Part III: A;ternatives and Principles

A. Nuisance Law - An Alternatives to Zoning Law¹⁰⁸

The zoning ordinance is not the only check on potential adverse impact to neighbors from house meetings. The common law provides a private action for nuisance when a person unreasonably interferes with the use and enjoyment of a neighbor's land. Even the origin of zoning ordinance jurisprudence is founded in nuisance law.¹⁰⁹ Shelley Ross Saxer wrote an article proposing the need to move away from zoning and return back to nuisance law to regulate property used by religious organizations.¹¹⁰ The thrust of Saxer's article dealt with the problem of church accessory uses, such as feeding and sheltering the poor. However, this proposal carries much merit as applied to house meetings. The prevalent trigger to enforcement and prosecution is usually a few disgruntled neighbors, sometimes only one.¹¹¹ However, a single complaint can then activate the full force of the prosecutorial powers of the government. This potential for a lack of proportionality is described by Justice Clifford:

The offensive effect of the group's conduct [...] amounted to no more than a complaint by one of Cameron's neighbors that singing could be heard from a distance of eighty feet away and that on one occasion a guest's car was parked in front of his house. The might, majesty, dominion, and power of the State of New Jersey are marshaled to combat these conditions, through enforcement of a zoning restriction against churches in a residential zone, in order to stifle the religious activities described above.¹¹²

In a case like Cameron, a private nuisance action appears to be a far more balanced recourse for a disgruntled neighbor. If there is merit to a claim of nuisance, then judicial relief through a private nuisance action is available to the neighbor. However, a private resident, such as in Cameron, who is reasonably conducting a gathering in his home should not face government prosecution all the way through the state supreme court because of one neighbor who may have been unreasonable.

In the search for wisdom, the principle of private nuisance action as opposed to government zoning ordinance should be considered as a far more proportionate check-and-balance in regards to house meetings. Private nuisance action provides for a case by case balancing of the rights to hold religious gatherings in one's own home and the rights of neighbors not to be unreasonably deprived of the use and enjoyment of their land. In addition, it relieves the government from problems of Constitutional infringements such imposing a prior restraint and creating a chilling effect on free speech and free exercise of religion.¹¹³

B. Biblical Analysis

1. Biblical Principles for Government Regulation of Religious Exercise

Conflicts over governmental infringement of religious exercise existed as far back as God's challenge to Pharaoh to "Let my people go, that they may serve me in the wilderness."¹¹⁴ It was typical throughout most of history that government operated in strong partnership with the religious leaders such that there was no distinction in jurisdiction. The state religious authority was either one-in-the-same or in close relationship with the governmental authority. In most societies, there was little toleration for differences with the state religion. This was true in ancient Egypt, Old Testament Israel, Babylon,¹¹⁵ Greece, and Rome. This system of monolithic state religion has been termed sacralism.¹¹⁶

Jesus Christ brought about a complete shift to the idea that all citizens of a country must be of a homogenous religion. The Gospel of Matthew tells of an account where the Pharisees sought to entangle Jesus.¹¹⁷ They asked Jesus, "Is it lawful to give tribute unto Caesar, or not?"¹¹⁸ The reason that this was such a dilemma was that the Pharisees saw that paying tribute as inherently part of honoring the state religious system. Jesus was not trapped in the same dilemma because He did not accept the sacralist view of a national religion. Rather Jesus set forth the concept of separate jurisdictions in His response, "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God&slquo;s."¹¹⁹ Christ reinforced this concept by instructing his followers to allow for unbelievers to exist along next to believers.¹²⁰ This revolutionary concept recognized that a community of believers could exist within a nation without being subsumed by the nation.¹²¹ In addition, Christ did not envision maintaining the old order of state religions by convert a nation through removing the existing national object of worship and substituting a "Christian" object in its place.¹²²

Maintaining conformity to a state religion has inevitably required the state to exercise coercion of its dissidents. Historically, states have not been hesitant in employing the coercion necessary to maintain adherence to the state religion. Unfortunately, this is exactly what happened when Constantine declared that Christianity was the state religion of the Roman Empire. "Christianity" replaced the old national object of worship. This changed in religion was enforced through the power of the Emperor's sword just as every other change in the empire was enforced. Even a thousand years later, the Reformation churches continued to embrace the sacralist model of church state relations.¹²³ It was not until the emergence of the United States that the Biblical principle of limited governmental jurisdiction was officially recognized and applied to eligious practice and belief. This monumental paradigm shift represented a victory of the Biblical conviction of a much persecuted remnant of Christians, generally known as Ana-baptists. They opposed the churches' embrace of government power, whether it be the Roman Catholic Church or the other state churches of the Reformation. They saw the sacrilist view of the government-church relationship as being inconsistent with Christ's teaching. The principle of limited government in the areas of conscience and religious practice is a New Testament concept that stands in stark contrast with world history. The attempt to replace a non-christian state religion with a "Christian" state religion was a corruption of New Testament teaching not a fulfillment of it.

