Land-Use Regulation of Religious Uses

The University of North Carolina at Chapel Hill

Planning and Zoning

Government regulation of religious activities raises important constitutional questions, and there has been substantial litigation on this in the past decade. In 1993 Congress attempted to change the legal standard that must be met by general land-use regulations of religious uses. The Religious Freedom Restoration Act (RFRA) rewrote the standards for review of the validity of government regulation of religiously motivated conduct in a way that could have significantly limited local land-use regulation of many religious uses. In June 1997 the Supreme Court invalidated this law in City of Boerne v. Flores,[1] a case applying historic district regulations to a church. This bulletin[2] reviews the general law on this issue, summarizes RFRA and the Boerne case, and concludes with recommendations for an analytic framework for assessing the validity of land-use restrictions on religious uses.

Introduction

The freedom to hold and practice religious beliefs according to your own conscience, without interference or dictation by government, is one of this country’s oldest and most cherished political rights. We also honor and follow the principle that laws duly enacted to protect important public interests should be applied equally to everyone. This bulletin addresses the reconciliation of these interests when the exercise of a person’s religious beliefs would be contrary to otherwise legitimate land-use regulations.

This issue can arise in many contexts, most commonly as follows: A large, established church is located in a residential neighborhood. The church proposes to expand by adding a new education building, which the church believes is essential to its religious mission. The neighbors complain that there is already inadequate parking at the church and that the increased traffic, congestion, and noise expected with an expansion of the church facilities will be harmful to public safety and the character of their peaceful neighborhood. Does the church have to comply with the city’s land-use ordinances that would regulate the proposed expansion?

The question increasingly arises in situations more controversial and emotionally charged than the routine land-use dispute described above. A religious group proposes to open a homeless shelter and soup kitchen that they sincerely believe is an essential part of their ministry to the poor, but the neighbors adamantly object. A small town proposes regulations that limit land-uses in the four-block central business district to commercial uses in order to encourage economic revitalization of a sagging downtown, and a group objects that this will have the effect of prohibiting use of inexpensive vacant downtown buildings by storefront worship centers that cannot afford alternative locations. The practitioner of a religion previously unknown in the community converts a garage into a worship center where unconventional rituals are performed, much to the consternation of the neighbors. In these situations, the conflict between the free exercise of religion and the land-use concerns of neighbors and local governments can be intense.

In many respects the erection and operation of places of worship-churches, synagogues, mosques, temples-raise the same land-use issues as are presented with the location and operation of any place of assembly. Is there adequate parking, utility service, and sufficient access to the site? Is the structure’s scale compatible with the neighborhood? However, religious land-uses can also present some unique questions. Are religiously sponsored schools and day care facilities included within permitted “places of worship”? What about associated adult care facilities, shelters, soup kitchens, or recreation facilities?[3] Even the fundamental question of what constitutes a “religion” is not without controversy.[4]

Many land-use regulations affect the exercise of religion to some degree. Zoning districts define what uses can be located on a particular site and they may exclude houses of worship, as well as other uses sponsored by religious bodies, such as schools, day-care facilities, homeless shelters, or food banks. Dimensional requirements may establish setbacks or height limits that affect religious structures. Parking, landscaping, noise, and sign regulations may also limit options open to religious bodies. While a number of state courts in the 1950s invalidated local government attempts to use zoning to limit religious uses in the residential areas of the nation’s burgeoning suburbs[5] the modern zoning trend has been to subject religious uses to the same generally applicable standards as comparable secular uses.[6]

In North Carolina many local governments have traditionally applied all of their land-use regulations to religious uses, and this has been supported by the courts.[7] For the most part, however, religious uses are treated sympathetically and the restrictions applied have been modest. Houses of worship are either favored or considered relatively benign from a land-use impact perspective, so they are usually allowed in most zoning districts, though more stringent standards are increasingly applied to facilities that serve large numbers of people.[8]

Overview of Constitutional Issues

Protection of religious freedom is an important aspect of United States constitutional law. While the original text of the Constitution forbids only religious tests for federal offices,[9] the Bill of Rights added the freedom of religion provisions now familiar to all. Tthe First Amendment both prohibits the establishment of a state religion and protects individuals in their free exercise of religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[10] The North Carolina Constitution also contains protection for freedom of religion.[11]

The precise meaning of the Establishment and the Free Exercise Clauses of the First Amendment has been subject to substantial and continuing controversy. While some contend the original meaning was simply to prohibit the government from establishing a national religion or favoring one religion over another, Thomas Jefferson set an early tone for a more far-reaching interpretation. Jefferson, in an 1802 letter to the Danbury, Connecticut, Baptist Association, characterized the First Amendment as erecting “a wall of separation between church and state.”[12] The character and nature of that constitutional wall has been debated ever since.

Much of the litigation regarding the U.S. Constitution’s protection of religious freedom has focused on the Establishment Clause. Numerous cases have addressed such issues as whether prayer can be conducted in public schools, whether tax dollars can be spent at parochial schools, whether school facilities can be used by religious groups, whether religious displays can be erected on public property, or whether businesses can be required to close on Sundays. More recently, the Free Exercise Clause has been the subject of substantial litigation. For example, recent cases have addressed issues as diverse as whether a person can use hallucinogenic drugs or sacrifice animals if that is part of a religious sacrament.

Several aspects of constitutional jurisprudence on religious freedom are relatively clear. First, government may not regulate religious beliefs.[13] In many respects this requirement that regulations not be directed toward the substance of religious beliefs is similar to the requirement that restrictions on constitutionally protected speech must be content neutral. Government may regulate the time, place, and manner of protected speech if that is done without regard to the substantive content of the speech. The Court has, for example, allowed a state to restrict those distributing religious literature and soliciting contributions at a state fair to a fixed booth location, rather than letting them freely roam the fairgrounds, but only if the restriction is for purposes of maintaining safe and orderly crowd movement.[14]

A second aspect of free exercise jurisprudence is also clear. Constitutional protection of the free exercise of religion extends beyond beliefs to many physical acts based on that belief, such as assembling for worship and partaking of sacraments.[15] A governmental regulation that is aimed solely at preventing the exercise of a religious belief is invalid. For example, a regulation designed specifically to prohibit animal sacrifice by adherents of the Santeria religion (as opposed to a uniformly applicable law on animal slaughter) was invalidated by a unanimous Court in 1993 in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.[16]

