Establishing a buffer zone: the proper balance between the First Amendment religion clauses in the context of neutral zoning regulations.

• Author: Brown, Kenneth J.

INTRODUCTION

The genius of the United States Constitution lies not only in what it contains, but also, ironically, in what it omits. Because it is merely a skeletal framework, the Constitution permits the specific nature of its own application to vary with the social, cultural, and political changes that inevitably accompany the progression of time.(1) While this has allowed the document to transcend the changing circumstances brought by the centuries, such longevity has been realized through the imposition of a burden upon each generation to redefine and reinterpret the many balances and compromises it strikes.

Among these balances is one that constitutes the focus of this Comment. The First Amendment guarantees individuals the right to exercise freely their religious,(2) convictions, yet it is also clear in its pronouncement that "Congress shall make no law respecting an establishment of religion."(3) Despite being intended as means to the common end of securing "religious liberty,"(4) the Free Exercise and Establishment Clauses often find themselves at odds with one another, especially as state efforts to promote and secure free exercise creep closer to the line demarcating the institutionalized preference of religion over "irreligion."(5) When this threshold is crossed, the Establishment Clause mandates the invalidation of such governmental action.(6) Indeed, the principles underlying these clauses have clashed on the federal level, in the context of congressional enactments aimed at securing religious liberty,(7) and on the state level regarding, for instance, school prayer.(8) The potential for significant conflict between them also exists in areas governed primarily by local regulation,(9) and zoning is foremost among these likely arenas of antagonism.

There may be no power at the disposal of local government more capable of affecting the rights and abilities of individuals and groups to engage in given activities than zoning.(10) A municipality's zoning regulations may restrict the geographical areas of the municipality in which activities may be conducted; the size of properties on which those activities may transpire; the types of facilities that may be required on those properties if they are to be validly undertaken; and the conditions, such as hours of operation, under which they may be conducted.

Of course, zoning regulations have the potential to restrict secular and nonsecular activities alike. However, many jurisdictions have, to varying degrees, facilitated the implementation and expansion of religious uses to an extent not demonstrated when only secular uses have been involved. Indeed, such favoritism has been mandated by federal statutory law, most notably by the Religious Land Use and Institutionalized Persons Act of 2000.(11) Upon introducing this bill, Senator Orrin Hatch indicated that "[a]t the core of religious freedom is the ability for assemblies to gather and worship together.... Finding a location to do so, however, can be quite difficult when faced with pervasive land use regulations."(12) Accordingly, this statute sharply curtails the ability of localities and municipalities to enforce zoning ordinances "that impose[] a substantial burden on the religious exercise of a person."(13)

More frequently, this sort of favoritism has been the product of both federal(14) and, especially, state common law.(15) Specifically, common law maxims requiring the waiver or abnormally flexible application of dimensional and use regulations of all sorts--including minimum building set-back and lot area requirements; maximum floor-area ratio and lot coverage requirements; height and parking limitations; and occupancy ceilings, to name only a few--entail the potential to affect results of this preferential variety. More fundamentally, several jurisdictions feature jurisprudential regimes that are notable for having institutionalized a positive general predisposition toward religious land uses. Often assuming the form of a maxim that nonsecular uses will be considered presumptively valid, this pro-religious stance constitutes preferential treatment in and of itself. Moreover, it may underlie determinations that any particular zoning requirement is to be relaxed where a religious land use is involved. This Comment is concerned with the applicability of zoning regulations generally to religious land uses, and as such will not focus upon any specific type of regulation.

In some states, including New York, a strong presumptive validity attaches to religious uses.(16) In others, like California, such uses enjoy no preferential treatment whatsoever.(17) In many other jurisdictions, various intermediary positions have been espoused, all entailing the reservation of some special status or preference for religious land uses.(18) This Comment argues, however, that this judicially sanctioned favoritism is, as a matter of historical interpretation, modern jurisprudence, and religious liberty-focused policy considerations, a violation of the Establishment Clause of the First Amendment. Instead of sanctioning such institutionalized preference for religion over irreligion, a more appropriate balance between the First Amendment Religion Clauses in the zoning context could be struck by ensuring that religious uses are subject to neutral laws of general applicability. This is an indispensable means of effectuating the end of religious liberty that is so vital to our shared constitutional tradition.

