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Religion and Regulation


									First Amendment Series

Regulatory & Religion

“You think its hot here!”
      Religion and Regulation

"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.“

The first part of this provision is known as the Establishment
Clause, and the second part is known as the Free Exercise
Clause. Although the First Amendment only refers to Congress,
the U.S. Supreme Court has held that the Fourteenth
Amendment makes the Free Exercise and Establishment
Clauses also binding on states.”
         The Meaning of the
        Establishment Clause
The government cannot enact legislation that aids
one religion, aids all religions, or prefers one religion
over another.
It cannot force or influence a person to participate
in, or avoid, religion or force a person to profess a
particular religious belief.
No tax in any amount can be levied to support any
religious activities or organizations. Neither a state
nor the federal government can participate,
whether openly or secretly, in the affairs of any
religious groups.
To determine whether an action of the federal or
state government infringes upon a person's right to
freedom of religion, the court must decide what
qualifies as religion or religious activities for purposes
of the First Amendment.
               What Qualifies?
Religion is "a behavior, process or
structure whose orientation is at least
partially supernatural." But not always:
The 7th Circuit Court of Appeals ruled that prison officials erred
because they “did not treat atheism as a „religion.‟” The court
said, “Atheism is [the inmate‟s] religion, and the group that he
wanted to start was religious in nature even though it expressly
rejects a belief in a supreme being
The Supreme Court has said that a religion need not be based
on a belief in the existence of a supreme being. In the 1961
case of Torcaso v. Watkins, the Court described “secular
humanism” as a religion
         Secular Humanism
A humanist  philosophy that upholds reason, ethics,
and justice and specifically rejects rituals and
ceremonies as a means to affirm a life stance. The
term was coined in the 20th century to make a
clear distinction from "religious humanism". A
perhaps less confrontational synonym is scientific
humanism, which the biologist Edward O. Wilson
claimed to be "the only worldview compatible with
science's growing knowledge of the real world and
the laws of nature".
            A Wide Variety
Abode of the Eternal Tao - Taoism(12 million)
Yoruba Voodoo – Shango – Santariaism (1.2 million)
Rastafarianism (700,000)
Syro Manlankara
So, Can Religion Be Regulated?

  The Lemon Test 403 US 602, 1972 quoting
  Lemon v Kurtzman
The Lemon Test - First, the statute must have a secular
legislative purpose
Second, its principal or primary effect must be one that neither
advances nor inhibits religion
Finally, the statute must not foster "an excessive governmental
entanglement with religion."
The Witnesses v Lakewood
 Congregation Of Jehovah‟s
 Witnesses v. Lakewood Ohio
Does a local zoning ordinance that prohibits the construction
of churches in virtually all zoning districts, violate the
Establishment Clause of the First Amendment.
Lakewood, Ohio is a suburb of Cleveland with a population of
51,000. The land use is dominated by 1 and 2 family houses
within a linear commercial district. There are few vacant lots
remaining in the town
The 175-member Congregation of Jehovah's witnesses, a non-
profit corporation organized under Ohio law, has worshipped
in Lakewood since 1944
The Congregation's church building, called Kingdom Hall, is
currently located in a storefront on one of the main
commercial arteries in the City - 1993
The central tenets and missions of the Jehovah's Witnesses are
the distribution of literature to homes and on the street, and
the conduct of in-home Bible studies for the purpose of
instructing and encouraging people to apply biblical
teachings to daily life.
The Congregation decided to relocate Kingdom Hall and
began searching for a site capable of accommodating a
larger building. It entered into an option contract for and
subsequently purchased a half-acre lot in northwest
The surrounding neighborhood consists of large, stately one
and two-family homes, most of which were constructed
before 1930. The design for the new Kingdom Hall featured a
low, square building with a rustic stone exterior intended to
blend with the neighboring properties. The design, insofar as
possible, preserved the trees on the land and sheltered the
forty-two car parking lot from homes nearby.
               The Problem
The Congregation's lot is designated R-2, limiting its
uses to single family dwellings and "roomers."
Church buildings are permitted only in M-3, M-2, B-R,
and B-2 districts, which comprise approximately ten
percent of the City's land.
             The Allegation

