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<DIV class=timestamp>October 8, 2006</DIV>
<DIV class=kicker><NYT_KICKER>In God’s Name</NYT_KICKER></DIV>
<H1><NYT_HEADLINE type=" " version="1.0">As Exemptions Grow, Religion Outweighs
Regulation </NYT_HEADLINE></H1><NYT_BYLINE type=" " version="1.0"></NYT_BYLINE>
<DIV class=byline>By <A title="More Articles by Diana B. Henriques"
href="http://topics.nytimes.com/top/reference/timestopics/people/h/diana_b_henriques/index.html?inline=nyt-per">DIANA
B. HENRIQUES</A></DIV><NYT_TEXT></NYT_TEXT>
<DIV id=articleBody>
<P>At any moment, state inspectors can step uninvited into one of the three
child care centers that Ethel White runs in Auburn, Ala., to make sure they meet
state requirements intended to ensure that the children are safe. There must be
continuing training for the staff. Her nurseries must have two sinks, one
exclusively for food preparation. All cabinets must have safety locks.
Medications for the children must be kept under lock and key, and
refrigerated.</P>
<P>The Rev. Ray Fuson of the Harvest Temple Church of God in Montgomery, Ala.,
does not have to worry about unannounced state inspections at the day care
center his church runs. Alabama exempts church day care programs from state
licensing requirements, which were tightened after almost a dozen children died
in licensed and unlicensed day care centers in the state in two years. </P>
<P>The differences do not end there. As an employer, Ms. White must comply with
the civil rights laws; if employees feel mistreated, they can take the center to
court. Religious organizations, including Pastor Fuson’s, are protected by the
courts from almost all lawsuits filed by their ministers or other religious
staff members, no matter how unfairly those employees think they have been
treated.</P>
<P>And if you are curious about how Ms. White’s nonprofit center uses its public
grants and donations, read the financial statements she is required to file each
year with the <A title="More articles about the Internal Revenue Service."
href="http://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html?inline=nyt-org">Internal
Revenue Service</A>. There are no I.R.S. reports from Harvest Temple. Federal
law does not require churches to file them.</P>
<P>Far more than an hourlong stretch of highway separates these two busy,
cheerful day care centers. Ms. White’s center operates in the world occupied by
most American organizations. As a religious ministry, Pastor Fuson’s center does
not. </P>
<P>In recent years, many politicians and commentators have cited what they
consider a nationwide “war on religion” that exposes religious organizations to
hostility and discrimination. But such organizations — from mainline
Presbyterian and Methodist churches to mosques to synagogues to Hindu temples —
enjoy an abundance of exemptions from regulations and taxes. And the number is
multiplying rapidly.</P>
<P>Some of the exceptions have existed for much of the nation’s history,
originally devised for Christian churches but expanded to other faiths as the
nation has become more religiously diverse. But many have been granted in just
the last 15 years — sometimes added to legislation, anonymously and with little
attention, much as are the widely criticized “earmarks” benefiting other special
interests. </P>
<P>An analysis by The New York Times of laws passed since 1989 shows that more
than 200 special arrangements, protections or exemptions for religious groups or
their adherents were tucked into Congressional legislation, covering topics
ranging from pensions to <A title="More articles about immigration."
href="http://topics.nytimes.com/top/reference/timestopics/subjects/i/immigration_and_refugees/index.html?inline=nyt-classifier">immigration</A>
to land use. New breaks have also been provided by a host of pivotal court
decisions at the state and federal level, and by numerous rule changes in almost
every department and agency of the executive branch.</P>
<P>The special breaks amount to “a sort of religious affirmative action
program,” said John Witte Jr., director of the Center for the Study of Law and
Religion at the <A title="More articles about Emory University"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/e/emory_university/index.html?inline=nyt-org">Emory
University</A> law school. </P>
<P>Professor Witte added: “Separation of church and state was certainly part of
American law when many of today’s public opinion makers were in school. But
separation of church and state is no longer the law of the land.”</P>
<P>The changes reflect, in part, the growing political influence of religious
groups and the growing presence of conservatives in the courts and regulatory
agencies. But these tax and regulatory breaks have been endorsed by politicians
of both major political parties, by judges around the country, and at all levels
of government.</P>
<P>“The religious community has a lot of pull, and senators are very deferential
to this kind of legislation,” said Richard R. Hammar, the editor of Church Law
& Tax Report and an accountant with law and divinity degrees from <A
title="More articles about Harvard University."
