Quiet Crusade
Seize a church school, ban a prayer meeting, close down a synagogue…zealous bureaucrats are strangling religious liberty.
Edward C. Horne stands on the steps of the Church of St. Paul and St. Andrew. It is a bright Tuesday morning in early June, sunny enough to make even Manhattan seem cheerful. As he takes in the air, the young Methodist pastor greets several elderly men and women who have come to pay $1.00 each for lunch and some socializing.
Above, workmen climb around on the church's red tile roof, removing chunks of masonry that car exhaust and rain have torn away from the walls and gutters. When the work is done, passers-by will be safe from falling rock, but dark holes will still stare out at the brownstones of the Upper West Side.
Inside, only the small lobby and closet like office are lit; the gloomy hallway that faces the door makes the church feel abandoned, shut down. Little old ladies—en route to lunch in the basement social hall—pick their unsteady way down narrow stone steps whose edges seem to have been nibbled away.
Horne, a conciliatory sort with reddish hair and beard, works two flights up—in the pastor's study, an island of light, space, and air conditioning. He came to the church a little over a year ago and has attracted a growing number of congregants, mostly in their 20s and 30s. Average Sunday attendance has swelled from 50 to 90, and pledges are up dramatically, to $90,000 for this year.
But 90 worshipers get pretty lost in a sanctuary designed to seat 1,400 (if you count the balcony, closed since the late '70s when it was condemned by the city as a safety hazard). And $90,000 doesn't go far when the church faces $5 million or more in renovation costs. This prospective financial ruin comes courtesy of the New York City Landmarks Preservation Commission, an unelected government body that has in effect turned the Church of St. Paul and St. Andrew into a museum. In the Soviet Union, where such transformations are common practice, the state at least pays for upkeep. Not so in New York.
Like many congregations throughout the nation, St. Paul and St. Andrew's has become a casualty in an unreported war—a war between religious freedom and regulations that are ostensibly economic. It is a war in which believers have few allies and bureaucrats have many. And it is a war that the regulators are winning.
St. Paul and St. Andrew's would like to tear down most of its existing structure, built in 1895, and erect a smaller church. Even worse, in antidevelopment New York, the congregation would like to let a developer build a (taxable) high-rise condominium complex on part of its lot. Income from the project would put the church on firmer financial ground and allow it to expand its mission programs. In a visionary moment, Horne imagines the church using the money to buy a single-room occupancy hotel, or SRO, to provide housing for the neighborhood's poor and homeless.
Before church members could even vote on such a rebuilding plan, however, the Landmarks Commission got wind of it, and in November 1981 the commissioners declared this rather unattractive mishmash of Romanesque and Renaissance styles an architecturally significant landmark. It is now illegal for the congregation to alter the exterior of its property in any way without the commission's approval. Such designations, common in New York City, are about 40 times more likely to hit churches and synagogues than other buildings.
Almost immediately after its building was declared a landmark, St. Paul and St. Andrew's sued on First and Fifth Amendment grounds, claiming that the designation infringed on the free exercise of religion and also constituted government taking of property without just compensation. Almost five years later, a federal appeals court ruled 4–3 against the church; the U.S. Supreme Court refused to hear the case. Now, unless the church can persuade the Landmarks Commission to grant it a rare "economic hardship" exemption, St. Paul and St. Andrew's will be forced to spend millions on maintenance and to stay in a building whose odd-shaped rooms, narrow stairways, and huge sanctuary do not suit its needs.
In a case that could affect St. Paul and St. Andrew's, a wealthier Episcopal church, St. Bartholomew's, is fighting the Landmarks Commission in federal court; the commission denied its appeal for a hardship exemption, in effect telling the congregation to drain its endowment to maintain its building. The case has become a cause célèbre in New York, with politicians lining up to denounce the church for wanting to tear down its parish house and build a high-rise office building on the property. Again, the church would use part of the building and receive income from the rest.
"This case is not about religion. It is about real estate," declares an amicus brief filed by 10 preservationist groups opposed to St. Bart's. It notes that "an exemption of all property owned by religious organizations would severely undermine the governmental interests promoted by historic preservation. Religious buildings often occupy central locations in historic districts and frequently offer irreplaceable examples of spiritual and cultural values." In other words, the very fact that the landmarks law disproportionately affects religious buildings—and the congregations that own them—serves the preservationists as ammunition.