 The Congregation claims that the ordinance
infringes on its right to freedom of religion by
prohibiting it from constructing Kingdom Hall on the
lot it owns
If the ordinance does infringe the Congregation's
first amendment rights, the City must justify the
ordinance by a compelling governmental interest
(strict scrutiny).
 A Cardinal Principle of Faith
Although a court's primary concern in determining
whether religious freedom has been infringed must
necessarily be the cost, economic or otherwise,
attached to religious observance, case law
highlights a secondary concern
The centrality of the burdened religious observance
to the believer's faith influences the determination
of an infringement. Religious observances in the
form of beliefs are absolutely protected from
governmental infringement.
              The First Finding
The burdens imposed on the Congregation by the ordinance
are an indirect financial burden and a subjective aesthetic
The Congregation may build a church in Lakewood only in
commercial or multi-family residential district. Land in these
districts is more expensive and, the Congregation claims, less
conducive to worship than the area where the lot is located.
No pressure is placed on the Congregation to abandon its
beliefs and observances.
           Second Finding
But the First Amendment does not require the City
to make all land or even the cheapest or most
beautiful land available to churches. The Lakewood
ordinance does not exclude the exercise of a first
amendment right, religious worship, from the City.
In summary, the Lakewood ordinance is
constitutional although it creates exclusive
residential districts and thereby prohibits the
construction of church buildings in the districts
The facts of the present case show that the
ordinance does not infringe the Congregation's
religious freedom
The ordinance merely frustrates the Congregation's
desire to locate itself in a more pleasant, more
convenient and less expensive location. Such
desires, however, are not protected by the
        Lemon test Applied
the statute must have a secular legislative purpose
Second, its principal or primary effect must be one
that neither advances nor inhibits religion
Finally, the statute must not foster "an excessive
governmental entanglement with religion."
   City of Colorado Springs V Rev. Blanch

    Case filed in 1984

• Faith Bible owned and
operated a church in
Colorado Springs that was
sold in April 1985
• Faith Bible purchased
residential property at 2804
Country Club Circle
    City of Colorado Springs v
          Richard Blanch
Title was conveyed to Blanche and his wife.
 Blanche and Faith Bible commenced, organized, and
institutionalized religious activities within the residence knowing
that the property was located in an R-1 district.
In an R-1 zone, religious institutions are not allowed as a
permitted use, but may be allowed as a conditional use.
Richard Blanche, who is the pastor for Faith Bible, and his
family live in the Country Club Circle home.
The residence is a four bedroom home with a family room
containing a piano and approximately 50 folding chairs set up
in rows facing a podium.
Blanche conducts religious services and other congregational
activities at the home four times a week.
These activities, which typically included sixty to seventy-five
people, consisted of praying, singing, studying the bible, and
teaching Sunday school.
The Good Rev. In Front of His
He Also Does Healing
            The Curtin Rises
Colorado Springs issues a violation notice to the
Rev. Blanch to cease operation as a church
Blanch says to go take a hike
Blanch is hauled into local court, fined $250 and
ordered to perform 80 hours of community service
             Lights, Action
Blanch holds services again
Brought back to court and fined $1,000
Courts issues permanent restraining order
prohibiting the use of the home as a church
Blanch does it again and the court holds him and
Faith Bible in contempt and fines him another $1,000
The congregation passes the plate
The Star of the Show - Blanch
Blanche and Faith Bible claim that the City of
Colorado Springs denied them due process and
equal protection of the law by unconstitutionally
abridging appellants' rights to freedom of speech,
assembly, association, and religion.
          The Court Answers
Colorado Spring did not abuse its authority
Content neutral regulations that exclude religious
uses from certain zones are constitutional insofar as
the rules for the exclusion are rationally related to
the goals of the police power
This is a time, manner, place restriction and is based
on the very real needs for parking, low intensity
neighborhood activity
       The Free Exercise Test
Whether the "exercise of religion" was adversely
affected by the regulation
Whether the action "substantially burdened" the
exercise of religion
Whether the action was "in furtherance of a
compelling governmental interest
Whether the action was "the least restrictive means
of furthering that compelling governmental interest
Cardinal Principles

             But what if a cardinal
             principle of a religion
             brought harm to
             others or animals?
Quick Facts
Hialeah, Florida – part of the Miami-Dade
County Metropolitan area