href="http://topics.nytimes.com/top/reference/timestopics/organizations/h/harvard_university/index.html?inline=nyt-org">Harvard</A>.</P>
<P>As a result of these special breaks, religious organizations of all faiths
stand in a position that American businesses — and the thousands of nonprofit
groups without that “religious” label — can only envy. And the new breaks come
at a time when many religious organizations are expanding into activities — from
day care centers to funeral homes, from ice cream parlors to fitness clubs, from
bookstores to broadcasters — that compete with these same businesses and
nonprofit organizations.</P>
<P>Religious organizations are exempt from many federal, state and local laws
and regulations covering social services, including addiction treatment centers
and child care, like those in Alabama.</P>
<P>Federal law gives religious congregations unique tools to challenge
government restrictions on the way they use their land. Consequently, land-use
restrictions that are a result of longstanding public demands for open space or
historic preservation may be trumped by a religious ministry’s construction
plans, as in a current dispute in Boulder County, Colo. </P>
<P>Exemptions in the civil rights laws protect religious employers from all
legal complaints about faith-based preferences in hiring. The courts have
shielded them from many complaints about other forms of discrimination, whether
based on race, nationality, age, gender, medical condition or sexual
orientation. And most religious organizations have been exempted from federal
laws meant to protect pensions and to provide unemployment benefits.</P>
<P>Governments have been as generous with tax breaks as with regulatory
exemptions. Congress has imposed limits on the I.R.S.’s ability to audit
churches, synagogues and other religious congregations. And beyond the federal
income tax exemption they share with all nonprofit groups, houses of worship
have long been granted an exemption from local property taxes in every state.
</P>
<P>As religious activities expand far beyond weekly worship, that venerable tax
break is expanding, too. In recent years, a church-run fitness center with a
tanning bed and video arcade in Minnesota, a biblical theme park in Florida, a
ministry’s 1,800-acre training retreat and conference center in Michigan,
religious broadcasters’ transmission towers in Washington State, and housing for
teachers at church-run schools in Alaska have all been granted tax breaks by
local officials — or, when they balked, by the courts or state legislators.</P>
<P>These organizations and their leaders still rely on public services — police
and fire protection, street lights and storm drains, highway and bridge
maintenance, food and drug inspections, national defense. But their tax
exemptions shift the cost of providing those benefits onto other citizens. The
total cost nationwide is not known, because no one keeps track. </P>
<P><SPAN class=bold>When Values Collide</SPAN></P>
<P>Few Americans dispute the value of protecting religious liberty. The framers
of the Constitution opened the First Amendment of the Bill of Rights with
language preserving religious freedom with two clear goals in mind,
constitutional scholars agree. </P>
<P>First, they wanted to assure that everyone, even members of small and
possibly unpopular sects, could practice their faith without fearing the kind of
persecution that many had experienced in their home countries, where a dominant
religion was allied with the state. Just as important, the framers wanted to
prevent the government from ever being captive to a particular religion or set
of beliefs at the expense of people of other faiths.</P>
<P>Over the last two centuries, many scholars say, this tradition of religious
freedom and tolerance, a radical concept in the 18th century, has helped this
country avoid the spasms of sectarian violence that have erupted in countries
from Ireland to India and attracted immigrants bringing talents from across the
world. </P>
<P>Some legal scholars and judges see the special breaks for religious groups as
a way to prevent government from infringing on those religious freedoms.</P>
<P>“Never forget that the exercise of religion is a constitutionally protected
activity,” said Douglas Laycock, a law professor at the <A
title="More articles about the University of Michigan."