On the other hand, the Court has long held that regulations of general applicability that are neutrally applied can restrict even religiously justified conduct. For example, in 1878 the Court upheld a bigamy conviction even when the petitioner established that his religious beliefs obligated a second marriage.[17] Most general criminal statutes forbidding harmful activity do not exempt religious practices and have not been required to do so. For example a city ordinance prohibiting handling poisonous snakes was upheld against a free exercise challenge by the North Carolina Supreme Court in 1949.[18]

The difficulty-and the controversy at the heart of the dispute in the congressional adoption of the RFRA-is at the intersection of these two considerations: the freedom of individuals to believe, and so behave, as they wish on religious matters and the authority of states to uniformly regulate behavior for the public good. What is the boundary between belief that cannot be regulated and conduct that can be? What degree of burden on religious practices should trigger strict judicial review? How strong must governmental interest be to justify a restriction on religious practices? What degree of care must be exercised by governments to limit their infringement on religious practices? The current controversy dates to the 1960s, when the Supreme Court expanded the protection afforded individuals exercising their religious beliefs in ways that conflicted with government regulations of conduct. The initial landmark case establishing strong judicial protection of free exercise rights came in 1963: Sherbert v. Verner.[19] Sherbert was a Seventh Day Adventist who was denied unemployment compensation after losing her job in a South Carolina textile mill for refusing to work on Saturdays when the mill expanded from a five-day to a six-day work week. Justice Brennan, writing for a five-member majority of the Court, announced a “strict scrutiny” test for government regulations that significantly burden religious practices: the regulation is invalid unless the government is addressing a compelling state interest[20] and has chosen a narrowly tailored method of regulation.

In a controversial 1990 drug case, Employment Div., Dep’t of Human Resources v. Smith,[21] the court retreated from this strict judicial scrutiny. Two Oregon counselors were fired from their private drug rehabilitation firm based on their use of peyote. The counselors were members of the Native American Church, and it was undisputed that their use of hallucinogenic peyote was a part of their religious sacraments. The counselors were denied unemployment benefits because they had been dismissed for “misconduct” (peyote use being at that time a criminal offense in Oregon).[22] The counselors challenged that denial. The Oregon supreme court applied the Sherbert test and ruled that the counselors were entitled to unemployment compensation because the governmental interest involved (preserving the financial integrity of the compensation fund) was not a sufficiently compelling governmental interest to justify substantially burdening the counselors’ religious expression.[23] However, on appeal the U.S. Supreme Court ruled in that if the regulation is a valid and neutral law of general applicability, the Constitution does not mandate that the legislature provide a religion-based exemption. Justice Scalia, writing for a five-member majority of the Court, concluded, “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ . . . contradicts both constitutional tradition and common sense.”[24] Justice Scalia went on to note that any society providing such a religious exemption would be courting anarchy, noting religious objections could be raised to a wide variety of general governmental laws, including compulsory military service, payment of taxes, health and safety regulations, compulsory vaccinations, minimum wage, child labor, animal cruelty, environmental protection, and civil rights laws.[25]

The Smith analysis was soon applied in the land-use area. One early case rejected a contention that Smith was limited to criminal statutes and held that a Salvation Army shelter was not exempt from state regulations on rooming and boarding houses.[26] A second case, St. Bartholomew’s Church v. New York,[27] upheld application of a historic preservation ordinance to a church. The court applied a Smith analysis and concluded the New York Landmark Law was a neutral law of general application. Although the law substantially limited the church’s options for using its real estate holdings to raise revenue,[28] the court found it did not prevent the church from carrying out its religious and charitable missions in its current building. The court held since there was no showing of a discriminatory motive in its application, and there was no coercion in religious practice involved, the law did not violate the Free Exercise Clause.[29]

Religious Freedom Restoration Act and the Boerne Decision

In response to a perceived weakening of the protection of religious freedom resulting from the Smith decision, Congress in 1993 enacted the Religious Freedom Restoration Act (RFRA).[30]

The key provisions of RFRA establish a “strict scrutiny” test for any government regulations that significantly burden religious freedom. The law provided that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[31] Exceptions are allowed only if there is a “compelling governmental interest” and if the government has chosen the “least restrictive means” of furthering that interest.[32] The express intent of Congress in enacting this law was to overturn the Smith decision and return to the Sherbert strict scrutiny standard for reviewing substantial governmental infringement of religious liberty.[33] Significantly, Congress did not limit RFRA’s applic-ability to the federal government. The law’s provisions reached broadly to cover action by any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State.”[34]

Challenges to land-use restrictions as violating RFRA came quickly, with mixed results.[35] Several cases involved the location of homeless shelters as part of a church’s mission. Cases from Virginia,[36] the District of Columbia,[37] and Michigan[38] held that RFRA required that churches be allowed to continue homeless shelters or feeding programs despite zoning provisions that would have forbidden them. On the other hand, a federal district court in Florida held that a zoning restriction on location of a religious group’s food bank and homeless shelter did not violate RFRA,[39] the Arkansas supreme court ruled that RFRA did not preclude abating a nuisance caused by a massive Christmas lights display,[40] and the California supreme court held that RFRA did not allow a landlord to refuse to rent to unmarried couples.[41]

The case selected by the Supreme Court to resolve these differing results and to address the constitutionality of the Religious Freedom Restoration Act stemmed from the application of historic district regulations to a church in Boerne, Texas, a small town about twenty-five miles north of San Antonio. The town was founded in the mid-1800s by German immigrants, largely free-thinkers who were fleeing religious persecution. The original building for St. Peter’s Catholic Church was completed in 1866. Ironically, it was built outside of the city limits because the town founders prohibited churches in Boerne in earlier days. The church expanded in 1923 by building a new sanctuary next to the old church. The 1923 structure includes a 230-seat sanctuary and is an excellent example of mission revival architecture. By the mid-1990s, faced with attendance approaching 300, the church was forced to hold Sunday mass in a local auditorium. Thus the church developed an expansion plan that involved demolishing all of the 1923 building except its facade and replacing it with a modern, larger structure. However, when the church sought approval for its expansion, the city’s Landmark Commission denied the church’s permit for the demolition. The church then initiated litigation, contending the Religious Freedom Restoration Act required that the church be exempted from the city’s historic district regulations.