Current population about 225,000

Notable high-income suburb
  Church Of The Lukumi Babalu
     Aye v City of Hialeah

Santeria (The Way of the Saints) is the common, popular name. Quoting an
essay on "The Lukumi Tradition" by Afolabi:

Vodun (a.k.a. Vodoun, Voudou, Voodoo, Sevi Lwa) is commonly called
Voodoo by the public. The name is traceable to an African word for "spirit".
Vodun's can be directly traced to the West African Yoruba people who lived in
18th and 19th century Dahomey
Of Animal Sacrifice and Zoning

  This case involves practices of the Santeria religion, which
  originated in the nineteenth century.

  When hundreds of thousands of members of the Yoruba
  people were brought as slaves from eastern Africa to
  Cuba, their traditional African religion absorbed significant
  elements of Roman Catholicism

  The resulting syncretion, or fusion, is Santeria, -the way of
  the saints.- The Cuban Yoruba express their devotion to
  spirits, called orishas, through the iconography of Catholic
  saints, Catholic symbols are often present at Santeria rites,
  and Santeria devotees attend the Catholic sacraments.
The God‟s Of Santeria


              The Controversy
According to Santeria teaching, the orishas are powerful but
not immortal. They depend for survival on the sacrifice.

Sacrifices are performed at birth, marriage, and death rites, for
the cure of the sick, for the initiation of new members and
priests, and during an annual celebration.

Animals sacrificed in Santeria rituals include chickens, pigeons,
doves, ducks, guinea pigs, goats, sheep,…. The animals are
killed by the cutting of the carotid arteries in the neck. The
sacrificed animal is cooked and eaten, except after healing
and death rituals.
               The Controversy
The prospect of a Santeria church in their midst was distressing to
many members of the Hialeah community, and the announcement
of the plans to open a Santeria church in Hialeah prompted the city
council to hold an emergency public session on June 9, 1987.
The Animal Sacrifice
                    The Result
The ordinance defined sacrifice as:
 [i]t shall be unlawful for any person, persons, corporations or
associations to sacrifice any animal within the corporate limits
of the City of Hialeah, Florida. The final Ordinance, 87-72,
defined slaughter as the killing of animals for food and
prohibited slaughter outside of areas zoned for slaughter
house use. The ordinance provided an exemption, however,
for the slaughter or processing for sale of small numbers of
hogs and/or cattle per week in accordance with an
exemption provided by state law.

All ordinances and resolutions passed the
city council by unanimous vote.
               The Trial Court
First, the court found that animal sacrifices present a
substantial health risk, both to participants and the general
The court found emotional injury to children who witness
the sacrifice of animals.
Third, the court found compelling the city's interest in
protecting animals from cruel and unnecessary killing.
The court determined that the method of killing used in
Santeria sacrifice was unreliable and not humane, and
that the animals, before being sacrificed, are often kept in
conditions that produce a great deal of fear and stress in
the animal
Fourth, the District Court found compelling the city's
interest in restricting the slaughter or sacrifice of animals to
areas zoned for slaughterhouse use.
           The Supreme Court
The city does not argue that Santeria is not a religion within the
meaning of the First Amendment. Nor could it. Although the
practice of animal sacrifice may seem abhorrent to some,
religious beliefs need not be acceptable, logical, consistent,
or comprehensible to others in order to merit First Amendment
        Kennedy‟s Observation
  Our review confirms that the laws in question were enacted by
  officials who did not understand, failed to perceive, or chose
  to ignore the fact that their official actions violated the
  Nation's essential commitment to religious freedom
  The challenged laws had an impermissible object; and in all
  events the principle of general applicability was violated
  because the secular ends asserted in defense of the laws
  were pursued only with respect to conduct motivated by
  religious beliefs.

