Constitutional Review of Building Codes and Zoning Ordinances Applied to Parochial Schools: City of Sumner v. First Baptist Church

• Jurisdiction: United States,Federal,Washington
• Citation: Vol. 7 No. 03
• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 3SPRING 1984

NOTE

Constitutional Review of Building Codes and Zoning Ordinances Applied to Parochial Schools: City of Sumner v. First Baptist Church

I. Introduction

In City of Sumner v. First Baptist Church,(fn1) the Washington Supreme Court held that when a parochial school is closed because its sponsoring church financially cannot comply with school building code standards,(fn2) the building code burdens the congregants' constitutionally protected religious freedom.(fn3) Thus, the court ruled that when this financial burden is established, the building code, as applied to the parochial school, is invalid unless the code can withstand strict judicial scrutiny.(fn4)

The court also held that when a City Planning Commission's refusal to issue a special use permit prevents a church from operating its school in the church's residential district location, the Commission's application of the city's zoning ordinance(fn5) infringes upon the congregants' religious freedom.(fn6) Thus, the court ruled that the zoning ordinance, as applied to the parochial school, also is invalid unless the denial of the permit could withstand strict judicial scrutiny.(fn7)

The First Baptist Church court should not have required strict scrutiny of either the building code or the zoning ordinance applications. In reaching its decision, the court incorrectly analyzed Supreme Court decisions construing the free exercise clause,(fn8) and drew mistaken parallels between the two Sumner ordinances and laws that the Supreme Court has identified as burdening religious freedom.(fn9) The court should have distinguished between generally applicable laws such as Sumner's building code and zoning ordinance that, in regulating the peripheral aspects of religious conduct, incidentally make a religious practice less convenient or more expensive,(fn10) and laws that effectively penalize the practice of religion.(fn11) The court should have required the trial court to review the Sumner ordinances under the standards for laws that regulate the time, place, and manner of exercising first amendment freedoms.(fn12) Using these standards to review the ordinance would have provided a reasonable approach to protecting religious practices from the unnecessary, unintended effects of government regulation, and would have helped insure that the generally applicable regulations were applied in a nondiscriminatory manner.(fn13)

II. Background

The First Baptist Church of Sumner ("Church") has operated for over seventy-five years at its present location in a residential section of Sumner, Washington.(fn14) In 1978 the church membership, in accordance with their religious convictions, established a church-operated school, the Washington Christian Academy ("Academy").(fn15) The Academy was housed in the church basement.(fn16)

The City Building Inspector found that the church building did not meet the city's building code requirements for schools, including several of the code's safety standards.(fn17) However, the building previously had passed inspection for use as a church.(fn18) The Church attempted to comply with the building code by making several improvements,(fn19) but claimed it was unable to finance the major structural improvements necessary to satisfy the code's requirements.(fn20)

The Academy also violated the city's zoning ordinance. The Church had not obtained the special use permit required to operate a school in a residential neighborhood,(fn21) and also had failed to provide the number of off-street parking spaces required by the ordinance.(fn22) The city sought, and was granted, an injunction closing the Academy until the school complied with the building code and the zoning ordinance.(fn23) The injunction did not affect the building's use as a church.(fn24)

The trial court granted the injunction upon determining that the church building did not meet the building code's requirements for schools, without determining whether the violations actually posed a danger to health or safety.(fn25) The trial court rejected the Church's claim that, because the code was enforced in an unnecessarily strict manner and imposed prohibitive costs, the code unconstitutionally infringed upon the congregants' religious freedom.(fn26) The trial court also rejected the Church's claims that enforcing the zoning ordinance to close the Academy violated the free exercise clause(fn27) and that the Academy was exempt from both the building code and the zoning ordinance because of grandfather clause exemptions.(fn28) The Washington Court of Appeals, Division II, stayed the city from enforcing the injunction pending appeal to the Washington Supreme Court.(fn29)

III. The Washington Supreme Court's Decision

The Washington Supreme Court held that the trial court erred in rejecting the Church's first amendment claims.(fn30) The court remanded the case for further fact finding, stating that if the "practical effect" of the building code were prohibitively to increase the cost of operating the Academy, the code would incidentally and indirectly infringe upon the Church's school ministry.(fn31) The supreme court held that, in that context, the code would burden the congregants' religious freedom, requiring strict scrutiny to test the code's validity.(fn32) The court also required strict scrutiny review of the zoning ordinance as applied to the Academy if the "practical effect" of that law were to close the Academy.(fn33) The controversiality of the First Baptist Church decision is reflected, in part, in the six separate opinions filed in the case.(fn34)

IV. Constitutional Analysis

A. Introduction

Under the Supreme Court's strict scrutiny balancing test, a party claiming protection under the free exercise clause must first prove that the challenged law has substantially burdened the free exercise of his religion.(fn35) If such a burden is shown(fn36) then the Court, under the second part of the test, determines whether the state has demonstrated a compelling interest in enforcing the challenged law.(fn37) Unless the state shows this compelling interest, the law is invalid.(fn38) Even when the state has a compelling reason for the law, the law is invalid if the state could accomplish its compelling objectives by alternative means that would lessen the burden on religious freedom.(fn39)

The Washington Supreme Court held that if application of the zoning ordinance prevented the Church from operating the Academy in its building, the ordinance would burden the congregants' religious freedom.(fn40) The court also held that if the financial effects of complying with the building code significantly affected the Church's ability to operate the Academy, the building code would substantially burden the congregants' religion. Thus, the Church would have satisfied the first part of the balancing test with respect to both ordinances.(fn41) Although the court remanded the case for determination of whether these burdens existed, the court's opinion treated the burdens as established.(fn42)

In concluding that the Church satisfied the first part of the test, the court had to make two determinations. First, the court had to determine whether the activity for which the Church claimed protection was religious in nature.(fn43) Because the city conceded that the Academy involved a religious practice,(fn44) the Academy satisfied the religious-nature requirement.(fn45) The second determination the court had to make was whether the zoning ordinance and the building code burdened the congregants' religious freedom.(fn46)

Determining whether a law burdens a religious activity involves evaluating whether the law's effect on the religious activity is substantial,(fn47) and also whether the effect on the religious activity should be treated as governmental action subject to constitutional limitations.(fn48) The court found that the impact of the zoning ordinance and the building code on the Academy would be substantial if the laws' "practical effects" were to prohibit the Church from operating the Academy.(fn49) The difficult question for the court was whether the ultimate impact upon the Academy of the generally applicable laws should be subject to the limitations of the free exercise clause.(fn50)

The court decided that the impact of applying the zoning ordinance to forbid the Church from operating the Academy in the Church's basement was subject to first amendment limitations. The court also determined that the building code's financially prohibitive impact upon the Academy burdened the congregants' religious freedom.(fn51) The court acknowledged that both laws only indirectly and incidentally burdened the Academy, because compliance with the laws would not violate a fundamental tenet of the church members' faith.(fn52) Yet, the court attempted to draw analogies between the impact of the Sumner laws upon the Academy and the burdens on religious freedom that the Supreme Court addressed in Wisconsin v. Yoder(fn53) and in Thomas v. Review Board.(fn54) The analogies are not convincing.(fn55)

In Yoder, the Supreme Court held that Wisconsin's compulsory attendance law violated the Amish's right to exercise their religion freely.(fn56) Although the Amish had no explicit religious tenet prohibiting their children from attending public school beyond the eighth grade,(fn57) the law...