Rev. Jim Queen Page 3 4. parking lot is far more expensive than purchase and rehab, of a former community center or funeral parlor. The ordinance, passed in 1957, favors a "parish" system where people walk to a church in their neighborhood, and a hierarchial church (Catholic, Episcopal or Methodist) which can afford to build a large sanctuary with, perhaps, an adjacent school. While accommodation of a parish system is good, the ordinance does not contemplate or accommodate different religious patterns, such as the preference of individuals to attend a particular denomination which may have only three or four congregations in the city. Such congregations will want to meet closer to major streets or public transportation. Further, churches which want to evangelize often feel they can reach more people through locating visibility on commercial streets, rather than being tucked away in a residential area. Also congregations (and denominations) which are growing or hope to grow need the flexibility provided in business and commercial areas where land use patterns accommodate expanding, shrinking, and moving businesses. We all know the "church" is the people of God, but by forcing the church buildings into residential areas, the zoning ordinance forces the church into becoming the edifice (the people become the building rather than the building serving the peopie, Mark 2:27). Congregations often hold on to buildings because they have no flexibility to move/sell/downsize. I am sure you understand how such burdens sap the spiritual vitality from a congregation. Jim, God's people are hurting and we need to come together as Christians to help end this discriminatory treatment against us and people of other religions. Our AfroAmerican and immigrant brothers are often hurt the most, because they usually lack the "clout" to obtain the permit and the dollars to fight. In City of Cleburne. Texas v. Cleburne Living Center, 473 U.S. 432 (1985), the U.S. Supreme Court held that an ordinance which required a special use permit for a "home for the feeble minded" (group care home), while freely allowing multiple dwellings, apartments, hotels, and nursing homes in the same zoning district, was in violation of the Equal Protection Clause because no rational basis existed for zoning such homes differently than the other residential uses permitted. We believe that the discrimination against our religious assemblies in favor of secular assemblies for social, business, recreational and educational uses is equally invalid. Rev. Jim Queen Page 4 Several independent Afro-American churches have agreed to act as plaintiffs in a federal court challenge to the validity of the law. Other churches would be welcomed as plaintiffs. We need money, prayer and unified support. A political solution is unlikely because the Aldermen are highly resistant to voting to lessen their own powers (they have first taken our rights and then "buy" our votes by returning portions of such rights to us in their discretion). We plan to ask for damages and legal fees as well, but such recovery is a long way When we win this case, the savings to the Kingdom of God in Chicago alone will be very substantial. In what way can the CMBA help? A pro bono contribution of $15,000 from the group would be, I believe, excellent stewardship of your assets. Almost any church seeking to locate or expand in Chicago faces this problem, but a favorable court decision will help in many suburbs also. In addition, we would ask the group to pray for us at each meeting during the pendency of the litigation and to pledge an equal amount to pay for an appeal if needed. If the city loses, they might appeal--if we lose at the district court level, an appeal should certainly be taken. We will place all funds in escrow and return them if the litigation does not proceed or will return a pro rata 1 A major variable is the number of plaintiffs involved. By having more plaintiffs we believe our case will be stronger. Rev. Jím Queen Page 5 amount if the case is aborted after it has commenced. Please put this matter on a priority agenda for the Association, and let me know as soon as possible how you can participate. We would like to launch this action by November, Lord willing. Yours in Christ, Mauck, Bellande, Baker John W. Mauck JWM:gb cc. Woodroe Claiburne Mr. CANADY. Professor Durham STATEMENT OF W. COLE DURHAM, JR., BRIGHAM YOUNG UNIVERSITY LAW SCHOOL Mr. DURHAM. Thank you. It is a great honor for me to address this body today on legislation vital to protecting one of our preeminent liberties: religious freedom. I have spent much of the past decade working in support of this great principle both in my home State of Utah and at the Federal level, work which underscores my sense that we are dealing with one of the bedrock principles of any just society. It is a true tragedy that some of the most fundamental problems arise in this area, and some people seem to think that they can't be dealt with at the Federal level. I believe that the proposed law is measured, that it does follow what has