cantwell v.

Connecticut, 310 U.S. 296, 304-307 (1940), which grant

local officials essentially standardless discretion to determine

whether religious practices may go forward. Constitutional

rights to the free exercise of religion are of little practical

value if they permit control of the meeting place of a church

to pass from its members to government outsiders without

any examination of the government’s asserted need for such

control. Yet, unless the goals of regulatory agencies like the

City’s historic preservation commission are tested against

more searching scrutiny than neutrality and general applica-

bility, agency officials have no occasion and no motivation

to consider the value of pursuing their regulatory goals

relative to the substantial burdens this pursuit may impose on

the free exercise of religion. As this Court noted in Church

of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534

(1993) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 696

(1970) (Harlan, J., concurring)), “The Free Exercise Clause

protects against governmental hostility which is masked as

well as overt. ‘The Court must survey meticulously the

circumstances of governmental categories to eliminate, as it

were, religious gerrymanders.’” RFRA simply provides the

occasion and the motivation to scrutinize such gerrymanders,

by requiring that regulators identify a genuinely important

government goal that cannot be achieved without burdening

religious practice in some less restrictive manner.

C. RFRA Compensates for Inherent Limits on Legis-

lative Capacy to Craft Keligiously Sensitive

Exemptions.

In Smith, this Court acknowledged the possibility that

religious practice exemptions could appropriately be crafted

within the political process. 494 U.S. at 890. In fact, such

accommodations are found at countless points throughout the

laws and regulations of the nation. They reflect the g-neral

respect of lawmakers for the principles of religious freedom

that make our pluralistic society possible. Frequently,

however, lawmakers fail to make appropriate exemptions not

because they necessarily wish to decline granting the exemp-

tion, but because no legislative body can be aware of the full

range of religious needs warranting exemptions. See, é.g.,

Axelrod, supra note 16 (failing to exempt religiously

motivated volunteer services from a regulatory limit on non-

compensated services); Bessard, supra note 20 (requiring a

loyalty oath not withstanding religious beliefs proscribing

execution of such a pledge); Hershberger, supra note 22

(requiring vehicular signals that intrude upon religious beliefs

even though state’s interest could be furthered by means that

do not require violation of conscience); Buhl, supra note 23

(motorcycle helmet law fails to accommodate religious

beliefs that preclude wearing a helmet). Alternatively, even

when exemptions are granted, they may be insufficiently

broad. See, e.g., note 15, supra (failing to exempt religious

shelter for the homeless from a housing regulation designed

to facilitate access by the handicapped); Montgomery, supra

note 25 (general autopsy laws require procedures that

condemn the spirit of the deceased); note 27 supra (fair

housing laws fail to accommodate practices that landlords

sincerely believe to be sinful); note 28 supra (government

enforcement scheme compels church to violate the conscien-

tious beliefs of its members). However, even where well-

intentioned lawmakers attempt to craft appropriate exemp-

tions, their efforts often fail to achieve the accommodation

they intend, because of the complexity and diversity of

religious beliefs themselves. See, e¢.g., note 14 (failing to

make sufficiently broad exemptions for conscientious

objection to abortion). Even a lawmaker with the best of

intentions may not be able to craft an exemption sufficiently

refined to address the legitimate needs of all religious

groups. The remedial influence of RFRA is vital in such

settings to prevent religious groups from being forced into

wooden pigeonholes created by insufficiently sensitive

exemption schemes.

D. Congress May Legitimately Reallocate Burdens of

Justification When Proof of Constitutional Viola-

tions Is Difficult to Obtain.

In the absence of RFRA, a claimant whose religious

practice is burdened by law can obtain relief only by carrying

the heavy burden of proving that there is an unconstitutional

motivation behind a law, and thus that it is not genuinely

neutral or general. See Lukumi, 508 U.S. at 524, 533, 537-

_ 538, 543-545. The difficulties in doing so are considerable.

Assyming that government decisionmakers intend the

reasonably foresees>le consequences of their lawmaking

actions, judges cz of course make responsible judgments

about the purpose of a law based on its language and effect.

Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J.,

dissenting). Once the inquiry ventures past these external

indications of purpose to the subjective intentions of mem-

bers of the lawmaking body, however, reliable conclusions

about government motivations are nearly impossible to reach.

See id. at 636 (Scalia, J., dissenting); Flemming v. Nestor,

363 U.S. 603, 617 (1960). Although statements of intention

by individual decisionmakers can sometimes be found in

legislative histories, such histories are not always compiled,

particularly in cases involving state legislation or discretion-

ary administrative action, and are in any event subject to

manipulation. See Edwards, 482 U.S. at 638 (Scalia, J.,

dissenting). Even when they exist, statements of individual

decisionmakers, while highly probative of the intentions of

those who make them, are only circ#mstantial evidence of

the mo vation of the decisionmaking body as a whole.

United States v. O’Brien, 391 U.S. 367, 384 (1968).

Finally, courts are understandably reluctant to find unconsti-

tutional motivations because of the implicit insult such a

finding directs at members of the decisionmaking body. See,

e.g., Edwards, 482 U.S. at 610 (Scalia, J., dissenting);

Note, Developments in the Law—Equal! Frotection, 82 HARV.

L. REV. 1065, 1093 (1969). This is especially true when, as

is almost always the case, direct evidence of unconstitutional

motivations is lacking. Cf. O’Brien, 391 U.S. at 384

(observing that “the stakes are sufficiently high for us to

eschew guesswork” in determining whether government

action was unconstituticnally motivated).

