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).

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.4 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; 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.

644% of the organizations surveyed indicated owning one or more educational facilities. Survey, MQ14.

G.

7Of 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.

9 Id.

10 Survey, MQ10, MQ42.

11 Nearly one-third reported owning clergy housing or other real estate.

12 Survey, MQ30.

Despite such instinctive efforts on the parts of governing bodies to avoid the appearance of intolerance, I have absolutely no doubt that prejudice is a substantial factor in a large number of cases, particularly where smaller or less popular groups are involved

Strong evidence for this conclusion is provided by a study I prepared with colleagues from the B.Y.U. Law School and at the law firm of Mayer, Brown & Platt in January, 1997. A copy of the study is attached as an appendix to my statement. Essentially, the study reviewed all the reported cases we were able to identify involving free exercise challenges to land use regulation. If anything, it seems reasonable to assume that these cases significantly understate the number of situations in which religious groups believe that their religious rights are being violated. A variety of practical disincentives ranging from the need to have good working relationships with local officials and neighbors, to religiously based impulses to go the second mile, to the sheer cost of litigation, to the availability of other sites and the unattractiveness of settling among manifestly prejudiced neighbors all operate to deter religious groups from over-litigating their claims.

Cases were classified into two broad categories, essentially to see if there are significant differences between new construction situations ("location cases") and cases dealing with whether an accessory use (such as a homeless shelter or soup kitchen) may be allowed at the site of an existing church ("accessory use cases"). The cases were also classified by denomination, to the extent that is possible based on case name or other information in the body of the decision. Information on size of denomination was based on data from a massive study that provides the best available estimates of church affiliation based on self-described affiliation.

With this data in hand, we proceeded to compare the treatment received by smaller religious groups (those with 1.5% of the population or less) with that received by larger groups. 13 If land use laws were being applied in a neutral fashion, one would expect roughly equal treatment. But in fact, the situation is quite different. Minority religions representing less than 9% of the population were involved in over 49% of the cases regarding the right to locate religious buildings at a particular site, and in over 33% of the cases seeking approval of accessory uses. The disproportionate burden becomes even more distressing if one takes into account smaller non-denominational or other unclassified groups. If these are counted, over 68% of reported location cases, and over 50% of accessory use cases, involve smaller religious groups. While a study of this type can at best give a rough picture of what is happening, the conclusion seems inescapable that illicit motivationis affecting disputes in the land use area. Such illicit motivation may be present either in the form of prejudice against unpopular or less known groups, or in the form of undue favoring of more powerful groups, or most likely, both. There may of course be other factors that explain some of the disparity, but the differences are so staggering that it is virtually impossible to imagine that religious discrimination is not playing a significant role. Significantly, the judicial success rate for small religious groups and larger groups is essentially the same. The smaller groups won approximately 66% of the cases in which they were involved, whereas larger religious groups won approximately 65% of the cases in which they figured. These figures suggest that judicial review has on balance tended to help smaller religious groups. At the same time, they indicate that judicial decisions tend to be more impartial across groups, and that there is no reason to think the high proportion of disputes involving smaller religious groups reflects higher levels of ungrounded claims.

The magnitude of the problem is reinforced when one considers that the reported cases are only the tip of the iceberg, since for the reasons discussed above, most religious groups bend over backwards to avoid conflicts with future neighbors and city officials they must deal with on a continuing basis. That is, religious groups are much more likely to give up on claims they may believe are valid in the interest of social peace than they are to litigate questionable claims aggressively. If anything, then, the study, with whatever unavoidable imperfections it may have, significantly understates the problems religious groups face.

