WASHINGTON (ABP) — The Supreme Court has turned away a chance to decide whether Chicago's zoning laws unfairly discriminate against “storefront” churches.
On June 7, the court declined, without comment, to hear an appeal from a group of five Chicago churches in cooperation with an association of local congregations called Civil Liberties for Urban Believers. The group had sought to overturn a city zoning ordinance that requires churches to seek special permits or a rezoning vote before locating in any area not zoned for residential use.
The churches — all of them small, fledgling congregations — had brought the lawsuit on several legal grounds.
First, they argued that the law violated the federal Religious Land Use and Institutionalized Persons Act of 2000, also known as RLUIPA. That law sought to limit the ability of government entities to impose a “substantial burden on the religious exercise” of an individual or religious group unless the government can demonstrate that the burden has been imposed to serve “a compelling governmental interest” and “is the least restrictive means of furthering” that interest.
The churches had all incurred significant legal fees in attempting to obtain special-use permits or rezoning of their property to allow religious uses. In every case, the churches' requests were denied at least once — multiple times, in some cases.
The churches also argued the law violated their constitutional rights to freedom of religion and equal protection of laws.
In August, a panel of the 7th U.S. Circuit Court of Appeals voted 2-1 in the city's favor.
In his opinion for the majority, Judge William Bauer said the burdens imposed by the laws weren't “substantial” under the RLUIPA claim.
“Application of the substantial-burden provision to a regulation inhibiting or constraining any religious exercise, including the use of property for religious purposes, would render meaningless the word 'substantial,'” he wrote. If the court agreed with the plaintiffs, Bauer continued, “the slightest obstacle to religious exercise incidental to the regulation of land use — however minor the burden it were to impose — could then constitute a burden sufficient to trigger RLUIPA's requirement that the regulation advance a compelling governmental interest by the least restrictive means.”
Bauer went on to say that, under RLUIPA, a substantial burden on religious exercise must be “one that necessarily bears direct, primary and fundamental responsibility for rendering religious exercise — including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable.” He pointed out that each of the plaintiff churches eventually found suitable property in Chicago.
But Judge Richard Posner, dissenting from his colleagues on the panel, said the law nonetheless denies small, poor, newly established churches equal protection. “When government singles out churches for special regulation, as it does in the Chicago ordinance, the risk of discrimination … is great enough to require more careful judicial scrutiny than in the ordinary equal protection challenge to zoning,” he wrote.
The ordinance favors established churches, Posner continued, because they acquired their land before zoning laws were established and when land was much cheaper in the city. “But what of new, small, or impecunious churches, such as the 40 to 50 obscure sects, one of which has only 15 members, that compose the principal plaintiff, Civil Liberties for Urban Believers?”
Posner also chided the city's attorneys for the “paternalistic argument” they put forth “that it is bad for the churches themselves to be located in commercial or industrial areas, because of noise and commotion. Obviously that is a judgment for the church to make rather than government, by trading off the cost to the church of noisy and profane surroundings against the benefits in lower costs of land acquisition and proximity to sinners, including prostitutes, drug addicts, and gang members, whose souls are particularly in need of saving.”
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