The virtual impossibility of adducing strong evidence of

illicit motivation, combined with the reticence of judges to

find such motivation on anything but the strongest evidentiary

record, suggest that deserving religious claimants will

frequently be unable to show the impermissible motivation

behind facially neutral and general laws, even in situations in

which the government decisionmaking body in fact intended

to restrict the claimants’ religious practice or consciously

valued secular interests over the claimants’ religious ones.

RFRA’s compelling interest standard does nothing more than

compensate for the structural bias associated with the

difficulty of proving motivation: it simply reallocates from

the religious practitioner to the government the burden of

proof with respect to whether facially neutral and general

laws are tainted by impermissible motives.

E. Legitimate Religious Freedom Claims in the Field

of Land Use Regulation Are Likely to Be Inade-

quately Protected Without RFRA.

The foregoing structural biases against full recognition of

free exercise rights are particularly evident in land use

decisions. In preparing this brief, an effort was made to

analyze all reported cases that have dealt with religion claims

in the context of zoning cases.*! The results are presented

as the Appendix. What is striking is that, while minority

religions represent considerably less than 9% of the general

population, they are involved in over 49% of the cases

involving the right to locate a church at a particular site, and

in over 33% of the cases seeking approval of accessory uses

of an existing church site (e.g., for sheltering or feeding the

homeless). The disproportionate burden carried by minority

religions becomes even more distressing if one takes into

account cases involving non-denominational groups, or

groups that cannot be classified on the basis of information

in case reports. If these unclassified cases are counted, over

68% of reported location cases, and over 50% of accessory

use cases, involve minority religions.

If the experience of the LDS Church is any indicator, the

foregoing statistics significantly underreport the number of

problems that minority churches face. The vague standards

of land use law leave room for anti-minority biases to have

effect. Congress could legitimately address these problems

in passing RFRA.

CONCLUSION

For all of the foregoing reasons, together with those

advanced by the Coalition and Respondent Flores, the

decision of the Court of Appeals should be affirmed.

1 The study includes cases cited in the relevant A.L.R.

annotations, a leading treatise, and the relevant Westlaw keynote

classification. The methodology used to select the cases is de-

scribed in more detail in the Appendix.

<7 aay ert

Respectfully submitted.

VON G. KEETCH

ALEXANDER DUSHKU

Kirton & McConkie

1800 Eagle Gate Tower

60 East South Temple

Salt Lake City, Utah 84111

(801) 328-3600

FREDERICK MARK GEDICKS

1338 East 660 North

Orem, Utah 84097

(801) 224-9389

W. COLE DURHAM, JR.

JAMES A. SERRITELLA

JAMES C. GEOLY*

KEVIN R. GUSTAFSON

STEFFEN N. JOHNSON

Mayer, Brown & Platt

190 S. La Salle Street

Chicago, Illinois 60603

(312) 782-0600

*Counsel of Record

APPENDIX

DISCRIMINATION AGAINST MINORITY CHURCHES

IN ZONING CASES

In order to gain some perspective on the treatment of

non-mainline groups in zoning cases, a broad sample of

zoning decisions challenged on free exercise grounds has

been analyzed. A total of 196 cases was ultimately included

in the study. This set of cases should include a fairly

comprehensive set of reported cases in this field. It includes

all cases cited in annotations that have collected cases on this

topic (including cases cited in pocket part updates),' all

cases cited in the section of a leading treatise on zoning that

addresses issues of religious land uses,’ and all cases

identified through a Westlaw search classified under West’s

Constitutional Law Key Number 84.5(18), which collects

religion cases involving zoning and land use. It is

conceivable that some cases involving religion-based

constitutional challenges to zoning decisions may not have

been captured through these sources, but it is unlikely that

there are many such cases.

The cases thus collected have been classified by the type

of zoning case and by the denomination involved.

Essentially, the zoning issues fall into two broad categories:

cases that involve zoning of property to permit a church

building to be erected on a particular site (“location cases”),

and cases that determine whether an accessory use (such as

' Jay M. Zitter, Annotation, What Constitutes Accessory or

Incidental Use of Religious or Educational Property Within Zoning

Ordinance, 11 A.L.R.4th 1084 (1992); Jeffrey F. Ghent,

Annotation, Definition of Church or Religious Use Within Zoning

Ordinances, 62 A.1L.R.3d 197 (1967); Annotation, Zoning

Regulations as Affecting Churches, 74 A.L.R.2d 377 (1961).

2 A. RATHKOPF & D. RATHKOPF, THE LAW OF ZONING AND

PLANNING § 20 (4th ed. 1992).

A-2

a homeless shelter or soup kitchen) may be allowed at the

site of an existing church (“accessory use cases”).

In most of the cases, the denomination involved is

obvious either from the case name or from discussion of the

case in the opinion. There are, however, a substantial

number of cases in which either no denominational affiliation

appears in the case, or the church involved is non-

denominational. These cases are designated as “unclassified”

in the tables below. Whiie some of the unclassified religious

associations may in fact have a denominational affiliation that

simply is not evident from the cases, most of these cases

appear to involve local, congregationally organized churches

that are functionally similar to organizations we have

classified as minority churches.

