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PREPARED STATEMENT OF W. COLE DURHAM, JR., BRIGHAM YOUNG UNIVERSITY LAW
SCHOOL This statement is submitted by Professor Durham in his personal capacity, and is not made on behalf of any organizations or institutions with which he is affiliated.
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: in my home state of Utah, at the federal level, and as a comparative law expert in many of the countries emerging from the yoke of communism. Experience in all these contexts has reaffirmed my conviction, in setting after setting, that religious freedom is one of the bedrock principles of any just human society. As Madison rightly argued over two centuries ago in his famous Memorial and Remonstrance, religious freedom "is in its nature an unalienable right” because it relates to duties that are "precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” 1
While this hearing rightly focuses on issues of United States constitutional law, it is worth remembering that the principle of religious freedom is deeper and more absolute than any constitution. The Universal Declaration of Human Rights, whose fiftieth anniversary is celebrated this year, clearly recognized (as did our founding fathers) that religious freedom is not a right conferred on individuals by states; it is a right possessed by everyone simply by virtue of being human. Our Constitution is hallowed in no small part because it was one of the first great charters of human history to protect the deeper principle of religious freedom. Moreover, our constitutional history as a people remains impressive because of ongoing efforts to protect this cherished liberty. The legislation we are discussing today, if enacted, will be part of our generation's elaboration of the American heritage of religious freedom. I. GENERAL CONSIDERATIONS CALLING FOR ADOPTION OF THE RELIGIOUS LIBERTY
PROTECTION ACT Congressional action is vital because religious freedom faces unique challenges at this juncture in our history. These challenges are not limited to the fact that the United States Supreme Court has radically and unnecessarily narrowed the scope of religious freedom protections as traditionally understood in this country.2 They flow from the pervasiveness of the modern state, the increasing pluralization of culture, and powerful forces of secularization. Each of these three factors intensifies the need for added protection of religious freedom.
This is most obvious as one considers the massiveness of the modern state. The seemingly inexorable expansion of state activity into more and more sectors of life increases the number of areas in which state and religious activity can come into conflict, and where religious freedom protections are vital to protect individual and collective religious activity. This Hearing, previous hearings on the legislation in question, and all the hearings on the earlier Religious Liberty Protection Act, were replete with evidence of the many areas in which religious freedom is threatened if encroaching governmental action is not strictly scrutinized.
The increasing pluralism of contemporary society further compounds the potential friction points between religious activity and the state. Some, including Justice Scalia in the Smith decision, have cited this factor as an argument against accommodation of religious difference. But this runs counter to our historical experience. What the American experiment has shown, and shown stunningly (if not always perfectly), is that accommodation and toleration are much more effective in promoting social stability and flourishing than insistence on homogeneity and standardization. Increasing pluralism calls for more, not less religious freedom, because in addition to being right, respect for difference pays richer social dividends than wooden insistence on conformity.
Less obvious, perhaps, is the challenge posed by progressive secularization, which is particularly evident among our intellectual elites. Secularization is gradually dulling our sensitivities to the vital importance of religion and religious freedom to the strength of our republic. The importance of religion to society was obvious to the founders and to many of the greatest commentators on American life, such as Alexis de Tocqueville. But in secularized minds, the legitimate interests and claims of religion seem to fade in importance or to be marginalized when balanced against
1 James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON, Marvin Meyers, ed. (rev. ed. 1981). The Memorial and Remonstrance is also reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63 (1947).
2 City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Employment Division v. Smith, 494 U.S. 872 (1990).
equipment to the church, and then set it up.
On Wednesday evenings, we have Bible School and a midweek service. In order to be out of the school on time, we need to start Bible School at 6:00 p.M... Because we start so early, many students are unable to attend and receive the benefit of intensive Bible teaching. If we had our own building, we could be more flexible in our scheduling.
If we need to use the school for meetings or events which would last for less than four bours, we must pay $300 for a four hour rental because four hours is the minimum rental for the space we use. We hold our church board meetings at a local hotel at a cost of $280 per meeting.
Many church members have expressed. frustration with the amount of time they are required to commit to the most basic tasks of setting up the church, and endure considerable inconvenience in order to store the church's equipment in their homes. Some have left because of this frustration or because they are used to worshipping in a building that looks like a church. When people leave the church, it directly affects the church's lacome and indirectly affects the ability of the church to minister to its members and its neighborhood.
We are also outgrowing the school auditorium. If we remain there, we will have to begin holding two services, which is extra work for the staff and hinders the feeling of community in the church.