The consequences for religious exercise can be devastating. "The Landmarks Commission has the right to tell a church that it has to bleed itself of all resources and put them into its building before it can plead hardship," explains Horne. "Even people who support preservation are appalled that there's no money that comes along with it. The Landmarks Commission has a right to say that we keep the church as a museum for the community."
The Church of St. Paul and St. Andrew is an unlikely champion of property rights. It is emphatically liberal, its ministry a mixture of prayer groups and poverty programs, worship and weapons protests. "Housing is a right," proclaims a flyer on its bulletin board. But this haven for New York liberals is caught up in a widespread struggle. Religious groups and individuals are under government attack—not directly by laws that prohibit their beliefs but, more insidiously, by economic regulations that cripple the free exercise of those beliefs.
Such regulations span the country and the full range of economic and religious life: from landmarking in New York, where 11 mayor-appointed aesthetes seize control of church budgets and buildings; to rent control in Santa Monica, California, where the city blocked a church's plans to build a parsonage; to zoning in Colorado Springs, where a minister was sentenced to 90 days in jail and a $1,000 fine (both later stayed) for holding services in his home; to child labor laws in Mint Hill, North Carolina, where federal authorities cracked down on the Shiloh True Light Church's longstanding vocational training program; to antidiscrimination statutes in Chico, California, where a woman is fighting for the right not to rent to unmarried couples, whose lifestyle offends her religious beliefs; and on and on.
Like religious restrictions throughout the ages, these regulations are created by the majority and, however inadvertently, trample on minority rights. Outside of such planning-happy communities as New York, Santa Monica, and Brookline, Massachusetts, they are much more likely to hit Jehovah's Witnesses, Seventh Day Adventists, Hassidic Jews, and adherents of obscure newer sects than to threaten the mainstream members of the National Council of Churches or the Synagogue Council of America. But by expanding the power of the state to control an intensely private domain—and one that can act as a countervailing influence to state authority—these regulations threaten all citizens, believers and nonbelievers alike.
At issue is the very meaning of religious freedom. Is it merely a matter of otherworldly dogma that offends no one and breaks no laws, because it has no practical consequences? Or does religious freedom also entail protecting the practices that stem from faith? And if so, can religious freedom—or, for that matter, any personal freedom—be divorced from property rights?
These are questions that traditional advocates of civil liberties, notably the ACLU, have studiously ignored. But they are the questions that will determine the future of free exercise in this country. Already, federal courts have ruled several times that the government's right to regulate property must come before citizens' rights to practice their religion. As such precedents build on each other, the First Amendment's guarantee of free exercise becomes narrower and narrower, until the only place individuals can exercise freedom of religion is within their own skulls—no outward expression is allowed.
Isaac Farhi had gotten a new Torah scroll, and the Syrian Jews of Deal, New Jersey, had turned out to celebrate. As 200 people joyfully marched down the street, carrying the sacred scroll, Farhi's neighbors looked on in horror. What had become of their quiet residential community?
Not much, actually. The procession was a one-time outburst of fervor, an exuberant celebration of a rare event. It broke no laws and gave no one grounds to complain to the authorities. But nonetheless, Isaac Farhi soon found himself in court.
An ordained rabbi who teaches in a local religious school, Farhi is one of many Syrian Jews who have migrated from Brooklyn to this town of 2,000 in recent years. Strictly observant of Jewish law, the newcomers have transformed what was formerly a typical Jersey shore community—half Irish Catholics, half "regular," European Jews.
"There is a conflict between longtime residents and this new influx of this one religious faction, which has very orthodox religious observances," explains attorney Richard B. Ansell, a Deal native who has represented Rabbi Farhi and other Syrian Jews. The newcomers are, he says, "used to having their religious observances at their fingertips, so to speak, at every street corner." For these people, religion is not an isolated activity or simply a matter of conscience. It is an integrated way of life.
In Farhi's case, that way of life includes holding daily services in one room of his multistory home. Attendance is sparse; on weekday mornings, worshipers sometimes struggle to round up the required minyan of 10 men, and even Sabbath and holiday services attract only 15 to 25 people. Forbidden by religious law to ride on the Sabbath or holidays, worshipers create none of the traffic or parking problems that sometimes annoy neighbors of religious institutions.