href="http://topics.nytimes.com/top/reference/timestopics/organizations/u/university_of_michigan/index.html?inline=nyt-org">University
of Michigan</A> who has written and testified in support of greater legislative
protection for religious liberty. “Regulation imposes burdens on the free
exercise of religion. Exemptions lift those burdens.” He added, “That is
constitutionally a good thing.”</P>
<P>Precious as protecting religious freedom is, however, there are cases where
these special breaks collide with other values important in this country — like
extending the protections of government to all citizens and sharing the
responsibilities of society fairly.</P>
<P>Religious organizations defend the exemptions as a way to recognize the
benefits religious groups have provided — operating schools, orphanages, old-age
homes and hospitals long before social welfare and education were widely seen as
the responsibility of government.</P>
<P>But while ministries that run soup kitchens and homeless shelters benefit
from these exemptions, secular nonprofits serving the same needy people often do
not. And rather than just rewarding charitable works that benefit society, these
breaks are equally available to religious organizations that provide no
charitable services to anyone. </P>
<P>Similarly, religious nonprofit groups that run nationwide broadcasting
networks, produce best-selling publications or showcase a charismatic leader’s
books and speeches can take advantage of exemptions that are not available to
secular nonprofit groups — not to mention for-profit companies — engaged in the
same activities.</P>
<P>Any government oversight of religious groups must fit within the First
Amendment’s command that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof.” </P>
<P>For most of the past half-century, courts interpreted the first part of that
clause as a barrier to government action that seemed to treat religious groups
more favorably than secular ones, legal scholars said. But today, many lawyers
agree, courts are taking a more accommodating view of government actions that
benefit religious groups. </P>
<P>The willingness of the federal courts to accept these arrangements increased
considerably under the influence of <A
title="More articles about William H. Rehnquist."
href="http://topics.nytimes.com/top/reference/timestopics/people/r/william_h_rehnquist/index.html?inline=nyt-per">William
H. Rehnquist</A> when he was chief justice of the Supreme Court, said Derek H.
Davis, until recently the director of the J. M. Dawson Institute of Church-State
Studies at <A title="More articles about Baylor University"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/b/baylor_university/index.html?inline=nyt-org">Baylor
University</A> in Waco, Tex. </P>
<P>“Clearly, we’re going to be in this accommodative mode for some time,” added
Mr. Davis, who sees Chief Justice Rehnquist’s successor, Chief Justice <A
title="More articles about John G. Roberts Jr."
href="http://topics.nytimes.com/top/reference/timestopics/people/r/john_g_jr_roberts/index.html?inline=nyt-per">John
G. Roberts</A> Jr., and Justice <A
title="More articles about Samuel A. Alito Jr."
href="http://topics.nytimes.com/top/reference/timestopics/people/a/samuel_a_alito_jr/index.html?inline=nyt-per">Samuel
A. Alito Jr.</A> as likely to follow in Chief Justice Rehnquist’s footsteps on
cases affecting religious groups.</P>
<P>The problem is, efforts to protect the free exercise of religion can clash
with efforts to assure that religion is not favored by the government.</P>
<P>Besides regulatory exemptions and special tax breaks, some of which have been
in place for decades, religious organizations have recently become eligible for
an increasing stream of federal grants and contracts from state and federal
governments. This policy shift began in 1996 under President Clinton, and has
continued with greater force under President Bush. Known in the Bush
administration as the Faith Based Initiative, it has drawn considerable
attention in political, religious and academic circles.</P>
<P>But the broader tapestry of regulatory and tax exemptions for religious
groups has gone largely unacknowledged. Indeed, some religious leaders and
politicians — focusing not on these special accommodations but on issues like
the display of religious icons on public land — argue that religious groups in
America are targets of antagonism, not favoritism. House Speaker <A
title="More articles about J. Dennis Hastert."
href="http://topics.nytimes.com/top/reference/timestopics/people/h/j_dennis_hastert/index.html?inline=nyt-per">J.
Dennis Hastert</A> of Illinois, in introducing a legislative agenda last July,
said, “Radical courts have attempted to gut our religious freedom and redefine
the value system on which America was built.” </P>
<P>In March, hundreds of people and a number of influential lawmakers attended a
conference called “The War on Christians and the Values Voter in 2006” in
Washington and applauded the premise that religion was under attack.</P>
<P>Society “treats Christianity like a second-class superstition,” <A
title="More articles about Tom Delay."