Note that while the problems for smaller religious groups are particularly acute, the burdens faced by larger groups are not insignificant. A recent survey commissioned by the Presbyterian Church USA—a mainline denomination by anyone's definition-noted that 23% of its congregations had needed to obtain some sort of land use permit since January 1, 1992. Significant conflicts with city/county staff, neighbors, commission members, or others were encountered with respect to 10% of the

13 Technically, all religions in the United States are "minority religions" in the sense that their members constitute less than 50% of the population. It turns out that those with 1.5% of the population or more tend to include “mainline” groups, and that the less popular groups all fall below the 1.5% line.

land use approvals thus needed, although only 1% of the approvals needed have thus far been denied (with 4% remaining unresolved). 14

The patterns of discrimination suggested by the foregoing statistics are all too familiar to those working in the religious land use area. In case after case, the plaintiff is a religious group that has obtained options on lot after lot, or has actually purchased a succession of lots, often after preliminary consultations with city officials, only to have a zoning request, a conditional use permit, a variance, or some other land use approval denied as opposition from local citizens climbs. Such denials are often issued even though similar religious uses from larger religious groups have been approved. This is exactly what happened when The Church of Jesus Christ of Latter-day Saints sought a zoning change for a temple site in Forest Hills Tennessee, as described in detail by Von Keetch in an earlier Congressional hearing held on March 26, 1998.15 Such denials are also a familiar litany in many cases involving Jehovah's Witnesses. And they are an even greater problem for newer or non-Christian religious groups.

The facts of discrimination were particularly blatant in Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988). A Muslim group that served primarily students at the University of Mississippi in Starkville sought necessary approvals for a place of worship near campus. Unfortunately, Starkville's zoning ordinance prohibited the use of buildings as churches in all the areas within the city limits that were near campus, and there was no place in the city in which worship facilities were permitted as of right. The Islamic Center considered three successive lots as possible worship sites, but each time was told by the City's building codes official that the sites could not be approved, either because of inadequate parking, heavy traffic on an adjacent street, or the risk of traffic congestion. The leaders then met with the building code official, and asked "exactly where we can locate," and were told that a fourth location would be excellent, if sufficient parking was provided. The representatives of the Center then bought the property, and provided 18 on-site parking spaces. The planning commission recommended approval. Ultimately, however, the use had to be approved by the Board of Aldermen, and despite recommendations of approval from staff, the Board denied the approval when a neighbor claimed that the use would cause "congestion, parking, and traffic problems." The Board thereupon denied the exception to the zoning ordinance that was sought. Subsequently some city officials inspected the building for conformity with fire and electrical requirements, and approved its conformity for worship. But several months later, in response to complaints about worship activities, the City ordered the Islamic Center to stop holding worship services at its building. What made this whole course of action particularly galling was that there was a residence next door that was used as a worship center for Pentecostal Christians. This group caused more noise, provided less parking and in general seemed less deserving of a zoning exception than Islamic Center. Five more churches were located within a quarter mile of the Center. The District Court, after holding that "congregational prayer for Muslims is desirable, but not mandatory," and that the "Starkville city ordinance does not preclude students from purchasing cars and driving to a worship site located [outside Starkville's city limits]," concluded that

[s]tanding alone, the denial of the... [Center's] zoning application is not enough upon which to base an inference of discrimination. The actions of

the Board were supported by valid traffic considerations, and there is no evidence to suggest that it improperly considered plaintiffs' religion in reaching its decision.

Therefore, it held, the zoning ordinance did not violate the Islamic student's rights to free exercise of religion or substantive due process.16

Fortunately, the Circuit Court reversed, applying a heightened scrutiny test to reject the District Court's wooden deference to blatantly discriminatory state action and its decision that Starkville's zoning ordinance did not burden the Islamic students' free exercise rights. The Fifth Circuit Court rightly compared the comments about how poor Islamic students could simply buy cars to drive to church across town or outside the city limits to "Anatole France's comment on the majestic equality of the law that forbids all men, the rich as well as the poor, to sleep under bridges.

"17

The difficulty is that in far too many cases, as noted in the Schwab case quoted above, land use decisions are wrapped in neutral sounding language about parking,

14 Supplement to the Session Annual Statistical Report: End of Year 1997, Question 7-8.

15 See Statement of Von G. Keetch, pp. 11-17.

16 Id. at 298 (citing District Court opinion).

17 Id. at 298-99.