Nevertheless, in 1983, one of Farhi's more contentious neighbors dragged him before the local zoning board—complaining not about the procession but about Farhi's nonintrusive daily services. According to court records, "the entire matter was precipitated when a few of Rabbi Farhi's neighbors complained to town officials that car doors could be heard slamming on weekday mornings and that from the street the congregants could be heard saying prayers." As such authorities tend to do, the board ruled in favor of the complaining neighbor, declaring that Farhi was illegally operating a synagogue in a residential area.
Normally, one might expect a pluralistic society to take the live-and-let-live attitude exemplified by a Lakewood, California, man recently interviewed by the Los Angeles Times. Asked what he thought of a Cambodian Buddhist temple meeting in the house next door to his, Larry Merrell, who attends a church where people speak in tongues, said, "We accept it. We make some pretty weird sounds at our church, too." But zoning laws undermine such tolerance by allowing even a single disgruntled neighbor to precipitate a crackdown on religious practice.
So cases like Isaac Farhi's are common. A man's home may be his castle—but he'd better not try turning it into a church. Since many zoning ordinances outlaw religious buildings in residential areas, and since zoning boards tend to be a bit imperialistic, shocked homeowners often find their living-room gatherings lumped in the same illegal category as buildings with parking lots and steeples. If you have 500 of your closest friends over every Sunday morning to pray, sing hymns, hear a sermon, and pass the offering plate, most people would call that a church. But what if there are only 10 people? That's no more intrusive than a bridge club.
"If you have 10 people over every Sunday morning for your Great Books discussion group, and you discuss life issues—the kind of things you discuss in a church—if that's allowed, aren't you discriminating against groups that meet on religious grounds?" asks William B. Hollberg, an Atlanta attorney affiliated with the Rutherford Institute, a legal group that specializes in defending religious freedom.
Says Farhi's attorney Ansell, "I don't care what you call it, or whether they want to be big and proud and call it a whole congregation—they've got three people coming there but they've got a big long name or something. I distinguish that from what you would consider a full-scale church or a full-scale temple."
But the courts generally do not see things that way. In a case very similar to Farhi's, the city of Miami Beach threatened to prosecute Naftali Grosz, an elderly Hassidic rabbi who held twice-daily services in his garage; Grosz and his family challenged the city's zoning ordinance as an infringement on their religious freedom. A federal appeals court—the highest court so far to rule on a conflict between zoning laws and home religious practices—upheld the ordinance, declaring that the Groszes' rights to free exercise were outweighed by the burden that would be imposed on the government by loosening zoning restrictions.
In Isaac Farhi's case, however, the New Jersey Superior Court broke with federal rulings and accepted Ansell's argument. New Jersey's constitution, the court declared, protects the right of citizens to hold small worship services in the privacy of their own homes: "The court cannot fathom a set of facts more illustrative of a principal, accessory, conditional and incidental use of a property as a residence than the use which Rabbi Farhi makes of his property. It is exactly this kind of instance—prayer in the privacy of one's home—that the drafters of our State Constitution sought to protect." Not all cases are so simple, however. What if Rabbi Farhi had wanted to build a full-fledged synagogue?
After years of worship in a storefront on a busy commercial street, the 175-member Lakewood, Ohio, Congregation of Jehovah's Witnesses was ready to move. Vacant land was rare in the Cleveland suburb, but in late 1972, the church bought a half-acre corner lot in a neighborhood of stately one- and two-family homes. According to court records, the design for the new building, or Kingdom Hall, "featured a low, square building with a rustic stone exterior intended to blend with the neighboring properties. The design, insofar as possible, preserved the trees on the land and sheltered the forty-two car parking lot from the homes nearby." The church, in short, planned to be a good neighbor.
But the zoning board refused to grant the church an exception to ordinances that bar religious buildings from virtually all of Lakewood's residential districts; such exceptions had been made in the past. After 11 years of court battles and repeated appeals to the board, the congregation made legal history—by losing in federal appeals court and thus establishing that communities have the legal right to zone religious buildings out of residential areas.
The tenor and language of the decision are disturbing, even more so than the result itself. For in their rush to uphold state control over private property, the judges anointed themselves theological arbiters as well.