href="http://topics.nytimes.com/top/reference/timestopics/people/d/tom_delay/index.html?inline=nyt-per">Tom
DeLay</A>, then <A title="More articles about Republican Party"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/r/republican_party/index.html?inline=nyt-org">a
Republican</A> representative from Texas, told the crowd. “Seen from that
perspective, of course there is a war on religion.”</P>
<P>The argument that religious groups are victims of discrimination drew a sigh
from Ms. White, the day care director in Alabama, where licensed day care
centers are finding it harder to compete with unlicensed faith-based centers
that do not have to comply with expensive licensing requirements.</P>
<P>James E. Long, a deputy attorney general for Alabama’s department of human
resources, acknowledged that licensed day care operators have complained time
and again that the exemption is unfair. “But I am unaware of any bill ever
having been introduced” that would eliminate it, Mr. Long said. “That would be a
very contentious issue. I’m sure the churches would want to be heard on
that.”</P>
<P><SPAN class=bold>Breaks for Social Services</SPAN></P>
<P>On an early summer day at the Harvest Temple Church of God in Montgomery, a
lively group of older children tossed soccer balls around a dim, cool gymnasium.
In a smaller room to the side, staff members rocked sleeping infants and
comforted cranky toddlers. </P>
<P>This bustling church-based center, next to the church sanctuary in a
well-tended middle-class neighborhood, covers its costs and helps support the
work of the church, the church pastor said.</P>
<P>“We have talked about getting licensed before in the past, but it would cost
us quite a bit of money,” Pastor Fuson said. The staff would probably be large
enough to meet state standards, he said, but the center would need costly
renovations to upgrade the facilities. </P>
<P>Ms. White, whose licensed program, Auburn Daycare Centers, has become
nationally accredited during her tenure, understands how demanding the state
requirements are. Her centers in Auburn have to comply with them, down to the
specific toys required for each age group. </P>
<P>As in many states, these regulations were a response to conditions that had
put young lives at risk. In Alabama alone, almost a dozen children died in day
care facilities in the two years before the state began upgrading its licensing
requirements in 2000.</P>
<P>Ms. White said the root problem in Alabama is that there is not enough state
aid for working families who need good day care. But given the state’s limited
resources, she said, it seems unfair that subsidies are available to unlicensed
centers as well as licensed ones — a view shared by the <A
title="Federation of Child Care Centers of Alabama"
href="http://www.nytimes.com/packages/pdf/business/20060924undone.pdf">Federation
of Child Care Centers of Alabama</A>, which has lobbied for greater financing
and universal licensing.</P>
<P>Some churches in Alabama have voluntarily obtained licenses. The Rev. Paul B.
Koch Jr., of First Christian Church in Huntsville, whose day care center is
licensed, thinks licensing for such programs is appropriate and raises the
quality of care. “But the <A title="More articles about Christian Coalition"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/c/christian_coalition/index.html?inline=nyt-org">Christian
Coalition</A> is still strong in Alabama and this is an issue for them,” he
said.</P>
<P>John W. Giles, president of the state’s Christian Coalition, confirmed that
his organization supported the exemption, noting that state oversight would be
intrusive and was unnecessary “because the pastors and congregations are your
quality control.” Although most of the unlicensed centers are run by Protestant
churches or ministries, the exemption covers all faiths, from an Islamic
preschool program in Huntsville to a Catholic parish center in Tuscaloosa.</P>
<P>Eleven other states — including Utah, Maryland, Illinois and Florida — also
have exempted religious child care programs from at least some of the rules that
apply to other nonprofit programs, according to the <A
title="National Child Care Information Center"
href="http://www.nccic.org/pubs/exemptions.html">National Child Care Information
Center</A> in Fairfax, Va.</P>
<P>One state that has dropped off that list is Texas.</P>
<P>In 1997, George Bush, who was the governor, pushed through legislation that
exempted faith-based day care centers and addiction treatment programs from
state licensing, allowing them to be monitored instead by private associations
controlled by pastors, program directors and other private citizens. Other laws
enacted on his watch steered more state financing to these “alternatively
accredited” institutions.</P>
<P>Fewer than a dozen child care centers and about 130 addiction treatment
programs took advantage of this new alternative, according to subsequent
studies. But several of these later became the focus of state investigations
into complaints of physical abuse. A study by the <A
title="A study by the Texas Freedom Network Education Fund"
href="http://www.tfn.org/files/fck/TFN CC REPORT-FINAL.pdf">Texas Freedom
Network Education Fund</A>, a nonprofit research organization that opposed the
faith-based initiatives, found that “the rate of confirmed cases of abuse and
neglect at alternatively accredited facilities in Texas is more than 10 times
that of state-licensed facilities.”</P>
<P>In spring 2001, the Texas Legislature quietly allowed the alternative
accreditation program for day care centers to lapse. </P>
<P>Two leading First Amendment scholars, asked about faith-based day care
