Footnotes, Part II
House Church Meetings: A Legal Analysis, by Sean J. Gallagher

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29. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926). This case involved the Village‘s zoning plan that specifically set aside certain areas for residential land use. A realtor complained that this plan reduced the value of land that it held.

30. Id.

31. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). Six college students renting a house were found to have violated the zoning ordinance that limited its entire residential area to single family dwellings. The Supreme Court upheld the definition of the word "family" as being "one or more persons related by blood, adoption, or marriage, living and cooking together as a single house-keeping unit ..."

32. Id.

33. Id. at 9.

34. Moore v. City of East Cleveland, 431 U.S. 494 (1977).

35. Id.

36. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981).

37. Id. at 68.

38. Belle Terre, 416 U.S. at 4.

39. For a more detailed analysis of zoning and religious institutions, see Laurie Reynolds, Zoning the Church: The Police Powers Versus the First Amendment , 64 B.U. L. Rev. 767 (1985), Michael W. Macleod Ball, The Future of Zoning Limitations Upon Religious Uses of Land: Due Process or EqualProtection? , 22 Suffolk U. L. Rev. 1087, 1087 (1988), Scott David Godshall, Note, Land Use Regulations and the Free Exercise Clause, 84 COLUM. L. REV. 1562 (1984).

40. Lakewood, Ohio Congregation of Jehovah‘s Witnesses v. City of Lakewood, 699 F.2d. 303 (6th Cir.), cert. denied, 464 U.S. 815 (1983). (upholding the city‘s denial of allowing a church to build on land zoned for residential use.) See also, Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 822 (10th Cir. 1988) (upholding the county‘s denial of a church‘s request to build on land zoned for agricultural use.)

41. International Church of the Foursquare Gospel v. City of Chicago Heights, No. 96 C 4183, 1996 U.S. Dist. LEXIS 11125 (N.D. Ill. Aug. 1, 1996). Church was denied use of a former grocery store because it was not a commercial establishment that would generate tax revenue. The Court finding that the zoning ordinance placed no substantial burden on the church stated, "mere inconvenience and economic expenditure do not rise to the level of a substantial burden under the Religious Freedom Restoration Act or the United States Constitution."; Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991). An ordinance that excludes churches from central commercial and industrial areas can be valid time, place, and manner restrictions.; Christian Gospel Church, Inc., v. City and County of San Francisco, et al., 896 F.2d 1221 (9th Cir. 1990), cert. denied, 498 U.S. 999 (1991). (upholding the city denial of a special use permit for residential dwelling in an area zoned for single-family dwellings. The court found the burden to be minimal on the small church of 50 people as compared with a strong governmental interest in maintaining the quality of the neighborhood.)

42. Id.

43. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court established the compelling interest test to balance an individual‘s free exercise clause rights when conflicting with government interests. The test holds that for a government statute to be valid when it substantially burdens a person‘s right to free exercise of religion, the law must be the least restrictive means of furthering a compelling governmental interest.

44. The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141 requires the use of the compelling interest test from Sherbert. However, the U.S. Supreme Court, in the very controversial case of City of Boerne v. Flores overturned the Act as it applies to nonfederal governments.

45. St. Bartholomew‘s Church v. City of New York 914 F.2d 348 (2d Cir. 1990). Church must maintain historic church building rather than be allowed to tear it down and develop the property. City of Boerne v. Flores, 117 S.Ct. 2157 (1997). The underlying issue in this case was whether a church must maintain a historic structure that no longer met its needs.

46. Daytona Rescue Mission, Inc. & Gabriel J. Varga v. The City of Daytona Beach, & The City of Daytona Beach City Commission, 885 F. Supp. 1554, (M.D. FL 1995).

47. First Assembly of God of Naples, Fla., Inc. v. Collier Co., Fla., 20 F.3d 419, (11th Cir.), opinion modified on denial of reh‘g, 27 F.3d 526 (11th Cir. 1994), cert. denied, 115 S. Ct. 730 (1995). But in Western Presbyterian Church, et al v. The Board of Zoning Adjustment of the District of Columbia, et al, 849 F. Supp. 77 (DC 1994) ("The fact is, this well-run and necessary effort to minister to the less fortunate residents of this city ought not be arbitrarily restricted and relegated to the less desirable areas of the city because of the unfounded or irrational fears of certain residents. The program cannot be likened to an activity which has no redeeming social justification and must therefore be confined to a so-called ‘combat zone.‘ To the extent the feeding program does not constitute a nuisance, the plaintiffs should be allowed to resume this exemplary service at the Church‘s new location which is only a few blocks from where it has conducted its very worthwhile program for over 10 years without incident.")