"There is no evidence," sniffed the court, "that the construction of Kingdom Hall is a ritual, a 'fundamental tenet,' or a 'cardinal principle' of its faith. At most the Congregation can claim that its freedom to worship is tangentially related to worshipping in its own building. However, building and owning a church is a desirable accessory to worship, not a fundamental tenet of the Congregation's religious beliefs." Even a cursory survey of religious and architectural history would reveal that religious buildings, from the great cathedrals of Europe to the stark meetinghouses of New England, were specifically designed to augment and express religious convictions. Yet the judges held that building a church isn't "integrally related" to religious beliefs—it's a mere matter of finances and aesthetics.
This rather bizarre ruling is more easily understood in its legal context. Had the court decided that Lakewood's zoning law did in fact infringe on the free exercise of religious freedom, it would have then been obligated to apply the "Sherbert test," named after the 1963 Supreme Court decision in which it was established. This test, which applies to any governmental action that burdens religious practices or institutions, requires the state first to demonstrate a compelling governmental interest—maintaining a quiet residential neighborhood, for example—and to prove that it has pursued that interest in the least intrusive way possible. In zoning cases, this might mean regulating noise or parking directly rather than outlawing religious activities altogether.
The Lakewood case, by establishing a precedent that land-use regulation does not burden religious exercise and so is exempt from the Sherbert test, has sweeping implications. As Scott David Godshall noted in a 1984 Columbia Law Review article: "Absent a religion whose beliefs center on the land itself, any religious use of land may, under this analysis, be defined as secular and denied protection. The result, in other words, is a per se rule against application of free exercise analysis to church land use controversies. Like the New York landmark cases, this result opens up the possibility of restrictive regulation of free exercise rights through the medium of land use restrictions."
The courts' muddled thinking about free exercise stems from their muddled thinking about economics. Unless money actually changes hands from a religious individual to the government (a fine) or fails to change hands from the government to the individual (denial of an entitlement check), most judges see no penalty imposed on free exercise. In the Lakewood decision, for example, the appeals court cited two Supreme Court precedents to bolster its arguments.
In one, Jewish merchants who closed their stores on Saturday for religious reasons argued that "blue laws" forcing them to stay closed on Sunday imposed an unconstitutional penalty on the free exercise of their religion. They lost when the Supreme Court ruled—rather incredibly, considering the Christian origins of such laws—that "neither the purpose nor the effect of the law was to impede religious observation or to discriminate among religions" and that all the laws did was create "inconvenient economic burdens on religious freedom." But staying closed on Sunday is more than an "inconvenient" burden. It is a state-imposed cost, every bit as real as a fine. It burdens all merchants who would like to open on Sunday, but it doubly penalizes those who, for religious reasons, must remain closed on Saturday as well.
In the second precedent cited in the Lakewood case, the Supreme Court ruled that a Seventh Day Adventist couldn't be denied unemployment benefits because she refused to accept jobs that required her to work on Saturday. To "condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes her constitutional liberties," said the high court. Money changes hands, so the cost is real.
As in the Miami Beach Grosz case, presumption that an aggrieved group or individual—in this case the church—has to give an overwhelming reason for weakening the state's control. In our free society, however, it is the government that should have to give an overwhelming reason for encroaching on religious freedom and property rights. The shift in the burden of proof has grave implications for individual rights. As Godshall wrote in his law review article, "close examination of almost any otherwise valid law will reveal that it is tied to at least one extremely significant public value. Lined up against one of these large public values—public health or welfare or safety, for example—the demands of a religious group, especially a small one, often tend to shrink in comparison. Viewed in this manner, the balancing process may impose a bias against the religious interest; when the two interests are balanced, 'it is more than mere coincidence' that the state usually wins."
Classes started this fall at the Lynwood Adventist Academy, south of Los Angeles, as they have every fall since 1936. Once again, its 200 students have returned, carrying with them their parents' hopes for college and careers. Almost 90 percent of the academy's students—most of whom are black—go onto college; many win scholarships. They become doctors and scientists, teachers and ministers, lawyers and businesspeople, respected citizens who remember their school with affection and admiration.