We want to relocate the church east of where we now neet, preferably near the University of Illinois, because God has called us to build a congregation from a variety of racial and economic backgrounds. If we are located too far west, we will not be able to attract white, hispanic or middle class members. We also want to fulfill God's vision for Israel in the inner city: "And they that shall be of thee shall build the old waste places: thou shalt raise up the foundations of many generations; and thou shalt be called, The repairer oi the breach, The restorer of paths to dwell in." Isaiah 58:12
Because of the problems with our rented space and because of Our goal to be a diverse congregation, we began looking for property to buy in 1992. In 1993, we located a building at 1218 W. Adams which would have been ideal for our needs. However, it was and is zoned MI-3, and we were informed by Pastor Theodore Wilkinson, who was laterested in similar property, and by others that the city is not willing to rezone
property so that it can be used as a church. Therefore, we did not make an offer on the property. We were ready, willing and able to buy that property but for the zoning. Our ministry would have been greatly enhanced if we could have bought it.
Currently, we are lookiag for a vacant lot so that we can build our own church building. For the last two years, I have kept a list of all the properties on the market on the west side. I have personally driven to most of them to see if they would be suitable for our needs, and have checked their zoning. As of the date of this affidavit, I have been unable to find one property between Lake Avenue on the north, Roosevelt on the south, the lakefront on the east and Boman Avenue on the west which is available and zoned for church use.
Subscribed and sworn to before me this 23 day of September, 1994.
the secular interests that are the focus of most governmental programs. Secular purposes look neutral, even when they have severe ramifications for religious life, whereas religious beliefs are suspect. What results is a kind of secular blindness, or at least myopia, that results in progressive underprotection of religious rights.
This trend is compounded by those thinkers about religious rights, including some at this hearing today, who advocate various versions of what might be called "secular reductionism." Some contend that religious rights can simply be reduced to other more secular rights, such as freedom of speech, or association, or the right to equal protection. Others view religious freedom through a paradigm of equality, in which the idea of religious freedom is reduced to a mere non-discrimination norm. Too often, even the residual equality norm to which religious freedom is reduced grows insensitive to the value of religious difference. It is axiomatic in dealing with equality norms that substantive equality cannot be achieved without taking relevant differences into account. But secularized equalitarians are all too prone to forget that religion and the right to religious freedom constitute relevant differences that need to be taken into account in order to provide genuine substantive equality. Whatever one ultimately thinks about the balance of liberty and equality, it is fair to say that the greatness of our tradition in religious liberty will be impoverished if we do not understand that at its core it is about the protection of religious differences, religious pluralism, and religious conscience, and that sometimes these values are so strong that they even override otherwise relevant equality claims.
The Religious Liberty Protection Act helps remedy the foregoing problems by insisting, at least in those areas where Congress has continuing power after Boerne, that governmental incursions on religiously motivated conduct shall be strictly scrutinized. This does not mean that all state action and state norms thus scrutinized will be invalidated. No one has ever claimed that the right to engage in religiously motivated conduct is absolute. But it does assure that government officials cannot ride roughshod over religious claims, that they will need to bear the burden of proving that state action they implement complies with constitutional requirements, and that they need to consider carefully whether they can structure their programs in ways that are less burdensome to religious believers and organizations. Only when they have strong justification will they be allowed to override religious concerns. Insisting on such justification does not constitute an unfair privileging of religion. To the contrary, it simply recognizes the distinctive protections afforded by the First Amendment. Religious differences need to be taken into account to avoid unfair disadvantaging of individuals and groups bound by conscientious obligations. Requiring special sensitivity affirms the distinct and sensitive role that religion plays in social life; state action that fails to respect its distinctive character is unjust. II. THE NEED FOR SPECIAL PROTECTION OF RELIGIOUS FREEDOM IN THE FIELD OF LAND
USE PLANNING When I was invited to appear at this Hearing, I was asked to focus in particular on religious freedom issues that arise in the area of land use. In the balance of my remarks, I will turn to this area. In my view, the problems encountered by religious organizations in the area of land use are symptomatic of a larger set of problems that religious organizations face in the modern regulatory state. Thus, I hope my remarks in what follows will be understood both as documentation of concerns in the land use area in particular and at the same time as a case study providing evidence more generally of the need for the Religious Liberty Protection Act.