Information on the size of various denominations was

derived from tables provided in BARRY A. KOSMIN &

SEYMOUR P. LACHMAN, ONE NATION UNDER GOD:

RELIGION IN CONTEMPORARY AMERICAN SOCIETY 15-17

(1993). The data is derived from the National Survey of

Religious Identification conducted by the Graduate School of

the City University of New York, which surveyed a

representative sample of 113,000 people across the

continental United States. This is the most comprehensive

poll ever conducted on the issue of religious affiliation. /d.

at 1-2. It provides the best available data of religious

affiliation as assessed from the perspective of the believer.

The line between mainline denominations and smaller

groups is difficult to draw, because one is dealing with a

continuum. For purposes of this study, groups with more

than 1.5% of the adult population were treated as mainline

groups, whereas groups with smaller percentages were

included in the minority category. The only exception in the

tables that follow is Judaism, but if the statistics on Judaism

were divided to reflect the major branches of that tradition,

A-3

the various branches would come under the 1.5% threshold.

Some smaller Protestant groups may be more analogous to

mainline groups, so that the categorizations in a few cases

could be questioned.

The population percentages in the tables that follow do

not add up to 100% because the tables do not include data on

non-religious groups and on the portion of the population

(only 2.30%) that did not respond to the survey. Many

smaller religions were not covered by the study because they

have no reported cases, but such religions represent only

2.22% of the population.

In analyzing the data, a basic starting assumption is that

any zoning dispute that progresses far enough into litigation

to yield a reported decision reflects a situation in which

religious groups perceive that their religious rights are being

violated. For a variety of practical reasons, ranging from the

need to have a good working relationship with local

government officials to the sheer cost of litigation to the

availability of alternative sites, churches probably bring

fewer actions in this area than they think they may be

entitled to bring. Table 1 summarizes the number of cases

in the location and accessory use categories by denomination.

# of

Accessor

y Use

Cases

T 36.20% 1 TO] 12.80%] T3T

or Protestants (>1. 5. }

Baptists “TS 40% 7] S. 77 10.77

E T. 4] 3.20 , =

PF 0% 6] 4.80% 3] 462

ist rT 8.00% 3 a] CS.

1.50% T] O. 1)

rian ' oe 7) 76

73] 18.40% T7]| 26.15

<i.

ies 0 ’ Ae 4] 3.

Tst ~~ O.00% T]} 1.54

Tistian Science 0.12 Tt] 0.80% T] 1.54

u 0 an 0] 0.00% T] 1.34

FF 3| 240% T] 1.34

0 3] 2.40% T] 1.54

Y O.08% T] 080% T] 1.54

vange 0.14% tT 1.00% OT 0.00

are 0.30% | : 0 0.

3 Ti 100% OT OO.

$s Witness O80%1 19] 15.20% T] 1.54

ism Pt 20% 75] 20.00% TI] 16.

ers 5.04 & Tl 0.80% 0} 0.00

y ' Ty 0.80% | «CO.

Adventists

nification t] 1.00% T] 1.54

Nitarian T] 0.80% T] 1.34

Cases T SS3%T 621 40.00%] 24] 35.

Unclassified T 12.78%] 347 19.

, + 73.61 BST 68.00% TI] 10.

Total Cases T2357 100.00

The figures indicated in Table 1 already suggest that a

substantial amount of the litigation in this area involves

A-5

minority religious groups. This burden is more pronounced

when compared to the percentage of groups from these

denominations in the general population. Table 2 provides

these comparisons.

Sol oi Eom bob » ca oe oY

me Eom Bum bom bom ich

Tnclassifiec T 1Z.78%] 19.20%) 16.92%)

Minority + Unclassified I Tle] 08.80% 30.89%

(Total Cases TOO% TOO)

A-6

The data in Table 2 are not wholly satisfactory, because

the relative populations of various religious groups vary over

the rather iengthy period from which the cases are drawn,

whereas the populativ figures, to the extent they are

available, are quite recent. Nonetheless, the figures suffice

to give a rough sense for how the percentage of cases in

which a given religious society is involved corresponds with

that society’s percentage representation in the population as

a whole. These figures strongly suggest that a high

percentage of cases are being contested by religious groups

comprising a very small percentage of the total population.

% of

Total Total

BUS

—

47 ITRT 3B. TOT 3.26% |

Episcopal 6] 3.16%] 100. OT 0.00 0.00% |

Lutheran 6| 3.10%] 66. _

Methodist 4] 2.11%] BO.00% T] 0.53%) 20.0

Stal TT 0.53%] 100. OT 0. me

esbyterian 3] 2.63%] 100. O] 0.00%] 0.

total: 26] 13.08%] 65. 14] 7.57%) x

Fn a ee ee ee

A-8

According to Table 3, 63% of religious claims were

granted, and 37% were denied. At the judicial level,

minority groups appear to fare slightly better than mainline

groups: they won 57 cases, or 66% of the cases in which

they were involved; majority religions prevailed in 26 cases,

or 65% of the cases in which they were involved. Among

other things, these figures suggest that judicial review does

help remedy the problems minority groups face, and tends to

be impartial across groups. Since the data do not indicate

that the higher percentage of cases in which minority

religions are involved reflect higher levels of ungrounded

claims, Table 2’s data showing that minority groups face a

substantially greater level of problems in the zoning area than

mainline churches seems sound.

The percentage of cases in which various denominations’

religious challenges to zoning decisions have been won and

lost is summarized in Table 4. The figures show the number

of claims won and lost both as percentages of the total

number of cases and as percentages of the total number of

claims in which each denomination (or group of

denominations) is involved.