In June 1997 the Supreme Court decided City of Boerne v. Flores.[42] The Court ruled that Congress had exceeded its authority in adopting the RFRA and declared the act unconstitutional. The Court held that while Congress can enact legislation to remedy violations of Constitutional protections, it can not enact laws that change the scope of those rights.

Justice Kennedy, writing for a six-member majority of the court, concluded that RFRA was motivated by a desire to address the incidental burdens on religion imposed by general laws and was thus intended to change the substantive standard of the Smith decision, not to redress laws passed because of religious bigotry.[43] The Court reaffirmed that it is the province of the Supreme Court, not the Congress, to determine the scope of the Free Exercise Clause. Thus the Court held RFRA could not change the standard set by the Smith decision. The Court then held the historic preservation ordinance involved did not violate the Smith standard: “It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.”[44]

Justice O’Connor, joined by Justice Breyer in dissent, urged that the Court rehear the Boerne case as a vehicle for reexamining the holding in Smith, which she argued was wrongly decided.[45] Justice Souter also agreed that the case should be reheard in order to reexamine the Smith rule, but withheld judgment as to its ultimate correctness.

An Analytic Framework for Assessing the Validity
of Land-Use Restrictions on Religious Uses

Debate and litigation concerning the scope of the Free Exercise Clause of the Constitution will no doubt continue. A clear, concise conceptual formulation for measuring the validity of governmental regulation of religiously justified conduct does not now exist[46] and is not likely to in the near future. Still, there are several legal standards that must be observed by governments formulating land-use regulation of religious uses. In developing and applying zoning regulations that affect religious land-uses, these four general standards must be observed :

1. Land-use regulations must be based on secular land-use impacts rather than on concern about the religious beliefs involved;
2. Regulations should be applied equally to religious and secular land-uses with similar impacts.
3. Land-use regulations must be neutrally applied to all religious uses with similar land-use impacts; and,
4. There should be an appropriate balance between the burdens imposed on religious practices and benefits secured for the governmental interests being addressed.

Each of these requirements is discussed in detail below. If these four principles are observed, land-use regulation of religious land-uses can be undertaken in ways that serve legitimate public interests while protecting constitutional rights.

1. Land-use regulations must be based on secular land-use impacts rather than on concern about the religious beliefs involved.

A person’s or group’s religious beliefs are beyond the scope of governmental regulation. Regulating a particular land-use activity because of disdain for the religious beliefs underlying that conduct or based on the type of people practicing those beliefs is impermissible.[47] Regulations addressing secular concerns, such as land-use impacts, are permissible.

Therefore an initial consideration for a local government adopting land-use regulations affecting religious uses is to establish that legitimate secular governmental interests are being served by the restriction.[48] While the Supreme Court has acknowledged that most land-use regulations have a secular basis,[49] it is good practice for the adopting government to clearly state and document those legitimate interests, such as concerns about traffic and parking impacts, property value impacts, land-use compatibility,[50] adequacy of utilities, revitalization of commercial areas,[51] health and safety concerns,[52] or preservation of historic and aesthetic attributes of a community.[53] This documentation can be staff analysis or planning studies, consideration of studies conducted in other communities,[54] or comments received during the public participation and hearings leading to adoption of the regulation. This information should be developed and considered during the process of adoption of the regulation, not prepared as an after-the-fact rationalization.

2. Regulations should be applied equally to religious and secular land-uses with similar impacts.

Any regulation restricting religious uses should be fully applied to secular land-uses with similar land-use impacts. For example, a zoning restriction that prohibits a religiously sponsored soup kitchen, while permitting an adjacent commercial restaurant, would raise serious questions about whether there is in fact a legitime secular purpose for the restriction.[55] Also, a regulation that applies only to conduct motivated by religious beliefs is not “generally applicable,” so it would have to be supported by a compelling governmental interest.[56] The fact that similar secular uses were not being similarly regulated would certainly undercut an argument that there is a compelling need for the regulation.

A standard of uniform application of regulations also presents the question of how far a local government can go in exempting religious uses from otherwise uniform regulations, such as exempting a church message board from sign regulations. A degree of accommodation of religious practices by way of exemption is permissible. For example, the federal government exempted sacramental use of wine from the general ban on alcohol use during Prohibition. In Smith, Justice Scalia explicitly noted that the Oregon legislature could choose to exempt sacramental use of peyote use from state criminal sanctions.[57] However, care must be exercised in granting exemptions, as an exemption that is overly broad may well raise a question as to the legitimacy of the avowed secular purpose of the regulations. A prudent local government should establish a record that any exemption will not significantly undermine the secular purposes of the regulation.

Special care is warranted if individualized exemptions are possible or if individualized conditions are being imposed. In these instances there is a reasonable possibility that the Sherbert rule may still apply-if there would be a substantial burden on religious practice, relief must be granted unless there is a compelling governmental interest not to do so and the least restrictive regulation has been employed.[58] The Court has also noted that precision in findings justifying a restriction on constitutionally protected rights is necessary when individualized land use determinations are made (such as with special or conditional use permits and variances).[59]

Exemptions come with an additional concern-do they violate the Establishment Clause by improperly favoring a religious use over a secular use with similar land-use impacts?[60] Justice Stevens’s concurring opinion in Boerne expressed the view that exemption of a religious use from a historic preservation ordinance, but not a similar secular use, would violate the Establishment Clause. For the most part though Establishment Clause challenges of exemptions have been unsuccessful. A typical result is Goforth Properties, Inc. v. Town of Chapel Hill,[61] where the court held a zoning provision that exempted churches in the central business district from off-street parking requirements was a reasonable classification given differences between churches and businesses relative to the times they generate peak parking demands.[62] However, broad, general exemptions based solely on religious grounds rather than on differential secular impacts would be suspect and likely invalid.

3. Land-use regulations must be neutrally applied to all religious uses with similar land-use impacts.

It is impermissible for a regulation to be targeted at minority or unpopular religious uses while exempting mainstream religious uses with similar land-use impacts.[63] A land-use regulation must be “religiously neutral.”