Conflicts between free exercise of religion and land use date back to the earliest days of the American colonial period. One of the most famous early cases of religious persecution in America involves the expulsion of Anne Hutchinson from Massachusetts Bay. While the case obviously antedates modern land use statutes, many of the elements are familiar. Apparently, Ms. Hutchinson attracted the disfavor of the establishment because she started holding regular sessions in her home to discuss (and criticize) sermons held in the dominant church. She started a women's club in her home to discuss the sermon and the Bible each week. The attendance at these meetings increased with the controversy over the banishment of Roger Williams. Women were attracted to Anne and wanted to hear her opinions. The first formal action taken against her was a resolution of the assembly in 1637, which, as reported by her principal antagonist, John Winthrop, read as follows:
That though women might meet (some few together) to pray and edify one another, yet such an assembly, (as was then the practice in Boston), where sixty or more did meet every week, and one woman (in a prophetical way, by resolv
ing questions of doctrine, and expounding the scripture) took upon her the
whole exercise, was agreed to be disorderly, and without rule.3 In a modern setting, planning authorities would have complained of inadequate parking, traffic problems, and other signs of “intensive” land use. A sanction as austere as formal banishment in seventeenth-century New England would have been an unlikely, but modern authorities might have proven just as adept at finding a neutral rubric (here, “disorderly conduct") to exclude an unpopular religious activity.
The field of land use is particularly vital for the simple reason that religious activity, particularly the communal life of a religious group, necessarily involves using land. To some extent, this simply states the obvious, but some detail about the nature of religious land use in the United States may be helpful. The 1994 Report on the Survey of Religious Organizations at the National Level (the “Survey"), conducted by the Northwestern University Survey Laboratory and the DePaul Law School's Center for Church/State Studies (with which I am involved), surveyed approximately 300 religious denominations in the United States, including virtually all major denominations. It found that nearly all religious organizations hold religious gatherings at least once a week. Not surprisingly, 96% of the respondents indicated that religious gatherings are held at a single permanent location. 89% of those utilizing such structures own them outright; 11% of respondents indicated that structures are leased.5 In addition, "approximately two-thirds . . . engage in social service or welfare activities; over 80% are involved in education;6 nearly 60% provide recreation or social activities;7 85% are involved in communications;8 one-third have retreat centers; and 40% have cemeteries.” 9 These figures do not reflect the number of religious associations that operate hospitals or other health care facilities, nor do they reflect a variety of other programs carried out by religious social services agencies. 54% of the respondents indicate that their national bodies own real property that is not used for worship purposes, as do the local units of 54% of the respondents. 10 Educational facilities and clergy housing are the most commonly held nonworship properties. 11 In addition, approximately one-fifth of the organizations surveyed indicate that they invest in real estate to raise funds. 12
For the most part, the government officials dealing with land use issues in the nearly 70,000 local government entities of the United States are tolerant and respectful of religious rights. Nonetheless, particularly when community opposition is strong, or when the fashionable orthodoxies of the planning or historic preservation worlds are challenged, problematic instances occur.
It is difficult to measure with precision the extent to which intentional religious discrimination plays a role in the problematic cases. As noted in In re American Friends of the Society of St. Pius v. Schwab, 417 N.Y.S.2d 991, 993 (N.Y. App. Div. 1979),
Human experience teaches us that public officials, when faced with pressure to bar church uses by those residing in a residential neighborhood, tend to avoid any appearance of an antireligious stance and temper their decision by carefully couching their grounds for refusal to permit such use in terms of traffic dangers, fire hazards and noise and disturbance, rather than on such crasser grounds as lessening of property values or loss of open space or entry of strangers into the neighborhood or undue crowding of the area. Under such circumstances it is necessary to most carefully scrutinize the reasons advanced for a denial to insure that they are real and not merely pretexts used to preclude the exercise of constitutionally protected privileges.
3 Quoted in CARL HOLLIDAY, WOMAN'S LIFE IN COLONIAL DAYS 40 (Boston: Cornhill Publishing Company, 1992).
4 My summary of the Survey draws on a summary prepared by Professor Angela Carmella in a chapter entitled “Land Use Regulation of Churches” that will appear in The Structure of American Churches: An Inquiry into the Impact of Legal Structures on Religious Freedom, which is to be published under the auspices of the DePaul Center for Church/State Studies. (I am an Associate Editor of this volume.)
5 Survey, MQ41.
6 44% of the organizations surveyed indicated owning one or more educational facilities. Survey, MQ14.
Of these, 54% provide recreation centers, and 80% have campgrounds. Survey, MQ58 D and 8 10% of these have a television station; 24% have a radio station. 9Id. 10 Survey, MQ10, MQ42. 11 Nearly one-third reported owning clergy housing or other real estate. 12 Survey, MQ30.