A-10

The foregoing data suggest that a variety of factors are

operating in the zoning area in the United States that lead to

de facto discrimination against smaller religious groups.

This confirms that behind the surface of ostensibly neutral

zoning laws, a variety of discriminatory and prejudicial

factors may be operational that have the effect of violating

the religious rights of minority groups.

To facilitate access to the data provided in this appendix,

the cases reviewed are listed below, classified as they have

been categorized in the study. Within each denominational

category, the citations appear alphabetically by jurisdiction

(with federal cases preceding state cases) in reverse

chronological order. The parentheticals following the

Citations indicate how the case was classified for purposes of

the study. The letters in the parentheticals have the

following meanings:

G = _ The religious organization prevailed on the

religious claim asserted.

D = _ The religious claim asserted was denied.

L= __ The case was a “location” case.

A= The case was an “accessory use” case.

Catholic:

Keeler v. Mayor & City Council of Cumberland, 940 F.

Supp. 879 (D. Md. 1996) (D) (A)

Ellsworth v. Gercke, 156 P.2d 242 (Ariz. 1945) (G) (L)

Ramona Convent of Holy Names v. City of Alhambra, 26 Cal.

Rptr. 2d 140 (Ct. App. 1993) (D) (A)

Tustin Heights Ass'n v. Board of Supervisors of County of

Orange, 339 P.2d 914 (Cal. Dist. Ct. App. 1959) (D)

(L)

St. John’s Roman Catholic Church Corp. v. Town of Darien,

184 A.2d 42 (Conn. 1959) (D) (L)

Daughters of St. Paul v. Zoning Board, 549 A.2d 1076

(Conn. App. Ct. 1988) (G) (A)

Hull v. Miami Shores Village, 435 So. 2d 868 (Fla. Dist. Ct.

App. 1983) (D)(A)

Diakonian Soc’y v. City of Chicago, 380 N.E.2d 843 (III.

App. Ct. 1978) (G) (L)

Board of Zoning Appeals v. Wheaton, 76 N.E.2d 597 (Ind.

Ct. App. 1948) (G) (A)

Society of Jesus of New England v. Boston Landmarks

Comm'n, 564 N.E.2d 571 (Mass. 1990) (G) (L)

Sisters of Holy Cross of Mass. v. Town of Brookline, 198

N.E.2d 624 (Mass. 1964) (G) (L)

Mooney v. Village of Orchard Lake, 53 N.W.2d 308 (Mich.

1952) (G) (L)

City of Minneapolis v. Church Universal & Triumphant, 339

N.W.2d 880 (Minn. 1983) (G) (L)

Association for Educ. Dev. v. Hayward, 533 S.W.2d 579

(Mo. 1976) (G) (A)

Black v. Town of Montclair, 167 A.2d 388 (N.J. 1961) (G)

(A)

Andrews v. Board of Adjustment, 143 A.2d 262 (N.J. Super.

Ct. Law Div. 1958) (G) (A)

Diocese of Rochester v. Planning Board, 136 N.E.2d 827

(N.Y. 1956) (G) (L)

A-12

Diocese of Buffalo v. Buckowski, 446 N.Y.S.2d 1015 (Sup.

Ct. 1982) (D) (L)

Province of Meribah Soc’y of Mary, Inc. v. Village of

Muttontown, 538 N.Y.S.2d 850 (App. Div. 1989) (D)

(A)

American Friends of Soc'y of St. Pius, Inc. v. Schwab, 417

N.Y.S.2d 991 (App. Div. 1979) (G) (L)

People v. Kalayjiam, 352 N.Y.S.2d 115 (App. Div. 1973) (D)

(L)

Franciscan Missionaries of Mary v. Herdman, 184 N.Y.S.2d

104 (App. Div. 1959) (G) (A)

Hayes v. Fowler, 473 S.E.2d 442 (N.C. Ct. App. 1996) (G)

(A)

Allen v. City of Burlington Board of Adjustment, 397 S.E.2d

657 (N.C. Ct. App. 1990) (G) (L)

Archdiocese v. Washington County, 458 P.2d 682 (Or. 1969)

(D) (L)

O’Hara v. Board of Adjustment, 131 A.2d 587 (Pa. 1957)

(D) (L)

Stark’s Appeal, 72 Pa. D. & C. 1681 (Pa. 1950) (G) (A)

In re Appeal of Hoffman, 444 A.2d 764 (Pa. Commw. Ct.

1982) (G) (A)

State ex rel. Roman Catholic Bishop v. Hill, 90 P.2d 217

(Nev. 1939) (G) (L)

Major Protestant:

Baptist:

Messiah Baptist Church v. County of Jefferson, 859 F.2d 820

(10th Cir. 1988) (D) (L)

Messiah Baptist Church v. County of Jefferson, 697 F. Supp.

396 (D. Colo. 1987) (D) (L)

Ex Parte Fairhope Bd. of Adjustments, 567 So. 2d 1353 (Ala.

1990) (D) (A)

Corinth Baptist Church v. State Dep't of Transp., 656 So. 2d

868 (Ala. Civ. Ct. App. 1995) (D) (A)

a SS a

A-13

Cochise County v. Broken Arrow Baptist Church, 778 P.2d

1302 (Ariz. Ct. App. 1989) (D) (L)

Abram v. City of Fayetteville, 661 S.W.2d 371 (Ark. 1983)

(D) (A)

City of Chico v. First Ave. Baptist Church, 238 P.2d 587

(Cal. Dist. Ct. App. 1951) (D) (L)

East Side Baptist Church of Denver v. Klein, 487 P.2d 549

(Colo. 1971) (D) (A)

Parkview Baptist Church v. City of Pueblo, 336 P.2d 310

(Colo. 1959) (D) (A)

North Syracuse First Baptist Church v. Village of N.