A local government applying land-use regulations to religious uses must thus go beyond consideration of whether similar secular and religious uses are treated alike; consideration must also be given to disproportionate impacts among different religions.[64] If one religion is singled out for favorable treatment, the regulation may well violate the Establishment Clause. On the other hand, if the regulation is tailored to prevent a particular religious practice, such as the Santeria animal slaughter in the Lukumi Babalu Aye case, the regulation violates the Free Exercise Clause. Thus it is critical that a land-use regulation be applied uniformly across the board to all religious uses with similar impacts. It is advisable to use objective land-use standards where possible, avoiding discretionary standards that heighten the risk of discriminatory application to those religious uses not favored by a particular community.

A case illustrating this principle is Islamic Center of Mississippi, Inc. v. City of Starkville,[65] which invalidated the denial of approval to use an existing house in a residential zone for a mosque. There was considerable circumstantial evidence of religious discrimination at play in this case, as the city had routinely approved all similar requests for location of religious facilities that had been made by Christian entities. Yet the city council denied the approval for the Islamic Center on the basis of a neighbor’s complaint about congestion, parking, and traffic problems. The court applied a Sherbert-like analysis in concluding that this application of the zoning ordinance substantially burdened religious practices by allowing no sites for worship within walking distance of campus and that it was not narrowly drawn in support of a substantial governmental interest. The same result would likely obtain with a Smith analysis, as the application of the regulation was hardly uniform or generally applicable.

4. There should be an appropriate balance between the burdens imposed on religious practices and benefits secured for the governmental interests being addressed.

If the Religious Freedom Restoration Act had been upheld, local governments would have needed to undertake reviews of their land-use regulations to determine if they “substantially” burdened religious practices and, if so, whether there was a “compelling” governmental interest involved and whether the “least restrictive” means of addressing that interest had been chosen. Given the presumption of validity of land-use regulations and the Smith rule that a compelling interest is not required to justify a neutral land-use regulation of general applicability, these searching reviews are not mandated.

However, some assessment of the strength of the governmental interest addressed and the significance of the burdens imposed is still warranted. While the specific balancing tests mandated by RFRA are not required, due process and the Free Exercise Clause still require some assessment of the nature of the burdens imposed, the governmental interests served, and the appropriate balance between them. This assessment is particularly important when individualized conditions are being imposed, such as a condition on a special use permit for a religiously-sponsored homeless shelter. As the court concluded in the Lukumi case, “The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.” And as the Court further noted in Smith, a heightened scrutiny of even neutral laws of general application may be warranted when the law burdens both free exercise of religious views and other protected First Amendment rights.[66] Since free expression claims are often closely related to free speech[67] and freedom of association claims, it is prudent to conduct this analysis both on constitutional grounds and as a matter of good land-use planning practice.

There must be an appropriate balance between the governmental interest being advanced and the burden placed on religious practices.[68] As for the burden on religious practices, this entails some inquiry into the nature and importance of the burdened practice[69] and the degree of interference with it. As for the governmental interest, this entails some inquiry into the impacts that would be caused by a religious exception to the regulation and whether a less restrictive regulation would adequately address that interest. Courts may well continue to examine this general balancing even where the restriction meets the Smith test of being a neutral law of general application. For example, a Naples, Florida, zoning provision that closed a homeless shelter being operated as an accessory use by a church was upheld on the basis that the burden on the church to move the shelter to an appropriate zoning district was less than the burden on the county if it were forced to allow the shelter to operate in violation of the ordinance.[70]

By analogy to free speech cases,[71] two aspects of this analysis of balancing interests warrant attention by local governments applying land-use restrictions to religious uses. First, in assessing the burdens imposed, particular attention should be given the question of whether the regulation leaves reasonable alternative avenues for religious expression. For example, a zoning ordinance that prohibits all places of worship throughout the entire jurisdiction would almost certainly be invalid. On the other hand, a more carefully crafted zoning restriction (for example, one that restricted places of worship seating more than two hundred persons to particular zoning districts or sites fronting adequate roads) would no doubt be acceptable. Second, attention should be given to the balance between the burden imposed and the governmental interest served. The greater the burden on religious practices, the stronger the governmental interest should be. As part of this analysis of whether there is an appropriate fit between the regulation and the end being addressed, an inquiry should be made as to whether there are alternative ways to meet the objective that would have less impact on religious practices.

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1. 65 U.S.L.W. 4612 (June 25, 1997).

2. More detailed information on several topics covered in this bulletin is available on the Institute’s Web site. This includes tables summarizing the zoning requirements and exemptions provided for religious uses by selected North Carolina cities, the text of several ordinance provisions, and additional legal background material on the federal and state constitutional provisions regarding freedom of religion. The information can be accessed at: https://www.sog.unc.edu/resources/microsites/planning-and-development-regulation. Those without Internet access can contact the author directly for copies of this additional material.

3. See Jay M. Zitter, Annotation, What Constitutes Accessory or Incidental Use of Religious or Educational Property within Zoning Ordinance, 11 A.L.R.4th 1084 (1982).

4. See Jeffrey F. Ghent, Annotation, What Constitutes “Church,” “Religious Use,” or the Like within Zoning Ordinance, 62 A.L.R.3d 197 (1975). The courts have not precisely defined what constitutes a “religion” for First Amendment protection purposes. There is not a requirement that a person belong to a traditional religious sect. Frazee v. Illinois Dep’t of Employment Sec., 489 U.S. 829, 834 (1989). Nor is there a required belief in a Supreme Being as long as there is a sincere and meaningful parallel belief. United States v. Seeger, 380 U.S. 163, 165-66 (1965). However, a deep seated philosophical but secular belief is not included. Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). Of course, pretextual or sham “religious” justifications for otherwise illegal behavior are also not protected. United States v. Kuch, 288 F.Supp. 439 (1968) (holding Neo-American Church is not a religion that could justify drug use). See Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979) for a useful listing of indicia of whether a person’s belief system constitutes a religion.