The triumph of religious freedom that took place in the United States was a fulfillment of the New Testament instruction to allow "the tares and the wheat to grow together." This principle is further illustrated by the instructions given for church discipline. The most severe discipline given for the church to practice was to disfellowship the unrepentive, "let him be unto thee as an heathen man and a publican."¹²⁴ Inherent in this principle is tolerance and respect for others to choose how they will worship. A most basic practical ramification of this principle is the respect for one's home. In addition, the allowance for like-minded people to gather in house meetings of reasonable size is only a logical conclusion of freedom of religion. During New Testament times, the predominant meeting place of believers was in one another's houses.¹²⁵ Therefore, it is in keeping with New Testament principles and a most unique and precious heritage that the United States recognizes and protects a person's inalienable right to worship according to the dictates of his conscience. For this to have any meaning, gatherings in one's own home that do not unreasonably interfere with the use and enjoyment of other's property would also necessarily receive protection. As Joshua said, "And if it seem evil unto you to serve the LORD, choose you this day whom ye will serve; ... but as for me and my house, we will serve the LORD."¹²⁶

2. Biblical Principles for those Conducting and Attending a House Meeting

Scripture provides clear principles for the proper manner of treatment of neighbors. In framing the Golden Rule, Jesus stated, "Thou shalt love thy neighbour as thyself."¹²⁷ Christians behavior should be such that it is beyond reproach and not interfering with a neighbor's reasonable use and enjoyment of his property.¹²⁸ Therefore, those that seek to hold house meetings should provide no cause for a reasonable offense or violation of legitimate ordinances.¹²⁹ For those who fear God and are on the receiving end of discrimination or prosecution, the first principle is to trust God for deliverance. It may be that God has raised up this conflict for an opportunity for His Gospel to be demonstrated.¹³⁰ After Moses appealed to Pharaoh, the only recourse that the Hebrews had was to cry out to God and trust His deliverance from Egyptian persecution. God‘s subsequent deliverance was stupendous, confounding the conventional geo-strategic thinking of the day.

C. Permissible Types of Government Regulation

For house meetings in someone's primary residence, the government can regulate secondary effects such as parking, noise, and occupancy levels provided that the ordinance is non-discriminatory on its face and as enforced. In addition, regulation of these secondary effects can be prescribed for limited time periods in a day (e.g., noise limits are in effect from 11 p.m. to 7 a.m.). These regulations must also have a rational basis in addressing a legitimate government interest.

In a current Denver case,¹³¹ a zoning ordinance was regulating the frequency of the house meetings (i.e., residential gatherings no more that once per month). This type of regulation could be neutrally worded on the face and neutrally applied. However, this type of regulation raises other issues, such vagueness (i.e., what is considered a gathering?) and whether the government has a legitimate interest in regulating how often a resident can have guests over to their house. To tightly control such a personal liberty, would also raise issues such as freedom of speech, freedom of association, and privacy. A regulation that constrains gatherings at one‘s house to no more than once per month can be a substantial loss of liberty, especially if a gathering is defined to include as few people as six or eight.

However, this comment suggests that, for the sake of liberty, it is far better to not impose such limits too narrowly. It has been said that a government that governs least, governs best. When it comes to private gatherings in a person‘s house, this is a most appropriate principle. It is far better for neighbors to work out conflicts between themselves rather than resorting to the government for prosecution for slight offenses. This paper suggests that the government should provide regulations only for clearly substantial breaches of the peace. More minor controversies can be resolved among neighbors in a civilized manner. Should that fail, the private action of nuisance is always available so that a judge can sort out the "wheat from the chaff" on a case by case basis.

Organizations that wish to use a residential dwelling as a dedicated meeting facility so that it is not serving as a residence will receive far less Constitutional protection. Because the government has a legitimate interest to differentiate between primary residences and non-residences, the government can employ time, place, and manner restrictions. Therefore, the government can require special permits and variance hearings before allowing an organization to occupy and convert a house for non-residential purposes. This comment suggests that one of the determining factors to what level of constitutional protection is available is whether a religious house meeting is being conducted in someone's primary residence. If not, then the government has much greater lead way at distinguishing between this use and the normal type of gatherings that occur at a person's primary residence.

Conclusion

The Constitution of the United States provides substantial protection for house meetings and gatherings in one's own residence. The government is forbidden from discriminating based on the speech content of the house meeting. In addition, the government must have a legitimate basis for classifying one group for different treatment than another. The government does not have a legitimate interest in applying stricter requirements on gatherings with religious purposes than it does on gatherings with secular purposes. Heighten protection is available to one‘s primary residence. Furthermore, the government is prohibited from regulating a house meeting in a person's primary residence because the meeting is related to an organization.

The U.S. Supreme Court's current jurisprudence regarding the free exercise of religion does not provide substantial protection to house meetings unless it can be coupled with the violation of other fundamental rights. As discussed supra, there are several fundamental Constitutional liberties that do provide substantial protection for house meetings. However, one must show that these liberties are being substantially burdened before the Free Exercise Clause will bring protection.

As some homeowner associations have become intolerant of minor house alterations, and governments feel the pressure to respond to every citizen complaint, it is of great importance that foundational, inalienable rights do not become trampled or forgotten. It remains for law-makers to protect our great heritage of liberty from the swings in political pressure. Should law-makers succumb, it remains to the judiciary to uphold the guarantees provided by U.S. Constitution. However, it remains for Christians to have unreproachable conduct towards their neighbors, bearing injustice with joy, trusting that God will use their situations for His purposes.