Syracuse, 524 N.Y.S.2d 894 (App. Div. 1988) (G) (A)

Yocum v. Power, 157 A.2d 368 (Pa. 1960) (G) (L)

Antrim Faith Baptist Church v. Commonwealth, 460 A.2d

1228 (Pa. Commw. Ct. 1983) (D) (L)

City of Sumner v. First Baptist Church, 639 P.2d 1358

(Wash. 1982) (G) (A)

State ex rel. Lake Drive Baptist Church v. Bayside Bd. of

Trustees, 108 N.W.2d 288 (Wis.) (G) (L)

Episcopal:

Rector, Wardens, & Members of Bestry of St. Bartholomew's

Church vy. City of New York, 914 F.2d 348 (2d Cir.

1990) (G) (A)

O'Brien v. Chicago, 105 N.E.2d 917 (Ill. App. Ct. 1952) (G)

(L)

State v. Cameron, 498 A.2d 1217 (N.J. 1985) (G) (L)

Greentree at Murray Hill Condominiums v. Good Shepherd

Episcopalian Church, 550 N.Y.S.2d 981 (Sup. Ct.

1989) (G) (A)

Diocese of Central New York yv. Schwarzer, 199 N.Y.S.2d

939 (Sup. Ct. 1960) (G) (L)

Heard v. City of Dallas, 456 S.W.2d 440 (Tex. Civ. App. Ct.

1970) (G) (L)

Lutheran:

Miami Beach Lutheran Church of Epiphany v. City of Miami

Beach, 82 So. 2d 880 (Fla. 1955) (D) (L)

Johnson yv. Evangelical Lutheran Church of Messiah, 54

S.E.2d 722 (Ga. Ct. App. 1949) (G) (L)

Bethel Evangelical Lutheran Church v. Village of Morton,

559 N.E.2d 533 (Ill. App. Ct. 1990) (D) (A)

Our Savior’s Evangelical Lutheran Church of Naperville v.

City of Naperville, 542 N.E.2d 1158 (Ill. App. Ct.

1989) (G) (A)

Schueller v. Board of Adjustment, 95 N.W.2d 731 (lowa

1959) (G) (L)

Zion Evangelical Lutheran Church v. City of Detroit Lakes,

21 N.W.2d 203 (Minn. 1945) (D) (L)

St. John’s Evangelical Lutheran Church v. City of Hoboken,

479 A.2d 935 (N.J. Super. Ct. Law Div. 1983) (G)

(L)

Lutheran in America v. City of New York, 316 N.E.2d 305

(N.Y. 1974) (G) (A)

Synod of Ohio of United Lutheran Church v. Joseph, 39

N.E.2d 515 (Ohio 1942) (G) (L)

Methodist:

West Hartford Methodist Church v. Zoning Board of Appeals,

121 A.2d 640 (Conn. 1956) (D) (A)

Keeling v. Board of Zoning Appeals, 69 N.E.2d 613 (Ind. Ct.

App. 1946) (G) (L)

Linden Methodist Episcopal Church v. Linden, 173 A. 593

(N.J. 1934) (G) (L)

Cash v. Brookshire Methodist Church, 573 N.E.2d 692 (Ohio

Ct. App. 1988) (G) (A)

First United Methodist Church of Seattle v. Hearing

Examiner for Seattle Landmarks Preservation Bd., 916

P.2d 374 (Wash. 1996) (G) (L)

viii iiitaailitiiiiel

Pentecostal:

Pentecostal Holiness Church v. Dunn, 27 So. 2d 561 (Ala.

1946) (G) (L)

Presbyterian:

Western Presbyterian Church v. Board of Zoning Adjustment,

862 F. Supp. 538 (D.D.C. 1994) (G) (A)

Synod of Chesapeake, Inc. v. City of Newark, 254 A.2d 611

(Del. Ch. 1969) (G) (A)

City of Richmond Heights v. Richmond Heights Presbyterian

Church, 764 S.W.2d 647 (Mo. 1989) (G) (A)

First Westminister Presbyterian Church v. City Council, 393

N.Y.S.2d 180 (App. Div. 1977) (G) (L)

Westminster Presbyterian Church v. Edgecomb, 189 N.W.

617 (1922) (G) (L)

Minority Denominations:

Assemblies of God:

First Assembly of God v. Collier County, 20 F.3d 419 (11th

Cir. 1994) (D) (A)

First Assembly of God v. City of Alexandria, 739 F.2d 942

(4th Cir. 1984) (D) (A)

First Assembly of God v. Collier County, 775 F. Supp. 383

(M.D. Fla. 1991) (D) (A)

Lakeshore Assembly of God Church v. Village Board of

Village of Westfield, 508 N.Y.S.2d 819 (App. Div.