But this year's students aren't sure they'll have a school much longer. For the Lynwood Unified School District has cast a covetous eye on the academy's 24-acre campus, with its shady lawns and neat gardens, and has made plans to seize it—to build a public high school on the same site, possibly even using some of the same buildings.
In December, the school board voted to condemn 20 acres of school property, leaving only the church building and parking lot next to the academy. The District would seize not only the high school but also the adjacent 200-student elementary school, church bookstore, and athletic fields. (The board had originally planned to build on a site that included a city park, but opposition from the city council persuaded it to drop those efforts.) Although its attorney did not return repeated phone calls, the school district's stake in the matter is obvious from row after row of portable classrooms lined up behind Lynwood High School, which was built to accommodate 1,000 students rather than its current enrollment of 2,800.
"I know of no other case where a public school has attempted to condemn the property of a private school, to move the public school onto the previously existing private school property," says Lee Boothby, general counsel for Americans United for Separation of Church and State, who is working with the Adventist Church on the case's constitutional issues.
The church has been offered about $8 million for its property, although Boothby says it would take more like $30 million to duplicate the current facilities—and land is scarce in built-up Lynwood. Condemnation of the school "is not only a burden on that ministry, it will probably eradicate it," says Boothby. "A church was built on the site because of a shared ministry—a teaching ministry and preaching ministry and also a social outreach ministry, because they have a social welfare ministry also on the same property—and now the state has made the determination as to what ministry shall occur in that particular city." A church, says the city, is all right; a church school is not.
Not surprisingly, students, parents, and alumni—not to mention nearby homeowners who fear their property values would plummet if a public school invaded their neighborhood—are determined to thwart the school district's plans. While the church fights condemnation proceedings in court, these people are taking to the streets. Almost 500 school supporters marched through town in July, passing in front of school board members' homes in an attempt to persuade them to change their votes. "We don't want to antagonize anyone, but we do want them to know we're serious about preserving that school," says Victoria Watts, who graduated from the academy in 1972.
This is an election year in Lynwood, as campaign posters throughout the city attest, and William B. Wright, Jr., the academy's principal for the last five years, has decided to enter politics directly. "I have not publicly made my announcement, but I am a candidate for the board of education," he says, with a self-deprecating laugh at the controversy his candidacy has caused. "There's been a furor about that—both pro and con—the issue being Lynwood Adventist Academy and why is the principal of the academy running."
Ironically, academy supporters are also working to have the school declared a historic landmark and therefore off-limits to the school district. So far, they've gained city support, but only a state or federal designation can stop the district. And, Wright admits, such a designation might conflict with future building plans. California's landmark regulation isn't as excessive as New York's, but such a step nevertheless indicates considerable desperation.
The people swept up in the fight to save Lynwood Academy are not for the most part experienced activists. They are ordinary people, confronted with an extraordinary threat. "I hate politics," says Watts. "I just want to get in there and save that school."
Evelyn Smith is also an unlikely crusader. She is a recent widow, a private, church-going good citizen who never suspected that the state of California would infringe on her religious beliefs. But then a more sophisticated, worldly-wise individual would have realized long ago that you don't buck the government—especially when it damns you with the charge of discrimination—and you certainly don't admit what you're doing and expect the First Amendment to protect you.
When a couple answered her ad to rent a duplex apartment in Chico, California, Smith asked whether they were married. Renting to "unweds" offends her religious beliefs, and she sees no reason to encourage the practice. The couple repeatedly assured her that they were in fact husband and wife, and she says the woman even offered to show her their marriage license. Trusting their word, Smith accepted a deposit on the one-bedroom apartment, whose large rooms, fireplace, and formal dining room make it something of a bargain at $325 a month, even in this low-priced college town north of Sacramento.
A few hours later, however, Smith got a call from the "husband," Ken Phillips. They weren't married, he admitted. "He said, 'What kind of settlement, what kind of compromise do you want to make?' " recalls Smith, speaking in staccato bursts. "I said, 'Well, I will be happy to return the deposit,' and he said, 'Is that it?' I said, 'Yes, I will do this. Since you gave me cash, I will meet you at the duplex and will return your same cash now. Or, if you want, I will write you a check and you'll get it a day from now.' So he said a check would be fine." Smith returned the $150 deposit along with a short note, thanking him for having "the courage to right a wrong." That, she thought, was the end of the matter.
