In Part I, the history of the First Amendment’s prohibition against the establishment of religion or abridging the free exercise thereof was examined. With today’s more literal reading of the First Amendment, incorporating religious tolerance, Part II examines a) what constitutes a church for constitutional and regulatory purposes, b) the RLUIPA and c) the impact of the First amendment and RLUIPA on attempted local restrictions on churches.
What is a Church
For First Amendment purposes the courts have devised a 14-point test. De La Salle v. United States. To qualify as a church, the entity does not have to meet all 14 criteria, but qualifies based on a preponderance of the enumerated factors:
1. Distinct legal existence
2. Recognized creed and form of worship
3. Definite and distinct ecclesiastical government
4. Formal code of doctrine and discipline
5. Distinct religious history
6. A membership not associated with any other church or denomination
7. An organization of ordained ministers
8. Ordained ministers selected after completing prescribed studies
9. Literature of its own
10. Established places of worship
11. Regular congregations
12. Regular religious services
13. Sunday schools for religious instruction of the young
14. Schools for the preparation of its ministers
The principal criticism of the 14-point test has been expressed as,
“Given the variety of religious practice… Attempts to use a dogmatic numerical approach might unconstitutionally favor established churches at the expense of newer, less traditional institutions.”
In addition to the First Amendment court test, regulatory recognition has taken effect at the federal level, notably as part of the Internal Revenue Code and IRS regulations. Churches and “religious organizations” are recognized IRS 501(c)(3) entities. Churches and religious organizations are not the same, churches having preferred status. The IRS makes churches tax exempt and contributions to them tax deductible. Based on court decisions and Internal Revenue Code section 7611, IRS intervention into church activities is restricted. The IRS may not audit or examine a church unless there is a reasonable belief that the organization does not qualify for its exempt status or there is a reasonable belief that it is not paying taxes on unrelated business income.
The flip side of churches’ special status is that they are not permitted to engage in “substantial” lobbying activity or to participate directly or indirectly in political campaigns. This, from the IRS Tax Guide for Churches and Religious Organizations at page 7:
Under the Internal Revenue Code, all IRC section
501(c)(3) organizations, including churches and religious
organizations, are absolutely prohibited from directly or
indirectly participating in, or intervening in, any political
campaign on behalf of (or in opposition to) any candidate
for elective public office. Contributions to political campaign
funds or public statements of position (verbal or
written) made by or on behalf of the organization in favor
of or in opposition to any candidate for public office
clearly violate the prohibition against political campaign
activity. Violation of this prohibition may result in denial
or revocation of tax-exempt status and the imposition of
certain excise tax.
RLUIPA
RLUIPA is the Religious Land Use and Institutionalized Persons Act. It became law in 2000 and strictly limits interference with placement, size and structure of religious buildings. The law prohibits local governments from imposing regulations that place a “substantial burden” on religious institutions without a demonstrable “compelling interest.”
The act has been used to protect the expansion of mega-churches as well as ending restrictions on churches in residential areas. The American City and County website describes the impact of RLUIPA on local decision making,
“RLUIPA allows religious institutions that challenge local zoning laws in court to recoup their attorney’s fees from the cities if they win, says Marci Hamilton, New York City’s Cardozo School of Law professor and local government advisor on First Amendment issues. Therefore, governments are motivated to settle early to avoid the possible cost, Hamilton says, and threats of RLUIPA lawsuits are forcing cities to abandon their own zoning regulations. “The federal government is saddling [cities] with costs they shouldn’t have to bear,” Hamilton says.”
The other side of RLUIPA is described in the same article,
“RLUIPA proponents say it levels the playing field between religious and secular interests. Local officials often deny proposals from religious institutions for many reasons, says Anthony Picarello, vice president of the Washington-based Becket Fund for Religious Liberty, which litigates in favor of RLUIPA claims. There could be pressure from residents opposed to a church’s request, or officials may be reluctant to lose developable land to non-taxable entities. “It is a grave mistake [for cities] to address their financial woes on the back of churches,” Picarello says.
A solid discussion of the mega-church issue can be found here.
Local Restrictions in Today’s Legal Environment
Shortly after enactment of RLUIPA, and with the First Amendment as backdrop, New York City was challenged by the Fifth Avenue Presbyterian Church. The City was running off and arresting homeless people sleeping on the church steps. The City argued that the church was not designated or licensed as a shelter and that it was in violation of NYC’s zoning regulations. In a unanimous decision by a three judge panel of the Second Circuit Court of Appeals, the church prevailed. Of note, one of the members of the three judge panel was now Supreme Court Justice Sonia Sotomayor. Full written opinion here.
That decision surely bears on the current decision making process with the Cordoba House project several blocks away from the World Trade Center terrorist attack. But the issue is not confined to New York City. Nor is it confined to mosques. In Millburn, New Jersey, residents are asking the city to stop the building of an Orthodox synagogue or force it to be built in a different location. The town has already lost one legal challenge to the rabbi in question. The City of West Palm Beach, Florida, has backed away from local zoning restrictions that would have limited the size and seating capacity of churches in residentially zoned areas. And, in Colorado, attempts to limit mega-church expansion have been successfully repelled. See article linked above.
While the Cordoba House project, including a mosque, has received national attention because it is an Islamic house of worship in a particular location, it is not unique in facing community resistance. But with the modern literal conception of religious freedom as contained in the First Amendment, or under RLUIPA, or the combination of both, the City of New York has taken the appropriate legal action in permitting the project to go forward. In the process they will save taxpayers untold future legal expense, and may well be remembered in history for their political courage in upholding the virtues of religious liberty and tolerance.
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.