1986) (D) (A)

Buddhist:

Moore v. Triepe. 743 F. Supp. 201 (S.D.N.Y. 1990) (G) (A)

A-16

Christian Science:

Bright Horizon House, Inc. v. Zoning Bd. of Appeals, 469

N.Y.S.2d 851 (Sup. Ct. 1983) (D) (L)

Mahrt v. First Church of Christ, Scientist, 142 N.E.2d 678

(Ohio Ct. App. 1955) (G) (A)

Church of Christ:

Church of Christ v. Metropolitan Bd. of Zoning Appeals, 371

N.E.2d 1331 (Ind. Ct. App. 1978) (G) (A)

Church of God:

Church of God v. City of Monroe, 404 F. Supp. 175 (M.D.

La. 1975) (G) (A)

Jernigan v. Smith, 126 S.E.2d 678 (Ga. 1962) (D) (L)

City of Sherman v. Simms, 183 S.W.2d 415 (Tex. 1944) ( D)

(L)

State ex rel. Howell v. Meador, 154 S.E. 876 (W. Va. 1930)

(G) (L)

Church of Jesus Christ of Latter-day Saints:

Church of Jesus Christ of Latter-Day Saints v. Jefferson

County, 741 F. Supp. 1522 (N.D. Ala. 1990) (G) (L)

Corporation of Presiding Bishop v. City of Porterville, 203

P.2d 823 (Cal. Dist. Ct. App. 1949) (D) (L)

Corporation of Presiding Bishop v. Ashton, 448 P.2d 185

(Idaho 1968) (G) (A)

City of Las Cruces v. Huerta, 692 P.2d 1331 (N.M. Ct. App.

1984) (D) (L)

Eastern Orthodox:

Macedonian Orthodox Church v. Planning Bd., 636 A.2d 96

(N.J. Super. Ct. App. Div. 1994) (D) (L)

A-17

Appeal of Russian Orthodox Church of Holy Ghost, 152 A.2d

489 (Pa. 1959) (D) (A)

Evangelical:

State ex rel. Covenant Harbor Bible Camp v. Steinke, 96

N.W.2d 356 (Wis. 1959) (G) (L)

Cornerstone Bible Church v. City of Hastings, 740 F. Supp.

654 (D. Minn. 1990) (D) (L)

Hare Krishna:

Marsland vy. International Soc’y for Krishna Consciousness,

657 P.2d 1035 (Haw. 1983) (D) (L)

Islam:

Islamic Center v. City of Starkville, 840 F.2d 293 (Sth Cir.

1988) (G) (L)

Islamic Soc’y v. Foley, 464 N.Y.S.2d 844 (App. Div. 1983)

(G) (L)

Jehovah’s Witnesses:

Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc.

v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983)

(D) (L)

Galfas v. City of Atlanta, 193 F.2d 931 (Sth Cir. 1952) (D)

(L)

Jehovah's Witnesses Assembly Halls v. Jersey City, 597 F.

Supp. 972 (D.N.J. 1984) (G) (L)

Matthews v. Board of Supervisors, 21 Cal. Rptr. 914 (Dist.

Ct. App. 1962) (D) (L)

Garden Grove Congregation of Jehovah's Witnesses v.

Garden Grove, | Cal. Rptr. 65 (Dist. Ct. App. 1959)

(D) (L)

A-18

Redwood City Co. of Jehovah's Witnesses v. City of Menlo

Park, 335 P.2d 195 (Cal. Dist. Ct. App. 1959) (G) (L)

Minney v. City of Azusa, 330 P.2d 255 (Cal. Dist. Ct. App.

1958) (D) (L)

State ex rel. Tampa Co. of Jehovah's Witnesses v. City of

Tampa, 48 So. 2d 78 (Fla. 1950) (G) (L)

Rogers v. Mayor of Atlanta, 137 S.E.2d 668, 672 (Ga. Ct.

App. 1964) (G) (L)

Columbus Park Congregation of Jehovah's Witnesses, Inc. v.

Board of Appeals, 182 N.E.2d 722 (Ill. 1962) (G) (L)

Board of Zoning Appeals v. Decatur Co. of Jehovah's

Witnesses, 117 N.E.2d 115 (Ind. 1954) (D) (A)

Minnetonka Congregation of Jehovah's Witnesses, Inc. v.

Svee, 226 N.W.2d 306 (Minn. 1975) (G) (L)

Allendale Congregation of Jehovah's Witnesses v. Grosman,

152 A.2d 569 (N.J. 1959) (D) (L)

Jehovah's Witnesses Assembly Hall of S. New Jersey v.

Woolwich Township, 532 A.2d 276 (N.J. Super. Ct.

Law Div. 1987) (G) (L)

State ex rel. Wiegel v. Randall, 116 N.E.2d 300 (Ohio 1953)

(G) (L)

Libis v. Board of Zoning Appeals, 292 N.E.2d 642 (Ohio Ct.

App. 1972) (G) (L)

Milwaukie Co. of Jehovah's Witnesses v. Mullen, 330 P.2d 5

(Or. 1958) (D) (L)

Appeal of Trustees of the Congregation of Jehovah's

Witnesses, 130 A.2d 240 (Pa. Super. Ct. 1957) (D)

(L)

Congregation Comm. N. Fort Worth Congregation, Jehovah's

Witnesses v. City Council, 287 S.W.2d 700 (Tex. Civ.