Justice Kennedy
In sum, the neutrality inquiry leads to one conclusion: The
ordinances had as their object the suppression of religion. The
pattern we have recited discloses animosity to Santeria
adherents and their religious practices; the ordinances by their
own terms target this religious exercise; the texts of the
ordinances were crafted with care to proscribe religious killings
of animals but to exclude almost all secular killings; and the
ordinances suppress much more religious conduct than is
necessary in order to achieve the legitimate ends asserted in
their defense.
 “Every time You Go To Church It Is A Matter Of Life Or

The practice of snake handling is based in the
Gospel according to St. Mark, Chapter 16,
verses 17 and 18. In this passage, Jesus says,
"And these signs shall follow them that believe;
In my name shall they cast out devils; they
shall speak with new tongues; they shall take
up serpents; and if they drink any deadly thing,
it shall not hurt them; they shall lay hands on
the sick, and they shall recover."
Archbishop of San Antonio v City of
          Boerne, Texas

                        Located in the San
                        Antonio Metro Area in
                        the west Texas Hill
                        2005 population
                        about 8,000 people
San Antonio Metro Area
Religious Freedoms Restoration
       Act (RFRA) of 1993
In this case the Supreme
Court finds that the RFRA is
a significant intrusion of
Congress on the ability of
the State‟s to enact health,
safety, and welfare laws for
the good of its communities
City of Boerne (Pronounced
BURnee) v Archbishop of
San Antonio
                   The Setting
Situated on a hill in the city of Boerne, Texas, some 28 miles
northwest of San Antonio, is St. Peters Catholic Church. Built in
1923, the church's structure replicates the mission style of the
region's earlier history. The church seats about 230 worshippers,
a number too small for its growing parish. Some 40 to 60
parishioners cannot be accommodated at some Sunday
masses. In order to meet the needs of the congregation the
Archbishop of San Antonio gave permission to the parish to
plan alterations to enlarge the building.
The Spanish Mission Style
                El Bishop

The Bishop Toasting
His Decision to Allow
The Church to
Renovate and Expand
            Action of the City
The Boerne City Council passed an ordinance authorizing the
city's Historic Landmark Commission to prepare a preservation
plan with proposed historic landmarks and districts.
The Commission must pre-approve construction affecting
historic landmarks or buildings in a historic district
The Archbishop applied for a building permit to enlarge the
City authorities, relying on the ordinance and the designation
of a historic district denied the application.
The Archbishop brought this suit challenging the permit denial
in the United States District Court
             The RFRA Itself
The impact of the Religious Freedom‟s Restoration
Act requires a State to demonstrate a compelling
interest and show that it has adopted the least
restrictive means of achieving that interest.
This is the most demanding test known to
constitutional law.
  The RFRA is Unconstitutional
If the historic landmark on the hill in Boerne happened to be a
museum or an art gallery owned by an atheist, it would not be
eligible for an exemption from the city ordinances that forbid
an enlargement of the structure.
Because the landmark is owned by the Catholic Church, it is
claimed that RFRA gives its owner a federal statutory
entitlement to an exemption from a generally applicable,
neutral civil law.
         Who Should Prevail?
Whether the Church would actually prevail under the statute or
not, the statute has provided the Church with a legal weapon
that no atheist or agnostic can obtain. This governmental
preference for religion, as opposed to irreligion, is forbidden
by the First Amendment.
No Comment
ACLU v City Of Jersey City, NJ
    Of Sleds and Snowmen

First Amendment activist John Messina is challenging a Christian
nativity creches in a public park. He charges that the "Christmas in
the Park" festival uses tax money, and should not be a venue for
religious proselytizing.
  In School Dist. of Abington Township v. Schempp
(1963), Justice Goldberg, joined by Justice Harlan,
wrote, in respect to the First Amendment's Religion
Clauses, that there is "no simple and clear measure
which by precise application can readily and
invariably demark the permissible from the
One must refer instead to the basic purposes of those
Clauses. They seek to "assure the fullest possible
scope of religious liberty and tolerance for all." They
seek to avoid that divisiveness based upon religion
that promotes social conflict, sapping the strength of
government and religion alike.
     1St Amendment Bedrock
The Constitution provides no guidance on matters of taste or
aesthetics, it does provide protection for citizens to erect even
the most energy-consuming, taste-challenged holiday display.
In particular, the Free Exercise Clause guarantees the citizen's
right to celebrate the season's religious origins.
Thus, while the individual citizen can express himself or herself
freely during the holiday season through the display of
religious symbols, the Establishment Clause imposes constraints
on the content of government-sponsored holiday displays.
               Take Home Point

The Establishment Clause
prevents government from
sponsoring, celebrating, or
endorsing religion.
The City of Jersey City normally displays a Christian
Nativity Scene and a Menorah during the holidays.
After a number of formal complaints, the City
added a decorated Christmas Tree and a sign that
explained that the display was intended to
celebrate the diversity of its citizens.
              District Court
The District Court issued a preliminary injunction
against Jersey City not to display the Nativity Scene
and the Menorah.
The following year, however, the City once again
displayed both scenes and added – Santa Clause,
Frosty the Snowman, and a red, wooden snow sled.