48. Islamic Center of Mississippi, Inc., et al., v. City of Starkville, Mississippi, 840 F.2d 293, (5^th Cir. 1988). Denial of a special use permit was found to be discriminatory due to a substantial number of permits granted to other religions in similarly situated circumstances. Rabbi Yitzchok Leblanc-Sternberg et al v. Robert Fletcher et al, 922 F. Supp. 959 (S.D. NY 1996). Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993). Ordinance deliberately targeted religious practice of the church.

49. Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991). Church was prohibited from locating in a commercially zoned area. However, other non-profit entities were allowed in the same commercial zone.

50. State of New Jersey v. Robert J. Cameron, see supra note 13. Nichols and Keane v. Planning and Zoning Commission of the Town of Stratford, see supra note 25.

51. Grosz, see supra note 18.

52. Id at 739. A temple was available four blocks away.

53. Id. Also see Christian Gospel Church, Inc., v. City and County of San Francisco, supra note 41.Id at 739. A temple was available four blocks away.

54. For a more detailed analysis of the Free Exercise Clause jurispurdence and original intent, see Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, MAY, 1990. Also see, Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.Chi. L. Rev. 1109 (1990).Id. Also see Christian Gospel Church, Inc., v. City and County of San Francisco, supra note 41.Id at 739. A temple was available four blocks away.

55. Id. (speaking of John Locke, McConnell states, "Writing in the aftermath of religious turmoil in England and throughout Europe, he viewed religious rivalry and intolerance as among the most important of political problems. Religious intolerance was inconsistent both with public peace and with good government.") McConnell, The Origins, at 1453 (quoting James Madison, "The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.... It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him." Madison went on to state that this duty to the Creator is "precedent both in order of time and degree of obligation, to the claims of Civil Society, ... therefore that in matters of Religion, no man‘s right is abridged by the institution of Civil Society.")

56. Employment Div. Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990).

57. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.Chi. L. Rev. 1109 (1990).

58. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). (The Court developed the compelling interest test for Free Exercise Clause issues. This test stated that for a government statute to be valid when it substantially burdens a person‘s right to free exercise of religion, the law must be the least restrictive means of furthering a compelling governmental interest.) The Shebert compelling interest test was then applied to cases for the next 25 years. In several cases, the Court found the burden on Free Exercise Clause rights to be substantial enough to grant exceptions from a generally applicable law.

59. The Court held that, "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes ... conduct that his religion prescribes. ..."

60. See McConnell, Free Exercise Revisionism.

61. McConnell, Origins, at 1452, (Historian Thomas Curry recounts the 1651 flogging of Obediah Holmes, a Baptist, for holding a religious meeting in Lynn, Massachusetts: "To the familiar argument that he was sentenced not for conscience but for practice, Clark replied that there could be no such thing as freedom of conscience without freedom to act.")

62. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993).

63. Chuck Colson, The RFRA Case as a Crisis of Constitutional Authority, 2 Nexus J. Op. 21, 26-27 (1997). ("... because we live in a secularized society, legislatures often will act in ignorance of the religious needs of their citizens. Even without any intent to suppress a religious practice, legislatures and bureaucracies today often do not think it important to consider possible religious objections. The huge growth of federal, state, and local government creates a virtual certainty of frequent clashes between government action and private conscience as in the case of Catholic hospitals refusing to teach doctors and nurses abortion procedures which accreditation procedures may require; or owners of apartments refusing to rent to unmarried couples which is consistent with their deepest religious convictions but required by local ordinances against discrimination.")

64. City of Boerne v. Flores, 117 S.Ct. 2157 (1997). Numerous commentators have reviewed this decision. For a detailed analysis, see Michael W. McConnell, The Supreme Court, 1996 Term: Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, Nov, 1997.

65. Smith, 494 U.S. at 881. ("The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press...") Also see, Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). ("... the Court‘s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a‘reasonable relation to some purpose within the competency of the State‘ is required to sustain the validity of the State‘s requirement under the First Amendment.")

66. See supra notes 51, 53, and 54. See also, Smith, 494 U.S. at 909, (Blackmun, J., dissenting, "This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a ‘luxury‘ that a well-ordered society cannot afford, ante, at 888, and that the repression of minority religions is an ‘unavoidable consequence of democratic government.‘ Ante, at 890. I do not believe the Founders thought their dearly bought freedom from religious persecution a "luxury," but an essential element of liberty -- and they could not have thought religious intolerance "unavoidable," for they drafted the Religion Clauses precisely in order to avoid that intolerance.")