licensing exemptions like these, said they were unfamiliar with the practice but
thought it sounded legally dubious. “I think what you describe is
unconstitutional,” said Ira C. Lupu, a law professor at <A
title="More articles about George Washington University"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/g/george_washington_university/index.html?inline=nyt-org">George
Washington University</A> and the co-director of legal research for the
Roundtable on Religion and Social Welfare Policy, an independent project of the
Rockefeller Institute of Government.</P>
<P>Professor Witte, the director of Emory University’s Center for the Study of
Law and Religion, said in an e-mail response that he “would frankly be surprised
to find even this Supreme Court going that far.”</P>
<P>However, when a group of licensed day care centers challenged the Alabama law
in a federal court in mid-2001, arguing that it deprived them of their
constitutional right to equal protection before the law, the group lost. </P>
<P>Judge Myron H. Thompson of United States District Court, <A
title="who ruled on the case"
href="http://www.nytimes.com/packages/pdf/business/20060924kids.pdf">who ruled
on the case</A>, said the state could have adopted the arrangement to avoid
church-state entanglements or simply to accommodate the free exercise of
religion. Indeed, he cited four other federal cases, all decided since 1988,
that had upheld similar exemptions for day care centers in other states.</P>
<P>In Judge Thompson’s view, it is “well settled” constitutional law that “the
possible economic inequalities that might result from religious exemptions such
as day care licensing exemptions” are not a violation of anyone’s
equal-protection rights.</P>
<P><SPAN class=bold>Exemptions From Zoning Rules</SPAN></P>
<P>“When you fly in to Denver at night, you can always pick out Boulder,” said
Ben Pearlman, an athletic young lawyer who grew up there. “It’s the only one
with big patches of darkness around it.”</P>
<P>As one of Boulder County’s three governing commissioners, the soft-spoken Mr.
Pearlman talks about protecting the county’s spectacular beauty as if it were a
sacred trust. In 1978, the county limited intensive development to already
urbanized areas, buffered by large swaths of prairie and farmland. The landscape
therefore now stands in stark contrast to the spreading carpet of subdivisions,
office parks and malls in neighboring counties around Denver.</P>
<P>To Alan Ahlgrim, the mellow and mesmerizing preacher who founded Rocky
Mountain Christian Church in eastern Boulder County in 1984, those encroaching
subdivisions look like spiritual vineyards, full of families ready to be
transformed by his church’s call for them to become “blessed to be a blessing”
to others.</P>
<P>“The church has never grown fast enough to suit me,” Pastor Ahlgrim said with
a grin that showed he was almost, but not quite, serious.</P>
<P>But the church, one of more than 200 in the county, did grow fast enough in
the last 22 years — from about three dozen families in 1984 to more than 2,200
people today — to burst from its original building and five subsequent
expansions approved by the county. </P>
<P>Today, its enthusiastic young congregation is once again bumping up against
the walls of its 106,000-square-foot home, which sits on 55 acres in an
agricultural buffer zone around the small town of Niwot. It is holding multiple
services to handle the overflow congregation, but its Sunday school space is
full, with some classes spilling out into hallways and temporary buildings set
up in a parking lot.</P>
<P>Yet church members cringe at the notion of turning away newcomers. “Who do
you say no to? Do you hang a ‘no vacancy’ sign out front?” asked Guy Scoma, a
young father who visited the church as a lonely widower and stayed on when he
met, then married, his wife, Kaarin.</P>
<P>The church wants to almost double the size of its facilities so it can
accommodate up to 4,500 people. The church could then provide a new children’s
wing, more rooms for adult classes and a gymnasium with room for two basketball
courts or potluck suppers for 1,000. The new wings, linked to the existing
building by spacious galleries, would be surrounded by more than 1,200
landscaped parking spaces, 60 percent more than today.</P>
<P>But the county’s land-use plan and zoning rules for the agricultural buffer
zone where the church stands would limit any construction on the site to a
single residential building. So the church cannot build without the approval of
the Boulder County commissioners. And in February, after an emotional public
hearing attended by more than a thousand people, Mr. Pearlman and his two fellow
commissioners said no.</P>
<P>“People are always trying to develop their properties to the limits of the
law and sometimes beyond,” Mr. Pearlman said. But the worst suburban sprawl is
the consequence of “lots of little decisions that have this cumulative effect,”
he continued. “We’re trying to resist this death by a thousand cuts, and
preserve the land where we can.” </P>
<P>Like the leaders of large, fast-growing churches across the country
confronting zoning restrictions on their expansion plans, Pastor Ahlgrim is
unhappy. The decision “is severely restrictive to our mission,” he said. Like
worshiping, teaching and gathering for fellowship, the practice of sharing with
the community — in this case, allowing certain outside groups to use the church
when it’s available — is “vital to our mission,” he continued. “When one of your
core values is generosity and you are restricted from sharing what you want to
share — what God has provided — we consider that to be a severe limitation.”