5. For a collection of these cases, see Robert M. Anderson, AMERICAN LAW OF ZONING 3d § 12.22 (1995); R. P. Davis, Annotation, Zoning Regulations as Affecting Churches, 74 A.L.R.2d 377 (1960). Many of these state court decisions were based on substantive due process grounds, there being no rational basis for an exclusion or for treating religious uses differently from secular uses with comparable land-use impacts. Laurie Reynolds, Zoning the Church: The Police Power Versus the First Amendment, 64 B.U. L. REV. 767, 777-83 (1985) (contending the Free Exercise Clause does not mandate an exemption for religious uses). Some states still hold that local governments do not have authority to regulate religious uses. For example, in Village Lutheran Church v. City of Ladue, 935 S.W.2d 720 (Mo. Ct. App. 1996), the court followed a 1959 Missouri Supreme Court precedent that held the state’s zoning enabling authority to regulate buildings and land-used for “trade, industry, residence or other purposes” did not include authority to regulate religious uses (other than for public safety impacts).

6. Most states have allowed application of general restrictions, such as on off-street parking, wetlands, signs, size limits, setbacks, and special/conditional-use permit procedures, to religious uses. Robert M. Anderson, AMERICAN LAW OF ZONING 3d §§ 12.23 to 12.30 (1995).

7. See Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 3372 (1987) (application of paving requirement for off-street parking to church upheld); Convent of Sisters of St. Joseph v. City of Winston-Salem, 243 N.C. 316, 90 S.E.2d 879 (1956) (application of zoning to parochial school upheld); Allen v. City of Burlington Board of Adjustment, 100 N.C. App. 615, 397 S.E.2d 657 (1990) (application of zoning to a community kitchen operated by a religious group upheld).

8. The Charlotte and Wilmington zoning codes are examples of differential zoning standards depending on the numbers of seats available in the largest assembly room involved. See Jim Schwab, Zoning and Big Box Religion, ZONING NEWS (Dec. 1996) for an overview of zoning treatment of larger-scale religious uses.

9. U.S. CONST., art. VI, cl. 3, Such a requirement was common in the states.

10. U.S. CONST., amend. I. This provision applies to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (invalidating the conviction of Jehovah’s Witnesses for soliciting and proselytizing in predominantly Catholic neighborhood of New Haven without a license).

11. “All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.” N.C. CONST., art. 1, § 13 (1996). The North Carolina Supreme Court has held the state constitution both guarantees freedom of religious profession and worship and also firmly establishes a separation of religion and government. Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980) (invalidating certain provisions of the Solicitation of Charitable Funds Act that distinguished between those religious organizations that received primary financial support from their members and those receiving substantial outside contributions).

12. “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church and State.’” Adrienne Koch & William Peden, eds., THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 332 (1944). In 1878 the Court quoted this passage from Jefferson and noted, “Coming as this does from an acknowledged leader of the advocates of this measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.” Reynolds v. United States, 98 U.S. 244, 249 (1878) (upholding polygamy conviction against a free exercise claim). See also Everson v. Board of Education, 330 U.S. 1, 16 (1947) (upholding public provision of bus transportation to parochial school students).

13. “The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. . . . [G]overnment may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious beliefs, or lend its power to one or the other side in controversies over religious authority or dogma.” Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 877 (1990) (citations omitted).

14. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981).

15. “[T]he ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with other for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 877 (1990).

16. 508 U.S. 520 (1993). The Santeria religion combines elements of traditional African religion with elements of Roman Catholicism. Sacrifice of animals is a principal form of devotion in the ordinance. The Court unanimously concluded that the ordinance in question was specifically designed to stop a house of worship, school, cultural center, and museum planned by the plaintiff.

17. Reynolds v. United States, 98 U.S. 244 (1878). Chief Justice Waite wrote for a unanimous Court that “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” 98 U.S. 244, 250. The Court went on to observe, “Can a man excuse his practices to the contrary [violations of state criminal law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land; and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Id. In Cantwell v. Connecticut the Court held that the Free Exercise Clause “embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” 310 U.S. 296, 301 (1940).

18. “[A]s a matter of law the case comes to a very simple question: Which is superior, the public safety or the defendants’ religious practice? The authorities are at one in holding that the safety of the public comes first.” State v. Massey, 229 N.C. 734, 735, 51 S.E.2d 179, 180, appeal dismissed, 336 U.S. 942 (1949).

19. 374 U.S. 398 (1963). The South Carolina statutes provided a religious exemption for those who objected to Sunday work, but did not provide a similar exemption for Sabbatarians. Id. at 406. This test was reaffirmed in a 1972 case, Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Supreme Court invalidated a state law mandating school attendance for Amish children.

20. The Court noted that regulation of religiously-based conduct upheld in the past, such as in the Reynolds case, addressed conduct that “invariably posed some substantial threat to public safety, peace or order.” 374 U.S. 398, 403 (1993). See also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (upholding revocation of tax exempt status because compelling governmental interest in eradicating racial discrimination in education justified substantial burden on religious belief against interracial relationships).

21. 494 U.S. 872 (1990). The North Carolina supreme court reached a similar result in 1966. A person convicted of use of peyote and marijuana contended these were sacraments of his Neo-American Church. The court noted that the Free Exercise Clause “permits a citizen complete freedom of religion. He may belong to any church or to no church and may believe whatever he will, however fantastic, illogical, or unreasonable, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace and order.” State v. Bullard, 267 N.C. 599, 603, 148 S.E.2d 565, 568 (1966).

22. A number of states exempt peyote use in religious ceremonies from criminal sanction. Shortly after the Smith decision, Oregon did so as well. Or. Rev. Stat. Ann. § 475.992(5) (Supp. 1996). The American Indian Religious Freedom Act Amendments of 1994 § 2(b)(1), 42 U.S.C. § 1996a(b)(1), did so nationally. The key issue from a free exercise standpoint, though, is not whether the government could make such an exemption, but whether the Constitution requires it to do so.

23. 721 P.2d 445, 449-50 (Oreg. 1986).

24. 494 U.S. 872, 885 (citations omitted).

25. Id. at 888-89. In a separate opinion, Justice O’Connor took a middle-ground position. She urged application of the Sherbert balancing test, but would have held it was met in this instance: while banning sacramental peyote use is a substantial burden on religious practices, there is a compelling governmental interest in a uniform ban given the health dangers of its use and the need to prevent trafficking of a controlled substance. Id. at 905. Justice Blackmun’s dissent, joined by Justices Brennan and Marshall, would require an exemption if free exercise of religious beliefs are burdened unless there was a compelling interest that could not be served by less restrictive means. Id. at 907. The dissent concluded the test was not met in this instance given the limited sacramental use of peyote involved and the lack of any demonstrated health impacts or any widespread trafficking in peyote.