            +                     +
ACLU Actions – Supreme Court
The ACLU requested a permanent injunction and civil
penalties against the City for violation of the first injunction
The Lemon test is a three-pronged test requiring the following:
(1) the statute or government practice must have a secular
purpose; (2) its practical effect must be one that neither
advances nor inhibits religion; and (3) the statute or
government practice must not foster "an excessive
government entanglement with religion."
                   Key Points
“We note that the expenditure of public funds to erect
and maintain a religious display directly implicates the
Establishment Clause
Jersey City's display was erected and maintained with
public funds.
If a city taxpayer objected to the religious display, he or
she could not have opted out of contribution to the
display, even if fundamentally repugnant to his or her
own beliefs.”
                Point Two
Jersey City's display of a creche was accompanied
by a menorah, a sign, and a Christmas tree.
Jersey City maintains that this context alters the
message of endorsement conveyed by the display
of the creche.
The menorah is a religious symbol and when
displayed with a creche, the menorah's religious
significance is emphasized.
Moreover, the token inclusion of the Christmas tree
does little to mitigate the religious message of the
creche and the menorah.
Thus, the display cannot be viewed as anything but
a constitutionally impermissible dual endorsement
of Christianity and Judaism.
                   Point Three
There are three reasons why the City's diversity/pluralism
justification fails to pass constitutional muster

   First, government endorsement of one of any
    number of different religions is unconstitutional.
   Second, a reasonable observer cannot be
    presumed to be aware of the various religious
    and cultural celebrations that take place
    throughout the year in Jersey City.
The City's policy of celebrating many different
religions, while perhaps laudable, is a classic
example of government entanglement with
  Justice Breyer, June 27, 2005

 If the relation between government and
religion is one of separation, but not of
mutual hostility and suspicion, one will
inevitably find difficult borderline cases.
And in such cases, I see no test-related
substitute for the exercise of legal
  The Jesus Center v Farmington
To what extent may a local government,
through its zoning authority, limit a church
from undertaking, in the name of religion,
activities that have a negative effect
on the church's neighbors?
The key to understanding this case is how
much a regulation can burden a
religious activity
Western Suburb Region
Jesus Center Staff
                  Basic Facts

The Jesus Center, rents a two-story building in a residential
area. The church holds traditional services there, including
Sunday morning and evening worship, weekly Bible study,
and prayer meetings. For some time, The Jesus Center has
also used the location as a collection and distribution point
to supply food, clothing, and other essentials to needy
The controversy at issue here began in 1991 when The Jesus
Center broadened its ministry to provide a shelter service to
poor people, including some who are homeless
When the City of Farmington Hills (the City) learned about the
shelter service, The Jesus Center was informed that it would be
required to get zoning approval for this use of the property
The Jesus Center submitted an application to respondent,
Farmington Hills Zoning Board of Appeals, requesting a ruling
that the provision of shelter services was a permitted
"accessory use" to the principal use of the property as a
                  The Hearing
People from the largely residential neighborhood surrounding
were fearful for their families' safety because occupants of the
shelter had approached residents asking for money, theft had
increased since the shelter opened, and people from the
shelter were loitering, trespassing on private property

Others said that persons served by the shelter were alcohol
abusers and that persons from the shelter had been seen
urinating outside a local party store. Opponents of the
application contended that the shelter was in operation all
week long, not just on weekends, and also complained that
the homeless were being bussed in from other communities.
Here is How the Neighbors Saw It
        The Jesus Center Says
Proponents of The Jesus Center argued that operation of the
shelter was part of its religious mission|

