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facilities are properly maintained. These are precisely the types of activity that have justified Congressional regulation in the interest of civil rights in other contexts.29
All too frequently, the current land use regime operates as a kind of non-tariff trade barrier against new and less popular religious groups, with ripple impacts on all the other types of commerce that the new religious activity would otherwise stimulate. Moreover, as noted above, current administration of land use rules creates in effect an unfairly burdensome excessive market for real estate options, as the sorry experience of numerous religious groups in proffering site after site to local planning authorities confirms. Congress can legitimately determine that it will regulate a field (or occupy a field with non-regulation) where it desires to assure that activities substantially affecting commerce (here: religious activities) should not be burdened, or should be burdened only where there are strong and non-discriminatory grounds for the burden.
Examples could be multiplied, but what has been said amply supports the truly massive impact religious activity in general, and more particularly, religious activity directly impacted by land use regulation, has on interstate commerce. Particularly when replicated across denominations and across the thousands of municipalities in the United States, the substantial effect on commerce is undeniable. Eliminating unjustified burdens on religious exercise will promote commerce, and justifies Congressional intervention to assure that religious activity and its substantial affects on commerce is not unfairly burdened by differential land use regimes around the country.
APPENDIX Discrimination Against Minority Churches in Zoning Cases
In order to gain some perspective on the treatment of non-mainline groups in zoning cases, a broad sample of zoning decisions challenged on free exercise grounds has been analyzed. A total of 196 cases was ultimately included in the study. This set of cases should include a fairly comprehensive set of reported cases in this field. It includes all cases cited in annotations that have collected cases on this topic (including cases cited in pocket part updates), 30 all cases cited in the section of a leading treatise on zoning that addresses issues of religious land uses, 31 and all cases identified through a Westlaw search classified under West's Constitutional Law Key Number 84.5(18), which collects religion cases involving zoning and land use. It is conceivable that some cases involving religion-based constitutional challenges to zoning decisions may not have been captured through these sources, but it is unlikely that there are many such cases.
The cases thus collected have been classified by the type of zoning case and by the denomination involved. Essentially, the zoning issues fall into two broad categories: cases that involve zoning on property to permit a church building to be erected on a particular site ("location cases”), and cases that determine 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”).
In most of the cases, the denomination involved is obvious either from the case name or from discussion of the case in the opinion. There are, however, a substantial number of cases in which either no denominational affiliation appears in the case, or the church involved is non-denominational. These cases are designated as "unclassified” in the tables below. While some of the unclassified religious associations may in fact have a denominational affiliation that simply is not evident from the cases, most of these cases appear to involve local, congregationally organized churches that are functionally similar to the organizations we have classified as minority churches.
Information on the size of various denominations was derived from tables provided in BARRY A. KOSMIN & SEYMOUR P. LACHMAN, ONE NATION UNDER GOD; RELIGION IN CONTEMPORARY AMERICAN SOCIETY 15–17 (1993). The data is derived from the National Survey of Religious Identification conducted by the Graduate School
29 See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (allowing Congress to impose antisegregation laws on restaurant whose food came 46% from out-of-state); Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964) (allowing Congress to impose anti-segregation law on motel that had substantial out-of-state guests because racial discrimination in the aggregate discouraged many blacks from traveling).
30 Jay M. Zitter, Annotation, What Constitutes Accessory or Incidental Use of Religious or Educational Property Within Zoning Ordinance, 11 A.L.R.4th 1084 (1992); Jeffrey F. Ghent, Annotation, Definition of Church or Religious Use Within Zoning Ordinances, 62 A.L.R.3d 197 (1967); Annotation, Zoning Regulations as Affecting Churches, 74 A.L.R.2d 377 (1961).
31 A. RATHKOPF & D. RATHKOPF, THE LAW OF ZONING AND PLANNING I 20 (4th ed. 1992).
of the City University of New York, which surveyed a representative sample of 113,000 people across the continental United States. This is the most comprehensive poll ever conducted on the issue of religious affiliation. Id. at 1-2. It provides the best available data of religious affiliation as assessed from the perspective of the believer.
The line between mainline denominations and smaller groups is difficult to draw, because one is dealing with a continuum. For purposes of this study, groups with more than 1.5% of the adult population were treated as mainline groups, whereas groups with smaller percentages were included in the minority category. The only exception in the tables that follow is Judaism, but if the statistics on Judaism were divided to reflect the major branches of that tradition, the various branches would come under the 1.5% threshold. Some smaller Protestant groups may be more analogous to mainline groups, so that the categorizations in a few cases could be questioned.
The population percentages in the tables that follow do not add up to 100% because the tables do not include data on non-religious groups and on the portion of the population (only 2.30%) that did not respond to the survey. Many smaller religions were not covered by the study because they have no reported cases, but such religions represent only 2.22% of the population.
In analyzing the data, a basic starting assumption is that any zoning dispute that progresses far enough into litigation to yield a reported decision reflects a situation in which religious groups perceive that their religious rights are being violated. For a variety of practical reasons, ranging from the need to have a good working relationship with local government officials to the sheer cost of litigation to the availability of alternative sites, churches probably bring fewer actions in this area than they think they may be entitled to bring. Table 1 summarizes the number of cases in the location and accessory use categories by denomination:
Minority + Unclassified
65 | 100.00%
The figures indicated in Table 1 already suggest that a substantial amount of the litigation in this area involves minority religious groups. This burden is more pronounced when compared to the percentage of groups from these denominations in the general population. Table 2 provides these comparisons.
Percentages of Zoning Cases by Denominational Group and Percentage of
United States Population
Self-Described % Location Cases Accessory Use
Cases (%) Population
The data in Table 2 are not wholly satisfactory, because the relative populations of various religious groups vary over the rather lengthy period from which the cases are drawn, whereas the population figures, to the extent they are available, are quite recent. Nonetheless, the figures suffice to give a rough sense for how the percentage of cases in which a given religious society is involved corresponds with that society's percentage representation in the population as a whole. These figures strongly suggest that a high percentage of cases are being contested by religious groups comprising a very small percentage of the total population.