26. Salvation Army v. Department of Community Affairs, 919 F.2d 183 (3rd Cir. 1990) (holding that even though operation of the shelter is a sacrament for the Salvation Army, Smith requires neutral, generally applicable regulations on boarding houses to be applied).

27. 914 F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991). See also Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F.Supp. 1554 (M.D. Fla. 1995).

28. The church proposed to replace a seven-story Community House built in 1928 with a forty-seven story commercial office tower. The court noted it was “obvious that the Landmarks Law has drastically reduced the Church’s ability to raise revenues to carry out its various charitable and ministerial programs. In this particular case, the revenues involved are very large because the Community House is on land that would be extremely valuable if put to commercial uses. 914 F.2d 348, 355 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991).

29. On the other hand, the Washington state court, in several post-Smith decisions, has continued to apply a Sherbert analysis to invalidate landmark protection ordinances. The court finds the ordinances are not neutral, and has ruled that the economic burden inherent in historic district restrictions is a substantial burden on religious expression and that landmark preservation is not a sufficiently compelling governmental interest to justify such a burden. First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992). The court also concluded the restrictions violated the state constitution’s religious freedom provisions. In Munns v. Martin, 930 P.2d 318 (Wash. 1997), the court invalidated a potential fourteen-month delay that could be imposed on church demolition of a school to construct a pastoral center. In First United Methodist Church v. Hearing Examiner for Seattle Landmarks Preservation Bd., 916 P.2d 374 (Wash. 1996), the court held that landmark designation would reduce the resale value of the church, reducing the potential revenues available for its religious mission, thus substantially burdening the church without a compelling justification. The court noted that the designations were not unconstitutional per se, but failed here on an “as applied” analysis. Id. at 381. The Massachusetts supreme court invalidated a Boston landmarks regulation of the interior of church space as unduly infringing on the religious liberties guaranteed by the state constitution. Society of Jesus of New England v. Boston Landmarks Comm’n, 564 N.E.2d 571 (Mass. 1990). The court had previously upheld landmark regulation of the exterior of religious buildings that are visible from a public way. Opinion of the Justices, 128 N.E.2d 563 (Mass. 1955).

30. 42 U.S.C. 2000bb to 2000bb-4 (1994). RFRA had broad political support. It passed the House of Representatives without opposition and received only three negative votes in the Senate.

31. 42 U.S.C. 2000bb-1(a) (1994).

32. 42 U.S.C. 2000bb-1(b) (1994).

33. 42 U.S.C. 2000bb(b)(1). (1994). It is possible that had RFRA been upheld, its reach may not have been as extensive as many hoped or feared. A key question would be: when does a land-use regulation “substantially burden” religious practices? In Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983), cert. denied, 464 U.S. 815, the court upheld an ordinance that prohibited the construction of churches in most of the city’s residential zoning districts. Churches were allowed only in some multifamily residential and business districts, which comprised some 10 percent of the city land area. The court held the Sherbert test applies only if there is in fact a substantial burden on religious practices, which was held not to be the case when the ordinance did not prohibit construction but only restricted the locations open to the congregation. The court applied a two-step inquiry to determine whether there was a substantial burden: (1) what is the nature of the religious observance at stake (with “fundamental tenets” and “cardinal principals” receiving greater protection); and (2) what is the nature of the burden (with indirect economic impacts being permissible). 699 F.2d at 306-08. Similarly, in International Church of the Foursquare Gospel v. City of Chicago Heights, 955 F.Supp. 878 (N.D. Ill. 1996), the court held that denial of a special-use permit to locate a church in a vacant commercial building did not constitute a substantial burden since churches were a permitted use in more than 60 per cent of the city. On the other hand, in Alpine Christian Fellowship v. County Commissioners of Pitkin County, 870 F. Supp. 991 (D. Colo. 1994), the court held that a restriction on establishing a religious school within an existing permitted church building was a substantial burden (and that traffic concerns and neighborhood compatibility were not compelling grounds for the burden under a Sherbert test).

34. 42 U.S.C. 2000bb-2(1) (1994). The authority of Congress to broadly extend § 5 of the Fourteenth Amendment to mandate that states and local governments provide exemptions for religiously based conduct beyond that which the Supreme Court has held the Constitution requires proved to be the undoing of the Act. For a discussion of this fallacy of the Act, see William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act under Section 5 of the Fourteenth Amendment, 46 DUKE L. J. 291 (1996).

35. In Keeler v. Mayor of Cumberland, 928 F.Supp. 591 (D. Md. 1996), the court refused to dismiss a claim that a historic preservation ordinance violated the Free Exercise Clause, but dismissed a RFRA claim on the grounds that the Act was unconstitutional. RFRA also spawned numerous lawsuits challenging a wide variety of other government regulations. Examples include Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) (upholding preliminary injunction preventing tuberculosis test on Rastafarian who objected to the test on religious grounds); Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.), cert. denied, 117 S.Ct. 193 (1996) (denying Native American prisoner claim to right to use sweat lodge and have long hair on both Free Exercise Clause and RFRA grounds); Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995) (dismissing Rastafarian challenge to prison regulations on hair length on Free Exercise grounds but refusing to dismiss RFRA claim).

36. Stuart Circle Parish v. Board of Zoning Appeals, 946 F.Supp. 1225 (E.D. Va. 1996). The challenged activity in this case involved a cooperative program by six churches in Richmond to provide a meal for the poor each Sunday afternoon. The Meal Ministry had fed about 100 people once a week for fifteen years. The city zoning code allowed feeding programs for up to 30 persons at a time in churches as a permitted use, but larger programs required a special-use permit, which had not been requested. In a memorandum opinion the court issued an injunction prohibiting enforcement of the special-use permit requirement, concluding feeding the poor was a central tenet of the religious groups involved, that requiring the activity to be dispersed among the six churches would substantially burden the activity, and that the city had established no compelling interest protected by the regulation (there had been only a few complaints about unruly behavior, with no showing of any threat to public safety or traffic problems).