Phillips had other plans, however. He filed a complaint with the California Department of Fair Employment & Housing, alleging that Smith had discriminated against him on the basis of his marital status. (A call to Phillips was returned by Bruce Hilliard, a rather belligerent state employee who acted as "neutral fact finder" in the case and who referred me to Jeff Gonzales, the more-conciliatory state attorney handling the case.) While not unknown, complaints based on marital status are rare, says Gonzales. Most cases allege racial discrimination or, less often, discrimination against families with children.
Since Phillips filed his complaint in April, Mrs. Smith has had several frustrating confrontations with the department, both with and without a lawyer. A Rutherford Institute attorney has now agreed to represent her on a pro bono basis—the taxpayers foot the bill for the other side.
For his part, Hilliard sees this as an open-and-shut case. "You cannot refuse to rent to someone because of his or her marital status and cannot force your religious beliefs upon them by refusing to rent," he wrote to Smith in April. "In this particular case, it is clearly evident that you discriminated against the Complainant due to his marital status." Gonzales, who hopes to resolve the case without filing a formal accusation, says that his preliminary reading of the facts indicates that discrimination did occur.
But Smith is undeterred. "As a little kid, I was brought up with a song I taught my grandkids, 'I'll stand alone on the Word of God, the B-I-B-L-E.'…The Lord doesn't call us all to the same thing. But with me, he's made me maybe a bullhead. My son said, 'I knew you wouldn't give in, you're too stubborn.' I'm a principled person. I don't give in easily, and I think, well, the Lord made me this way for a reason.
"I'm a little bit stronger than someone else who might go through the same thing. I think somebody else might have a heart attack over this. So I have to stand up and defend my rights with the idea that maybe somewhere along the way, it will protect somebody after me.
"I'm sure there are people who have lived together before they're married elsewhere. But I just ask that in my building, they don't do it. It offends me, and I don't want to encourage it, and I just think that I should have the right to choose whom I want."
Such deep-felt beliefs don't sit well with a state that expects religious faith to be of no more earthly consequence than one's favorite color or preference for chocolate over vanilla. But the right to hold such beliefs—and to choose to behave in ways that reflect them—is what the battle between economic regulations and religious freedom is all about.
It is also about the meaning and value of property rights—and the consequences of giving government broad powers to regulate what people can and cannot do on their land, or to seize that land outright. For in this struggle, we can see that civil and economic liberties are inseparable, that destroying the latter leads inevitably to the slow death of the former. Even the hallowed First Amendment has not withstood the onslaught of the regulators.
But suppose the courts begin to affirm free exercise rights—suppose they support St. Bartholomew's against the Landmarks Commission, or Lynwood Adventist Academy against the school board, or Evelyn Smith against the state of California. The regulatory gears that pull people into the courts will continue to turn. The First Amendment is not enough. As long as property owners must give a "good reason" why the government should not seize control of their property, must justify themselves to the state on demand, no activity—no matter how innocuous to others or precious to the individual—is safe.
Ultimately, the remedy is not to declare free exercise of religion a "good reason." That would simply force judges to determine what is or is not a valid religion. The only way to restore personal freedoms is to restore personal property—to attack the economic regulations themselves.
If owners were granted full control over their property—the right to rent to whomever they chose, to tear down or build when and where they chose, to determine what activities would take place on their property—then the Evelyn Smiths of the world would not have to claim special protection on the basis of religion.
Property rights—the rights of individuals to maintain and control private space in which they can exercise their beliefs, religious or otherwise—must underlie a pluralistic society. Without such rights, any group that can seize control of a zoning board, a city council, or a landmarks commission can force its values on the rest of the community. Under such a regime, religious groups have little choice but to battle for dominance of the public sphere; once in control, nothing could be more natural than for them, too, to impose their values.
To maintain a free marketplace of ideas—in which religious groups are important vendors—we must maintain a free marketplace, where buildings as well as books are not banned for inappropriate content. That means accepting some tensions, allowing people to use their property in ways of which we disapprove, even seeing an occasional cathedral torn down. But such compromises are preferable to constant struggles over who shall dictate how everyone will live. And they are much less dangerous.
Virginia I. Postrel is an assistant editor of REASON.