In demarcating this as an appropriate resolution to the conflict between the First Amendment Religion Clauses, the lessons of this Comment hopefully will be generalizable and will suggest a more appropriate balance between disestablishment and free exercise in other contexts within our legal order.

The Comment is structured as follows: Part I outlines the First Amendment problems posed by the exemption of religious land uses from neutral zoning laws of general applicability. Part II deals with several aspects of the historical background and intellectual traditions which should inform modern interpretations of the First Amendment Religion Clauses. Here the Comment focuses especially on the impact of (1) the ideas of John Locke and European enlightenment philosophers, (2) the early American colonial experience, (3) the ideas and experiences of Roger Williams as representative of the early nonsecular reformist spirit, and (4) the ideas and experiences of James Madison. Part III analyzes constitutional and policy-based justifications for the exemption of religious land uses from neutral zoning laws. The conclusion reached is that neither the Free Exercise Clause nor any extralegal notion that religious uses are somehow desirable or inherently beneficial to a community justify the exemption of places of worship from such regulations. Finally, Part IV suggests that rendering all land uses, regardless of their ecclesiastical character, subject to truly neutral zoning laws is actually an indispensable means of protecting religious liberty. This suggestion is presented in the context of some of the more prevalent strains of the contemporary discourse on the proper balance between the First Amendment Religion Clauses.

1. THE PROBLEM OF EXEMPTING RELIGIOUS LAND USES FROM NEUTRAL ZONING LAWS OF GENERAL APPLICABILITY

   Conceptually, the troublesome preference for religious land uses is quite simple, and is effectively summarized by Terry Rice within the context of New York common law:

   It has been clear, since the 1956 decision in Diocese of Rochester v. Planning Board, that a zoning law may not exclude educational and religious uses from a community's residential districts.... [T]he conclusion [of the New York Court of Appeals in Trustees of Union College v. Schenectady City Council] is consistent with the forty-year-old determination of Diocese of Rochester, [as] the decision reinforces the obligation of New York municipalities to explicitly permit religious and educational uses in all of its residential zoning districts by right or special permit. "The New York courts have consistently taken an expansive view of what constitutes a religious use and have held that a religious use is more than just prayer and worship.... The activities constituting religious or accessory uses which are entitled to preferential treatment have also been broadly construed."(19) Decisions like those discussed by Rice, both in New York and the many other states wherein such preferences are part of the governing common law,(20) are the product of the notions that "religious institutions ... [make] unique contribution[s] to the public welfare and because of the First Amendment's Free Exercise Clause."(21) The states are virtually uniform in holding that religious land uses may be required to conform to neutral zoning regulations, fire and building codes, and the like.(22) Yet the contradictory judicial practices of deeming such uses presumptively valid or declaring the impermissibility of their complete exclusion from residential zones have been predicated upon "the concept that such zoning restrictions must yield to the right of freedom of religion protected by the [F]irst and [F]ourteenth [A]mendments to the United States [C]onstitution and comparable provisions in state constitutions where the zoning regulations unreasonably hinder or restrict religious activities."(23)

   As this Comment cautions, however, the fact that a facially neutral zoning ordinance serves to exclude a church from a residential zoning district does not indicate that the law is per se an unconstitutional hindrance of religious activities. After all, municipalities are free to impose neutral rules of general applicability upon places of worship within their perimeters. Upon what basis, then, could rest a rule that declares neutral zoning laws to be legally invalid where those regulations, when applied in a genuinely nondiscriminatory fashion, serve to exclude places of...