37. Western Presbyterian Church v. Board of Zoning Adjustment, 862 F.Supp. 538 (D. D.C. 1994). In a memorandum opinion, the court invalidated a determination that a church must discontinue its ten-year-old program of feeding the homeless when the church relocated a few blocks. The court concluded that termination would substantially burden the feeding program, which had been established as an integral part of the plaintiff’s religious beliefs; the court was also unconvinced there was a compelling governmental interest involved in barring the program (noting a restaurant was located within three blocks).

38. The Jesus Center v. Farmington Hills Zoning Board of Adjustment, 544 N.W.2d 698 (Mich. App. 1996). The case arose when an existing church, which was located in a residential zoning district, was denied approval to add a homeless shelter to its facility. The court held that a requirement to relocate the shelter would impose a substantial economic burden on the church (even though alternative sites were available) and that while the zoning restrictions advanced a compelling governmental interest, the city had not chosen the least restrictive means of regulation (the applicant was willing to establish guidelines prohibiting drug and alcohol use, to limit time of operation of shelter, and to require supervision of shelter users).

39. Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F.Supp. 1554 (M.D. Fla. 1995). The ordinance in question allowed a church on the site, but specifically provided that homeless shelters and food banks were not “customarily related activities” to worship and that such facilities were allowed only with a special-use permit. The court held the denial of the special-use permit did not violate RFRA because the locational requirement was not a substantial burden and, in any event, the city had a compelling justification for the regulation and had chosen the least restrictive means of carrying it out.

40. Osborne v. Power, 890 S.W.2d 570 (Ark. 1994).

41. Smith v. Fair Employment & Housing Commission, 913 P.2d 909 (Cal. 1996) (dismissing landlord claim of right to refuse to rent to unmarried couples on Free Exercise grounds because state law banning housing discrimination on the basis of marital status is a uniform law of general applicability and on RFRA grounds because the law does not substantially burden religious exercise).

42. 65 U.S.L.W. 4612 (June 25, 1997).

43. “RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.” 65 U.S.L.W. 4612, 4618 (June 25, 1997).

44. 65 U.S.L.W. 4612, 4619 (June 25, 1997).

45. Id. at 4622-28 (June 25, 1997).

46. In his Boerne dissent Justice Souter observed, “our free exercise law remains marked by an intolerable tension.” 65 U.S.L.W. 4612, 4628 (June 25, 1997). Or, as then Justice Renquist opined in dissent in an earlier case following the Sherbert rule, “the decision today adds mud to the already muddied waters of First Amendment jurisprudence.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 720 (1981).

47. A rezoning aimed directly at preventing the construction of a particular church was held to be potentially invalidated by Abierta v. City of Chicago, 449 F.Supp. 637 (N.D. Ill. 1996) (refusing to dismiss a claim based on an allegation that a invalidating rezoning initiated after notice of church’s offer to purchase violated free expression, equal protection, free speech, and RFRAas unsupported by a compelling governmental interest). See also Storm v. Town of Woodstock, 944 F. Supp. 139 (N.D. N.Y. 1996) (remanding case for additional fact-finding as to whether parking restriction was motivated by intent to inhibit “expressive, spiritual, religious gatherings” at an open air meadow).

48. See, e.g., Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991). The challenged regulation excluded churches as incompatible with revitalization of a central business district. The court remanded the case for additional findings under a traditional content-neutral time, place, and manner regulation of speech analytic framework (e.g., adequacy of studies relative to adverse secondary impacts of church location in the commercial district). See also Metzl v. Leininger, 57 F.3d 618, 621-23 (7th Cir. 1995) (holding Illinois statewide school closing on Good Friday invalid under Establishment Clause because the state had failed to meet its burden of establishing a factual basis for a secular justification of the law).

49. Lemon v. Kurtzman, 403 U.S. 602, 612-14 (1971). For example, in First Assembly of God v. City of Alexandria, 739 F.2d 942 (4th Cir. 1984), cert. denied, 469 U.S. 1019, the Fourth Circuit Court of Appeals upheld conditions in a special-use permit that limited enrollment in a church day school to preschool through ninth grade and required erection of a fence and a landscaped buffer between the school and the surrounding neighborhood, finding these restrictions had a strictly secular purpose.

50. See, e.g., Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221 (9th Cir.), cert. denied, 498 U.S. 999 (1990) (upholding denial of a conditional-use permit for a church in a residential zoning district); Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988), cert. denied, 490 U.S. 1005 (1989) (upholding prohibition of substantial church complex in a rural area).

51. See, e.g., International Church of the Foursquare Gospel v. City of Chicago Heights, 955 F. Supp. 878 (1996) (upholding denial of permit to locate church in vacant department store based on city need to preserve area for commercial revitalization).

52. See, e.g., Congregation Beth Yitzchok of Rockland, Inc. v. Town of Ramapo, 593 F.Supp. 655 (S.D. N.Y. 1984) (upholding a Ramapo, New York, requirement for zoning compliance as applied to a religious nursery school being operated by a synagogue). The court applied a balancing test and concluded public fire safety regulations would justify even a substantial burden on religious practices.

53. See, e.g., St. Bartholomew’s Church v. New York, 914 F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991).

54. A government need not conduct new independent studies of land-use impacts, but can rely on other studies reasonably deemed to be relevant. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51 (1986). Also, the actual motives of individual officials responsible for adopting the regulation are generally not relevant as long as it is established that the predominate concerns leading to adoption were secular.

55. Restrictions narrowly applicable to a religious use without addressing comparable secular uses would also fail on due process grounds. See, e.g., Catholic Bishop of Chicago v. Kingery, 20 N.E.2d 583 (Ill. 1939) (prohibition of parochial school in zoning district that allows public schools is capricious and invalid).

56. “A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

57. “But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required.” 494 U.S. 872, 890 (1990). In his concurring opinion in Boerne, Justice Scalia emphasized that decisions on whether to grant a religious exemption should be a legislative choice, not a judicial mandate. “The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of these concrete cases. For example, shall it be the determination of this Court or rather of the people, whether . . . church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: It shall be the people.” 65 U.S.L.W. 4612, 4622 (June 25, 1997). Of course, “the people,” whether acting by referenda or through their duly elected legislative bodies, have no power to act in an unconstitutional manner, so the scope of permissible exemptions remains an important legal issue. Also, if an exemption is overly broad, the regulation ceases to be a general law of neutral application, thus triggering a compelling interest justification.

58. “The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct.” Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 884 (1990).