They attempted to address community concerns by assuring
that the shelter operated only on weekend nights during the
winter, that the occupants were referred by the
Neighborhood Services Organization, The Salvation Army, etc.,
and that the occupants were screened for drugs and alcohol
before being accepted
The persons receiving shelter services were closely supervised
and not allowed to leave the center to wander into the
                The Results
The Board of Zoning Appeals rules that a homeless
shelter/soup kitchen was not an allowed accessory
use to a place of worship.
An accessory is subordinate to the principal use of
the land, is normal and customary, and is integral
and supportive of the principal use
The Appeals court finds that the Board‟s refusal to
interpret a Homeless Shelter as a permitted use
“substantially burdens” the Jesus Center‟s exercise
of free religious practices
The court cites the fact that acts of charity and
service to the poor are nearly universal in all
Providing sanctuary and shelter to the poor has
been part of the Judeo-Christian tradition for over
two millennium
                 And Also Finds
Total prohibition was not the
least restrictive means of
limiting the land use rights of
the Jesus Center.
Arnold is incensed over the
decision of the court and
vows to pump the
neighborhood up
   Westchester Day School, 2002
   Village of Mamaroneck, NY
   28,752 persons

38.8 median age
84,283 median income
$553,033 median house
The School
The School
The Westchester Day School [WDS] applies to the Village Zoning
Board [VZB] for a permit to enlarge their school facilities
The VZB examined the applicant for site location, environmental
impact and, after two months of deliberation turns down the
The WDS files suit in federal court asserting the Village violated
their rights under the RLUIPA (Religious Land Use and
Institutionalized Persons Act of 2000) statute – by substantially
burdening their right of the free exercise of religion
        Religious Land Use and
Institutionalized Persons Act of 2000
No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden on
the religious exercise of a person, including a religious
assembly or institution, unless the government demonstrates
that imposition of the burden on that person, assembly or

(A) is in furtherance of a compelling governmental interest;

(B) is the least restrictive means of furthering that compelling
governmental interest.
    Basis of Claim By The WDS
WDS states that their existing facilities, some more that a
century old, are inadequate for activities deemed necessary
for its educational and religious mission
WDS proposes to construct "Gordon Hall" to provide the school
with many of the basic facilities it currently lacks,
The additional classrooms will also enable the school to have
smaller classes that are more conducive to learning, to
allocate more rationally the space among the preschool,
elementary school and middle school grades and to separate
administrative functions from educational activities.
          Heart of the Issue
The issue of whether WDS has made a prima facie
case that RLUIPA has been violated. To make such
a showing, plaintiff must present evidence that
defendants' conduct in denying the application (1)
imposes a substantial burden; (2) on the "religious
exercise;" (3) of a person, institution or assembly.
         The Village Responds
Defendants charge that WDS has failed to demonstrate how
the Village is substantially burdening their exercise of religion
where the students at WDS have been, and continue to be,
able to gather to pray and be educated just as they did
before WDS applied for a modification of a special use permit.
             WDS Counters
WDS should be able within reason, to
accommodate the growing number of students
who wish to pursue a Jewish education at WDS.
Not be allowed to do so constitutes interference
with their religion
The Court Comments on the VZB
      Reasons for Denial
There are two major reasons for denying WDS's Application
-- traffic and parking.
With respect to the issue of traffic intensity, we are un-
persuaded by the opinions of additional experts relied on
by defendants (since the ZBA's initial study of the potential
adverse effects on traffic) which call into question the
validity of WDS's traffic study.
In any event, traffic concerns have never been deemed
compelling government interests: Important, but not
We find defendants' second concern, parking, even less
compelling. Defendants' denial of the application based
on an insufficient number of parking spaces is severely
undermined by the joint request of both the Westchester
County Planning Board and by the ZBA to decrease the
number of parking spaces provided for in the application.
We are firmly convinced that defendants' complete denial of
WDS's Application was not based on any compelling
governmental interest or on a fair balancing of environmental
concerns with the rights to WDS to the reasonable use of its
Defendants' abrupt reversal of its prior approval and its 3-2
vote to deny plaintiff's Application was a reaction to belated
public outcry
We find little rational basis for such community opposition in
light of the nature and publicly beneficial purpose of the
project as well as the great lengths to which WDS has gone to
ensure that its physical plant will maintain the highest level of
architectural and aesthetic quality
The End

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