App. Ct. 1956) (G) (L)

State ex rel. Wenatchee Congregation of Jehovah's Witnesses

v. City of Wenatchee, 312 P.2d 195 (Wash. 1957) (G)

(L)

A-19

Judaism:

Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983)

(D) (L)

Village of Univ. Heights v. Cleveland Jewish Orphan's Home,

20 F.2d 743 (6th Cir. 1927) (G) (L)

Lucas Valley Homeowners Ass'n v. County of Marin, 284

Cal. Rptr. 427 (Ct. App. 1991) (G) (L)

Stoddard v. Edelman, 84 Cal. Rptr. 443 (Ct. App. 1970) (G)

(L)

Beit Havurah v. Zoning Board of Appeals, 418 A.2d 82

(Conn. 1979) (G) (A)

Garbaty v. Norwalk Jewish Ctr., Inc., 171 A.2d 197 (Conn.

1961) (G) (L)

Lubavitch Chabad House v. City of Evanston, 445 N.E.2d

343 (Ill. App. Ct. 1982) (G) (L)

Wolbach v. Zoning Bd. of Appeals, 226 N.E.2d 679 (Ill.

App. Ct. 1967) (G) (L)

Schwartz v. Congregation Powolei Zeduck, 131 N.E.2d 785

(Ill. App. Ct. 1956) (G) (L)

Congregation Dovid Ben Nuchim v. City of Oak Park, 199

N.W.2d 557 (Mich. Ct. App. 1972) (G) (L)

Congregation Temple Israel v. City of Creve Coeur, 320

S.W.2d 451 (Mo. 1959) (G) (L)

Kali Bari Temple v. Board of Adjustment, 638 A.2d 839 (N.J.

Super. Ct. App. Div. 1994) (G) (L)

Lakewood Residents Ass'n v. Congregation Zichron Schneur,

570 A.2d 1032 (N.J. Super. Ct. Law Div. 1989) (G)

(L)

Farhi v. Commissioners of Borough of Deal, 499 A.2d 559

(N.J. Super. Ct. Law Div. 1985) (G) (L)

Sexton v. Bates, 85 A.2d 833 (N.J. Super. Ct. Law Div.

1951), aff'd sub nom.

Sexton vy. Essex County Ritualarium, 91 A.2d 162 (N.J.

Super. Ct. App. Div. 1952) (D) (L)

Jewish Reconstructionalist Synagogue v. Village of Roslyn

Harbor, 342 N.E.2d 534 (N.Y. 1975) (G) (L)

A-20

Westchester Reform Temple v. Brown, 239 N.E.2d 891 (N.Y.

1968} (G) (A)

Community Synagogue v. Bates, 136 N.E.2d 488 (N.Y.

1956)(G) (L)

Slevin v. Long Island Jewish Medical Ctr., 314 N.Y.S.2d 937

(Sup. Ct. 1971) (G) (A)

Westbury Hebrew Congregation, Inc. v. Downer, 59 Misc. 2d

387 (N.Y. Sup. Ct. 1969) (G) (A)

Westchester Reform Temple v. Griffin, 276 N.Y.S.2d 737

(Sup. Ct. 1966) (D) (A)

Application of Garden City Jewish Center, 155 N.Y.S.2d 523

(Sup. Ct. 1956) (G) (L)

Harrison Orthodox Minyan, Inc. v. Town Board, 552

N.Y.S.2d 434 (App. Div 1990) (G) (L)

Yeshiva and Mesivta Toras Chaim v. Rose, 523 N.Y.S.2d 907

(App. Div. 1989) (D) (L)

Siegert v. Luney, 491 N.Y.S.2d 15 (App. Div. 1985) (G) (A)

North Shore Hebrew Academy v. Wegman, 481 N.Y.S.2d 142

(App. Div. 1984) (G) (A)

Congregation Gates of Prayer v. Board of Appeals, 368

N.Y.S.2d 232 (App. Div. 1975) (D) (L)

Seaford Jewish Ctr., Inc. v. Board of Zoning Appeals, 368

N.Y.S.2d 40 (App. Div. 1975) (G) (L)

Ginsberg v. Yeshiva of Far Rockaway, 358 N.Y.S.2d 477

(App. Div. 1974) (D) (A)

Shaffer v. Temple Beth Emeth, 190 N.Y.S. 841 (App. Div.

1921) (G) (A)

Young Israel Org. v. Dworkin, 133 N.E.2d 174 (Ohio Ct.

App. 1956) (G) (L)

Overbrook Farms Club v. Zoning Board, 40 A.2d 423 (Pa.

1945) (G) (A)

Appeal of Floersheim, 34 A.2d 62 (Pa. 1943) (G) (A)

Minyan v. Cheltenham Township, 552 A.2d 772 (Pa.

Commw. Ct. 1989) (G) (L)

Berlant v. Zoning Hearing Board, 279 A.2d 400 (Pa.

Commw. Ct. 1971) (G) (L)

sen a iin cn Wn ah i lt

oe aN ll beng <6 ine

WP Mane ies oR aaa th sng eign eee Sead

A-21

State ex rel. B’Nai B’Rith Foundation v. Walworth Co. Bd.

of Adjustment, 208 N.W.2d 113 (Wis. 1973) (G) (L)

Quakers:

Milharcic v. Metropolitan Bd. of Zoning Appeals, 489 N.E.2d

634 (Ind. Ct. App. 1986) (G) (L)

Seventh Day Adventists:

Application of Faith for Today, Inc., 204 N.Y.S.2d 751 (App.

Div. 1960) (G) (L)

Unification Church:

New Educ. Dev. Sys. Inc. v. Boitano, 573 F. Supp. 594 (N.D.

