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Zoning battles endanger religious freedom, test spirit of law

Forty families in a central Tennessee community living some distance from a nearby city put together a plan for building a house of worship close to where they lived.

The 12,000-square-foot facility would be set on 14 acres near a park, with neighbors on only one side. There would be relatively modest worship space for 325 people and a fellowship hall and kitchen for meals and gatherings

Religious communities grew like this for centuries.

But the members of this community were Muslims and they had chosen to build in affluent Brentwood, Tenn., with a median household income more than three times the state average. Opponents raised concerns about traffic, potential flooding and unsubstantiated fears of ties to terrorism.

Then town officials indicated they would require a left turn lane at a cost of $450,000, a restriction that was not in an earlier traffic study.  The Islamic Center of Williamson County finally withdrew its request in May.

“There comes a time when you have to say, ‘We can’t do this anymore,’ ” Dr. Jaweed Ansari, a Brentwood physician and spokesman for the center, told The Tennessean newspaper.

And so it goes in many communities throughout the country.

Political scientist Anthony Gill of the University of Washington says it is difficult to estimate the number of cases nationally where local communities have tried to restrict religious buildings, but he gets the sense from his research that the number is increasing.

And it is no small matter.  Conflicts over prayer in school and nativity scenes in public squares capture the media’s attention, Gill says, but the issue of whether religious groups can  build sanctuaries convenient to their members is critical to the free exercise of religion.

Denying property rights to faith groups “may even represent a more invidious attack on basic religious liberties than whether ‘under God’ should appear in the Pledge of Allegiance,“ Gill writes in “Septics, Sewers and Secularization: How Government Regulation Flushes Religiosity Down the Drain,” a new guiding paper for the Association of Religion Data Archives.

The business of government

The Religious Land Use and Institutionalized Persons Act, passed by Congress in 2000, was designed to protect religious group from violations of property rights. The law states communities must show a “compelling governmental interest” in order to impose or implement a land use regulation in a manner that restricts the free exercise of religion.

Yet since the law’s passage, many county and local governments have shown what Gill describes as “blatant disregard” for the law.

In 2001, he notes, the county executive of King County, Wash., declared a moratorium on all church construction on unincorporated land. In Cypress, Calif., the City Council invoked power of eminent domain to take property the Cottonwood Christian Center planned for construction, and redirect it to a retail outlet.

Why do they do it?

Some major reasons, Gill says, include bowing to the Not In My Backyard response of residents who believe local construction in their neighborhood should stop as soon as their home is built.

Government officials seeking to maximize tax revenue also have a strong interest in choosing businesses over religious organizations that pay fewer taxes on their properties. Communities where school funding is allocated on a per-pupil basis also are motivated to keep public school enrollments up, states Gill, the author of  “The Political Origins of Religious Liberty” from Cambridge University Press.

And no matter what the law says, many communities believe they can still get away with restricting religious property rights.

The bully principle

What religious groups are finding is that the federal law does work, but only if you have the will and resources to fight what could be a lengthy court battle.

Sociologist Scott Thumma of Hartford Seminary, an authority on megachurches, has been called to testify both by congregations and churches and communities in zoning cases involving the Religious Land Use and Institutionalized Persons Act.

“I haven’t seen very many of them lose,” he said.

But the playing field is tilted away from small congregations. Large churches, or churches in denominations such as the Catholic Church with centralized resources, can come in with their own lawyers citing court precedents.

“They have the resources to keep pushing it, and if they keep pushing it, RULUPA comes down on their side,” Thumma said.

The process is much more intimidating for smaller congregations.

“For a little congregation, trying to come in, all the town and county needs to do is threaten a lawsuit and most of them don’t have any resources for a protracted court case,” Thumma said.

Minority congregations in particular face an uphill battle.

Groups like Southern Baptists or Catholics can bring numbers and political influence in play.  But Jehovah’s Witnesses or Orthodox Jews or Muslims — or, say, a black  church seeking to move into a white community — often face biases that can make it easier for city officials to deny permits, observers say.

Gill, who is at work on a book on the topic of religious freedom and property rights violations, said the problem may be vastly underestimated since many small congregations may back away long before cases reach the courts or the media.

When Muslim families around Brentwood, Tenn., prepared their plans for a mosque, “All we wanted to do was build a place where the name of God was glorified,” Ansari told the Tennessean after the group decided it could no longer move forward.

But good intentions, even with a federal law to protect religious property rights, are not always enough.

It still often takes money and power to stand up to the bullies of the pulpits.

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