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). हरी 6. 7. 8. 9. 10. 11. 12. equipment to the church, and then set it up. As well as being inconvenient and time consuming for volunteer members, this process requires a lot of attention and organization by the staff. We need to use our limited energy and time to do the basic setup for the church, rather than in serving God in our neighborhood. 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 hours, 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 income 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 meet, 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 of 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 M1-3, and we were informed by Pastor Theodore Wilkinson, who was interested in similar property, and by others that the city is not willing to rezone 13. Our Therefore, we property so that it can be used as a church. did not make an offer on the property. We were ready, willing and able to buy that property but for the zoning. ministry would have been greatly enhanced if we could have bought it. Currently, we are looking 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 Homan Avenue on the west which is available and zoned for church use. Anthony Earl Subscribed and sworn to before me this 23 day of September, 1994. This letter is a follow-up to your request for a letter concerning the requirement that any church desiring to locate in Chicago, in a business or commercial area, obtain a "special use" zoning permit and your request to be informed concerning the actions some of our clients will be taking. The process of obtaining such a permit places the following burdens on churches: 1. 2. 3. 4. 5. They must buy or lease the property (and make necessary improvements) After having purchased a property or obtained a contract to purchase The hearing process often generates confrontations with angry neighbors, A church can incur $1,000 or more in costs for an appraiser, land planner The hearing process can take from two months to six months or longer, Rev. Jim Queen Page 2 6. 7. 8. 9. required. The church usually experiences stress from financial strain and uncertainty. Members often misunderstand the law and may lessen giving, feeling their leaders have tried to do something "illegal" if the permit is denied. If the permit is denied, the congregation often suffers great disappointment and must start over in its property search. The pastor's leadership ability may also be called into question. The pastor, of course, is under considerable pressure not to preach on sin in city government since the Alderman and the administration can negatively impact the expansion plans of the congregation. Finally, churches are severely discriminated against in this process. Following are non-religious assembly uses which are freely allowed (no permit required) in various commercial and business districts: As you can readily see, churches are a less intensive land use than many of the permitted uses. The only essential difference between churches and the permitted uses is the content of the meetings (prayer instead of cheering a sports team; preaching instead of eulogies; hymn singing instead of discussion of union matters). The Chicago Zoning Ordinance contemplates that churches should locate in the residential areas and does not require permits there. However, this "alternative" is unsatisfactory for several reasons: 1. 2. The residential areas in Chicago are largely built up and already subdivided into small lots; Groups meeting in a home usually do not have adequate parking to meet the zoning requirements once they grow beyond 25; 3. Even when land can be found, new construction of a church building and |