</P>
<P>The church had no choice but to go to court, he said.</P>
<P>The church has sued the county under a federal land-use law enacted by
Congress and signed by <A title="More articles about Bill Clinton."
href="http://topics.nytimes.com/top/reference/timestopics/people/c/bill_clinton/index.html?inline=nyt-per">Bill
Clinton</A> in 2000 to protect religious organizations from capricious or
discriminatory zoning restrictions by local governments. The unusual law came
after a decade-long bipartisan tug-of-war between Congress and the Supreme
Court.</P>
<P>Before 1990, the court had generally held that any government restriction on
religion must serve a compelling public interest in the least burdensome way — a
standard known as the “strict scrutiny” test. But in one Oregon case dealing
with two Native Americans’ sacramental use of peyote, an illegal drug, the
majority concluded that there was nothing unconstitutional about states
expecting citizens to comply with valid, neutral and generally applicable laws —
like those criminalizing peyote — even if compliance conflicted with religious
beliefs. </P>
<P>This <A title="Smith decision, Employment Division v. Smith"
href="http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/494/872.html">“Smith
decision,” Employment Division v. Smith</A>, provoked a fierce reaction that has
energized the drive for more legislative protections for religion ever since. In
1993, under pressure from a broad coalition whose members ranged from the <A
title="More articles about Anti-Defamation League"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/a/antidefamation_league/index.html?inline=nyt-org">Anti-Defamation
League</A> to the <A title="More articles about Southern Baptist Convention"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/s/southern_baptist_convention/index.html?inline=nyt-org">Southern
Baptist Convention</A> to the American Humanist Association, Congress adopted
the Religious Freedom Restoration Act, which restored the “strict scrutiny” test
to any federal, state or local government action affecting religious practice. A
new tool had been added to the First Amendment emergency kit, although no one
was quite sure how to use it.</P>
<P>Then the <A title="Smith decision, Employment Division v. Smith"
href="http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/494/872.html">Supreme
Court tugged back</A>. In 1997, it ruled that the religious freedom act could
not be applied constitutionally to the states. In reaction, 13 states have
subsequently adopted similar measures of their own. But Congress thought the
decision left room for it to address zoning restrictions and, separately,
religious restrictions imposed on prisoners. </P>
<P>In 2000 Congress adopted and Mr. Clinton signed the Religious Land Use and
Institutionalized Persons Act, which restored the “strict scrutiny” test to
local zoning decisions, making it easier for churches to challenge those
decisions in court. The act also made it easier for prisoners to challenge
restrictions on their religious practices. </P>
<P>The provisions that apply to prisoners have been upheld, but the Supreme
Court has not yet ruled on the land-use provisions that Rocky Mountain Christian
Church is invoking in its lawsuit against Boulder County. One of the church’s
allies in the fight is the Justice Department’s civil rights division, which is
defending the law’s constitutionality in cases around the country.</P>
<P><A title="Defenders of the law say"
href="http://www.rluipa.com/index.php/case/">Defenders of the law</A> say that
some cases invoking its protections have addressed actions by local governments
that seem to reflect blatant religious bias. For example, Rabbi Joseph Konikov
of Orlando, Fla., successfully sued his local government under the law in 2002
after county officials repeatedly cited and fined him for holding small worship
services in his suburban home, in violation of a zoning provision later found to
be an unconstitutional burden on religious freedom. </P>
<P>“It was like Communist Russia,” said Rabbi Konikov, who said his grandfather
had fled the Soviet Union to escape religious oppression. He has continued to
hold services in his home. “It was very satisfying to see that, at the end, our
Constitution and our American values and freedoms came through for us.” </P>
<P>Other zoning challenges, all invoking the 2000 law, have been filed by a Sikh
society that wants to build a temple in a low-density residential area of Yuba
City, Calif.; a Hindu congregation seeking permission to expand its temple and
cultural center on a busy highway in Bridgewater, N.J.; and a Muslim
organization that has been trying for years to build a mosque on land that the
local government in Wayne Township, N.J., now wants to buy for open space. </P>
<P>Seeking a Protective Balance </P>
<P>Critics of the 2000 law argue that the First Amendment itself has long
prohibited religious discrimination in zoning, and that such zoning decisions
could have been challenged just as successfully in the courts if the law had
never been passed.</P>
<P>When Congress considered the law, “what was actually being discussed was ‘How
do we make sure churches don’t get discriminated against,’ ” said Marci A.