59. Dolan v. City of Tiguard, 512 U.S. 374, 395-96 (1994).

60. 65 U.S.L.W. 4612, 4620 (June 25, 1997). In a concurring opinion in Sherbert, Justice Stewart noted the inherent conflict between the Establishment and Free Exercise Clauses: If, based on the Free Exercise Clause, the state mandates an exception to a general rule of law to accommodate a person’s religious beliefs, does this not invariably favor that religion in a way that can violate the Establishment Clause? 374 U.S. 398, 413-17 (1963).

61. 71 N.C. App. 771, 323 S.E.2d 427 (1984).

62. A case that goes even further is Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993), cert. denied, 512 U.S. 1236 (1994), where the court upheld a day-care regulation exception for church nursery schools. The court accepted the city’s contention that the exemption’s purpose was to reduce governmental interference with religious organizations and this was an adequate secular purpose that did not endorse religious activities.

63. “[T]he First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993).

64. Facial neutrality of the ordinance is inadequate. Consideration must also be given to the neutrality of the ordinance as applied. Id. at 534 (1993). Failure to treat different religious uses that have similar land-use impact the same would raise equal protection issues by not treating similarly situated persons similarly and due process issues by having an invalid governmental objective or not adequately relating the regulation to a legitimate purpose as well as being a potential violation of the Free Exercise and Establishment Clauses.

65. 840 F.2d 293 (5th Cir. 1988). See also Church of Jesus Christ of Latter-Day Saints v. Jefferson County, 741 F.Supp. 1522 (N.D. Ala. 1990), where the court held that a refusal to rezone to allow construction of a church on an eleven-acre tract in a low density residential area of the county impermissibly burdened free expression of religion. The zoning ordinance essentially required a rezoning to an institutional zone for each proposed church location. In this instance the denial was not based on objective land-use impacts, such as traffic, waste disposal, parking, buffers, lighting, signage, or aesthetics. The sole ground cited for denial was the vociferous opposition of neighbors.

66. Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 881-82 (1990) (noting “hybrid” claims had received heightened scrutiny).

67. See, e.g., Salvation Army v. Department of Community Affairs, 919 F.2d 183, 196-201 (3rd Cir. 1990) (remanding case for analysis of regulation’s impacts on rights of association for free speech purposes in conjunction with rights to free expression of religious views).

68. Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983), cert. denied, 469 U.S. 827 (1984), is the leading pre-Smith case applying such a balancing process. The court upheld a zoning enforcement action taken to prohibit an elderly rabbi from conducting religious services in a converted garage adjacent to his house. The property was in a single-family zoning district; Miami Beach’s zoning prohibited churches in that district, but allowed them as permitted uses in all other districts. The court found the interests in protecting residential neighborhoods from the impacts of institutional uses was important and that the burden on the petitioner to move his religious services to an appropriate zoning district was not substantial since half the city, including an area only four blocks away from the plaintiff’s house, freely allowed religious institutions. Other circuits had similar holdings prior to Smith. In Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221 (9th Cir.), cert. denied, 498 U.S. 999 (1990), the court upheld denial of a conditional-use permit for a church in a residential zoning district because the burden on the church of finding a more appropriate location was minimal while the potential negative impacts to the integrity of the city’s zoning scheme and the protection of its residential neighborhoods were substantial. The church proposed to convert an existing house to a church for an estimated fifty congregants. The neighborhood association strongly objected on grounds of intrusion of institutional uses in a residential area, reduction of housing availability, and traffic, noise, and parking problems. The planning commission denied on the basis of traffic and parking problems and the impact on the character of the neighborhood. In Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988), cert. denied, 490 U.S. 1005 (1989), a Jefferson County, Colorado, prohibition on the location of churches in an agricultural zoning district in order to preserve the rural character (the ordinance also prohibited schools and community buildings) was upheld as not regulating religious beliefs, imposing only incidental financial burdens on the church, and advancing important secular governmental interests. The church was denied a special-use permit to build a sanctuary, offices, gymnasium, and drive-in-theater-like amphitheater on an eighty acre tract in a zoning district that allowed agricultural and single family residential uses by right. The planning commission cited nine reasons for denial, including access problems, erosion hazards, and the lack of fire protection.

69. Justice Scalia has expressed the view that any inquiry into the importance of a person’s religious views-their “centrality”-is “utterly unworkable,” as is an inquiry into the severity of the impact of the regulation. Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 887 (1990).

70. First Assembly of God of Naples, Florida, Inc. v. Collier County, 20 F.3d 418 (11th Cir. 1994). The county’s zoning appeal board had ruled that a homeless shelter was not a “customary accessory use” for a church. The court also applied the Smith analysis and found the regulation to be a valid neutral regulation of general applicability motivated by wholly secular concerns. In denying a motion for rehearing, the court noted that no RFRA claim was raised by either party and thus RFRA was not discussed in the decision. 27 F.3d 526 (11th Cir. 1994), cert. denied, 513 U.S. 1080 (1995). Other courts applying a similar balancing analysis include Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F.Supp. 1554 (M.D. Fla. 1995), where the court upheld denial of a special-use permit for a homeless shelter in part based on a conclusion that the ordinance regulated conduct for a secular purpose and the city interest in appropriate land-use regulation outweighed the burden on the religious use, as there was no showing that other more appropriate sites were not available; and Church of Jesus Christ of Latter-Day Saints v. Jefferson County, 741 F.Supp. 1522 (N.D. Ala. 1990), where the court invalidated refusal to rezone to allow construction of a church on the basis that the ordinance imposed a greater burden on religion than was justified by the governmental interests involved. Also see the Washington state decisions invalidating historic preservation provisions as applied to churches cited in note 29, supra.

71. “Our free speech cases similarly recognize that neutral regulations that affect free speech values are subject to a balancing, rather than a categorical, approach.” Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 902 (1990) (Justice O’Connor, concurring in result).

Sources for Additional Information

Establishment Clause

First Amendment Law Materials—(Speech, Press, Religion, Assembly), includes recent cases, from the Cornell University Legal Information Institute

Free Exercise Clause

Freedom of Religion—a substantial collection of diverse links to materials compiled by the American Communication Association

North Carolina Constitutional Provisions Regarding Religion

Zoning Provisions for Religious Institutions in Selected N.C. Cities

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