Cal. 1983) (G) (L)

Holy Spirit Ass'n v. Town of New Castle, 480 F. Supp. 1212

(S.D.N.Y. 1979) (D) (L)

Holy Spirit Ass'n for Unification of World Christianity v.

Brush, 469 N.Y.S.2d 196 (App. Div. 1983) (G) (A)

Unitarian:

North Shore Unitarian Soc'y v. Village of Plandome, 109

N.Y.S.2d 803 (Sup. Ct. 1951) (G) (L)

Unitarian Universalist Church v. Shorten, 314 N.Y.S.2d 66

(Sup. Ct. 1970) (G) (A)

Unclassified:

Cornerstone Bible Church v. City of Hastings, 948 F.2d 464

(8th Cir. 1991) (G) (L)

Christian Gospel Church, Inc. v. City & County of San

Francisco, 896 F.2d 1221 (9th Cir. 1990) (D) (L)

Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885

F. Supp. 1554 (M.D. Fla. 1995) (D) (A)

A-22

Alpine Christian Fellowship v. County Comm'rs, 870 F.

Supp. 991 (D. Cole. 1994) (Alpine Christian

Fellowship) (G) (A)

Nichols v. Planning & Zoning Comm'n, 667 F. Supp. 72 (D.

Conn. 1987) (G) (L)

Love Church v. City of Evanston, 671 F. Supp. 508 (N.D. IIL.

1987) (D) (L)

Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293

(Alaska 1982) (D) (A)

City of Colorado Springs v. Blanche, 761 P.2d 212 (Colo.

1988) (D) (L)

Grace Community Church v. Town of Bethel, 622 A.2d 591

(Conn. App. Ct. 1993) (G) (L)

Grace Community Church vy. Planning Comm'n, 615 A.2d

1092 (Conn. Super. Ct. 1992) (G) (L)

Town v. Reno, 377 So. 2d 648 (Fla. 1979) (Ethiopian Zion

Coptic Church) (D) (L)

Pylant v. Orange County, 328 So. 2d 199 (Fla. 1976) (First

Apostolic) (D) (L)

State v. Maxwell, 617 P.2d 816 (Haw. 1980) (Hula Hau) (D)

(A)

Hope Deliverance Ctr., Inc. v. Zoning Bd. of Appeals, 452

N.E.2d 630 (Ill. App. Ct. 1983) (Non-denominational)

(G) (L)

South Side Move of God Church v. Zoning Bd. of Appeals,

365 N.E.2d 118 (Ill. App. Ct. 1977) (D) (A)

Twin-City Bible Church v. Zoning Board of Appeals, 365

N.E.2d 1381 (Ill. App. Ct. 1977) (G) (L)

Coston Chapel A.M.E. Church v. Chaddick, 292 N.E.2d 215

(Ill. App. Ct. 1972) (D) (L)

Family Christian Fellowship v. County of Winnebago, 503

N.E.2d 367 (Ill. App. Ct. 1986) (G) (L)

Board of Zoning Appeals v. New Testament Bible Church,

411 N.E.2d 681 (Ind. Ct. App. 1980) (G) (A)

Portage Township v. Full Salvation Union, 29 N.W.2d 297

(Mich. 1947) (D) (A)

A-23

Yanow v. Seven Oaks Park, 94 A. 2d 482 (N.J. 1963)

(Eastern Christian Institute) (D) (L)

Covenant Community Church, Inc. v. Gates Zoning Bd. of

Appeals, 444 N.Y.S.2d 415 (Sup. Ct. 1981) (G) (L)

Duallo Realty Corp. v. Silver, 224 N.Y.S. 2d 55 (Sup. Ct.

1965) (Temple Emanuel) (G) (A)

Holy Sepulchre Cemetary v. City of Greece, 191 Misc. 241

(N.Y. Sup. Ct. 1947) (D) (L)

Neddermeyer v. Town of Ontario Planning Bd., 548 N.Y.S.

2d 951 (App. Div. 1989) (The Healing Church) (G)

(L)

Unification of World Christianity v. Rosenfeld, 458 N.Y.S. 2d

920 (App. Div. 1983) (Holy Spirit Ass'n) (D) (L)

Independent Church of Realization of Word of God, Inc. v.

Board of Zoning Appeals, 437 N.Y.S. 2d 443 (App.

Div. 1981) (D) (L)

State ex rel. Anshe Chesed Congregation v. Bruggemeir, 115

N.E. 2d 65 (Ohio Ct. App. 1953) (Anshe Chesed

Congregation) (G) (L)

Damascus Community Church v. Clackamus County, 610 P.

2d 273 (Or. Ct. App. 1980) (D) (A)

Christian Retreat Ctr. v. Board of County Comm'rs, 560 P.

2d 1100 (Or. Ct. App. 1977) (D) (A)

Church of Savior v. Zoning Hearing Bd., 568 A.2d 1336 (Pa.

Commw. Ct. 1989) (G) (L)

Conversion Center, Inc. v. Zoning Board of Adjustment, 278

A.2d 369 (Pa. Commw. Ct. 1971) (G) (L)

City of Rapid City v. Kahler, 334 N.W.2d 510 (S.D. 1983)

(Conerston Rescue Mission) (G) (L)

Fountain Gate Ministries, Inc. v. City of Plano, 654 S.W.2d

841 (Tex. Ct. App. 1983) (D) (A)

First Covenant Church v. City of Seattle, 840 P.2d 174

(Wash. 1992) (G) (L)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.