Hamilton, a law professor at the Benjamin N. Cardozo School of Law at <A
title="More articles about Yeshiva University"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/y/yeshiva_university/index.html?inline=nyt-org">Yeshiva
University</A> in Manhattan and the author of “God vs. The Gavel: Religion and
the Rule of Law” (Cambridge University Press, 2005), which calls for closer
scrutiny of some religious exemptions, especially those affecting land use and
family law. </P>
<P>“Unfortunately, the answer was to give such an expansive remedy that not only
are they not getting discriminated against, but they are now capable of
discriminating against all other landowners,” added Professor Hamilton, who is
advising Boulder County in its case.</P>
<P>The financial stakes in the Boulder lawsuit are large.</P>
<P>Under the 2000 law, if the county loses, it will have to pay not only its own
legal bills but also those of the church. If the church loses, it will sacrifice
the money it has spent on legal, architectural and public relations fees, but it
will not be required to pay the county’s legal bills. And unlike the county, it
could seek free legal help from various religious advocacy groups, although it
has not yet done so. </P>
<P>While a county victory might provide other local governments with a template
for defending against similar challenges, some lawyers fear that if Boulder
County, with its long history of careful land-use planning and its
environmentally demanding voters, cannot successfully argue that preserving open
space is a “compelling public interest,” few local governments could.</P>
<P>“Religious institutions have realized that land-use authorities are
vulnerable to the threat of litigation,” David Evan Hughes, the deputy county
attorney, asserted in the <A title="county’s court filings"
href="http://www.nytimes.com/packages/pdf/business/20060924complaint.pdf">county’s
court filings</A>. Without greater clarity from the courts, he continued, the
new law’s reach “will expand to the point where religious institutions are
effectively dictating their own land-use regulations.”</P>
<P>Like most Boulder County residents, several church members said they cherish
the open space preserved by the county’s past land-use decisions. But they think
the county was wrong to reject the church’s proposal.</P>
<P>Lanny Pinchuk, a church member who formerly served on the county planning
board, praised all that the county has done to preserve the environment. “But
you can’t keep people from coming to the religious institution of their choice,”
he said. “I feel that is just, well, un-American.”</P>
<P>Church leaders and members said their current proposal was the “forever
plan,” the last expansion the church would make on this site.</P>
<P>But they all struggled to explain why it is an unconstitutional burden for
them to have to turn away newcomers now when, if they continue to grow, they
will inevitably have to turn away people when their “forever” building is
full.</P>
<P>“At some point, we’re going to have to say we can’t accommodate any more; I
mean, we’re not going to have a 100-story building over there,” said Gerry Witt,
a founding church member who has recently put his house on the market so he and
his wife, Carole, can move to a less developed area on the western slope of the
Rockies.</P>
<P>“So is there any limit?” He thought a moment, then answered his question.
“Yes,” he said. “There’s God’s limit. When he says, ‘You’re at your limit,’
that’s when we will stop.”</P><NYT_AUTHOR_ID></NYT_AUTHOR_ID>
<P id=authorId>Andrew Lehren conducted computer analysis for this series, and
Donna Anderson provided online research
assistance.</P></DIV></FONT></DIV></BODY></HTML>