Court records show U.S. zoning laws are used disproportionately to block construction by smaller, less popular churches, a Brigham Young University law professor says.
W. Cole Durham Jr. told the House Judiciary Committee Tuesday that records suggest vast indirect religious persecution - and Congress should stop it through a bill to restore safeguards for religious freedom that were struck down by the Supreme Court last year.Durham said he and colleagues at BYU compiled data on all the court cases they could find nationally involving churches - big and small - against local planning and zoning boards.
"If land-use laws were being applied in a neutral fashion, one would expect roughly equal treatment" of them, he testified.
"But, in fact, the situation is quite different. Minority religions representing less than 9 percent of the population were involved in over 49 percent of the cases regarding the right to locate religious buildings at a particular site," he said.
They were also involved in 33 percent of cases resulting from efforts to expand buildings to offer such things as welfare services and homeless shelters.
"There may, of course, be other factors that explain some of the disparity, but the differences are so staggering that it is virtually impossible to imagine that religious discrimination is not playing a significant role," Durham said.
He added that using public health and safety laws to persecute churches indirectly dates back to colonial times - when Massachusetts Bay Colony leaders disliked attacks on clergy by resident Anne Hutchings during meetings she held at her home.
He said that instead of attacking her views directly, they argued that her meetings attracted so many people that it caused disorderly conduct - and used that to have her banished.
"In a modern setting, planning authorities would have complained of inadequate parking, traffic problems and other signs of `intensive' land use" to attack her, he said.
Durham said patterns show smaller churches often have building requests - which they often even try to tailor to suggestions by city officials - denied as local opposition mounts, while larger groups have similar requests approved without problem.
An example, he said, was an Islamic Center proposed in Starkville, Miss. It was long delayed and moved from site to site because of opposition. Months after a site was finally approved, the city ordered services stopped there because of complaints.
"What made this whole course of action particularly galling was that there was a residence next door that was used as a worship center for Pentecostal Christians. This group caused more noise, provided less parking and in general seemed less deserving of a zoning exception than the Islamic Center. Five more churches were located within a quarter mile of the center," he said.
A local judge originally ruled that the city's order didn't infringe on freedom of religion because it did not "preclude students from purchasing cars and driving to a worship site located" outside the city. That was overturned on appeal.
Durham testified in support of a bill - whose lead Senate sponsor is Orrin Hatch, R-Utah - to restore some protection struck down by the Supreme Court in a case where a small Texas town sought to prevent expansion of a Catholic chapel by using zoning and historic preservation laws.
The court ruled that Congress had improperly tried through Hatch's earlier Religious Freedom Restoration Act to create new rights that went beyond protection intended in the First Amendment's freedom of religion.
Sponsors say the new bill is tailored to follow the Supreme Court ruling, and would require local governments not to interfere with religion unless they have an overriding, compelling reason (such as protecting health), and then do so in the least restrictive manner possible.
Ironically to protect religion, the bill depends on the Constitution's interstate commerce clause - and prohibits undue burdens on religious exercise that affects interstate commerce (such as bringing in building supplies). That clause was similarly used for much of the nation's civil rights laws.