been done in other areas. For example, it involves valid assertions of the commerce and spending powers. I also want to focus primarily on the land use issues. I think I must have misheard Marci Hamilton. I thought she said land use is the last bastion of liberty. I cannot believe that. I have to say that I must have misheard her. Mr. CANADY. My ears heard the same thing with the same response on my part. Mr. DURHAM. Maybe she misspoke, but certainly anyone who has been in any of these processes I know often have questions and problems with that. One of my fundamental roles in this hearing is to draw together anecdotes-cases-on land use planning. There is a reason that we deal with anecdotes in this area, and that is that every piece of land is different; land is unique. And yet there are recurring kinds of problems. A year or so ago when we were preparing the amicus briefs in the Boerne case, I along with some other colleagues pulled together all of the reported cases that we could find regarding land use and religious freedom. We tabulated them and simply looked at what happened. The result is not a scientific study in the strict sense. Frankly, I don't know how one would assemble a scientific universe of such cases. Instead, we simply tried to get all of the reported cases. When you look at them, you see an overwhelming pattern of discrimination./ This, of course, goes to the section 5 issue and section 5 support for the land use provisions of Religious Protection Act. Let me just summarize very briefly what the overall results are. I am skipping over another study that was done by DePaul University that looks at the scope and the range of land uses that are done by churches throughout the country. This was a survey of about 300 major denominations and what their land use patterns are. But focusing just on this collection of data about the actual cases, we compared the treatment received by smaller religious groups. This is a continuum, but we took those with 1.5 percent of the population or less and we compared those with the treatment that is received by larger religious groups. Minority religions that fall in the category of having less than 1.5 percent of the population represent about 9 percent of the total population of the United States. Mr. SCOTT. What percent? Mr. DURHAM. About 9 percent. These small groups represent only 9 percent of the population, and yet they were involved in over 49 percent of the cases regarding the right to locate buildings at a particular site and over 33 percent of the cases seeking approval of accessory uses. When we did the study, you couldn't exactly tell which kind of denomination was involved in each case. If the case name is "Roman Catholic diocese such and such," you know that it is Catholic, but some of the others are not so obvious. So there were a number of cases that are unclassified or are from unascertainable denominations. These unclassified cases are likely also to be in the category of small religious groups (with less than 1.5 percent of the population). It turns out that the disproportionate burden becomes even more distressing when these cases are taken into account. If these are counted in, over 68 percent of the reported location cases, and over 50 percent of the accessory use cases involve smaller religious groups. There may be some imperfections in the data, but there could be substantial error without disturbing the result. The point is this portrays a picture of significant recurring discrimination. I think, as Mr. Mauck said, we are just seeing the tip of the iceberg. I can walk through a number of cases, as my testimony does, and you see churches being driven from pillar to post seeking place after place simply in order to find a place to worship, and this is, in my view, unconscionable. Now, it is true that there are all sorts of planning reasons that one can give for such results. I want to say that most of the planning people in this country act in good faith and so forth, but I think that they end up suffering from what I call “secular blindness." They are often more concerned about some relatively minor concern about aesthetics and the like than they are with responding religious freedom. As important and valuable as these concerns are, they cannot outweigh the value of religion and religious freedom in our society. It is vital to adopt a law like the Religious Liberty Protection Act to deal with these things. In conclusion, I would simply underscore what was said at another point in my written testimony with respect to the Commerce Clause issue. Commerce issues are particularly obvious in the land use area. Religious use of land has all kinds of impacts on commerce, and the impacts are clearly substantial. Religious uses are directly burdened by the land use decisions, and it is perfectly permissible for Congress to exercise its power to deregulate this area that is so vital to exercise one of the most fundamental freedoms in the world. Thank you. Mr. CANADY. Thank you, Professor. [The prepared statement of Mr. Durham follows:] |