67. See supra notes 15, 18, 21, 25.

68. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) "Government regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.‘")

69. Widmar v. Vincent, 454 U.S. 530 (1981); Cohen v. California, 403 U.S. 15 (1971); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976).

70. Id.454 U.S. 263 (1981).

71. Id.

72. Id at 270.

73. Clark v. Community For Creative Non-Violence, 468 U.S. 288 (1984).

74. 948 F.2d 464.

75. Id. at 469. (However, in this case, the court found that this rationale was not evenly applied to other non-commercial entities residing within the central business district. In addition, the court found that the city had not supported their rationale with evidence of the potential impact. Therefore, the case was remanded for further fact finding in these areas.)

76. Ward, 491 U.S. at 791; Cornerstone Bible Church. 948 F.2d 464.

77. Christian Gospel Church, Inc., 896 F.2d 1221.

78. In Belle Terre, 416 U.S. at 9. The U.S. Supreme Court held that a rational purpose for residential zoning is "to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people."

79. To limit activities within a residential zoned area, a rational government purpose exists to distinguish between assembles and gatherings within a person‘s primary residence and meetings that do not have the sanction of being conducted in someone‘s primary residence.

80. Christian Gospel Church, Inc., 896 F.2d 1221; and Lucas Valley Homeowners Association, Inc., et al, v. County of Marin et al., 233 Cal. App. 3d 130; 1991 are examples of congregations that seek to use a dwelling for assembly purposes where the dwelling is not someone‘s primary residence. This type of case would fall into the non-primary residence category. However, New Jersey v. Cameron, see supra note 15; Nichols and Keane v. Stratford (note 23); Grosz v. Miami Beach, see supra note 18; and Rabbi Yitzchok Leblanc-Sternberg et al v. Robert Fletcher et al, see supra note 25, are each cases of a person being restricted from conducting religious meetings at their primary residence. These cases would be in the primary residence category.

81. U.S. CONST. amend. I. Congress shall make no law ... abridging the freedom of speech, or of the press ... ")

82. See supra note 18.

83. See supra note 13.

84. See supra note 25.

85. See supra note 23.

86. U.S. CONST. amend. XIV. [N]o state shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws.")

87. Cornerstone, 948 F.2d at 471 quoting from City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985).

88. Lindsley v. National Carbonic Gas Co., 220 U.S. 61 (1911); Daniel v. Family Security Life Ins. Co., 336 U.S. 220 (1949).

89. Belle Terre, 416 U.S. at 9.

90. Id.

91. 473 U.S. 432.

92. Id. at 450. ("In the courts below the city also urged that the ordinance is aimed at avoiding concentration of population and at lessening congestion of the streets. These concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit. So, too, the expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home such as 201 Featherston for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.")

93. Id. at 448. The Court avoided making a determination whether mentally retarded persons comprise a quasi-suspect class that deserved heightened scrutiny because they found that the ordinance did not even serve a legitimate government interest.

94. See supra note 65.

95. Belle Terre, 416 U.S. at 9.

96. New Jersey v. Cameron, see supra note 13; Nichols and Keane v. Stratford, see supra note 25.

97. Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) ("a statute is void if persons of common intelligence must guess at its meaning and differ as to its application"); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972).

98. Cameron, 498 A.2d at 1219.

99. Nichols and Keane v. Stratford, 667 F.Supp. at 12. (..."other religious use" does not provide for the citizen of ordinary intelligence a clear standard by which to regulate his activities. For example, @ 4.1.6.3. does not assure with certainty whether one may hold Passover Seder in his home, whether he may light a Hannakuh Menorah, meet with a group of youths in one‘s home to prepare them for the reception of the sacraments of confirmation or communion, or gather with friends to discuss the Bible.")

100. Griswold v. Connecticut, 381 U.S. 479 (1965).

101. Id.

102. Roe v. Wade, 410 U.S. 113 (1973).

103. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

104. Cameron, 498 A.2d at 605.

105. Lawrence Tribe, American Constitutional Law, 1013 (Foundation Press, 2^nd Ed. 1988).

106. Cole v. Richardson, 405 U.S. 676 (1972).

107. Cameron, 498 A.2d at 610. (Garibaldi, J., dissenting, "I would hold that a home is a church when it is used as the regular site for the traditional services of an organized, recognized religious body, which services are presided over by the ordained minister of that body. When all these elements are present, the use is within the Ordinance‘s commonly-accepted meaning of "church and similar places of worship." Because all of these conditions are met here, I would hold that the Rev. Mr. Cameron‘s home was used as a church within the meaning of the Ordinance.")

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