Where to Pray? Religious Zoning and the First Amendment
Cordes, Mark W.
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Despite emerging recognition that the normal rules do not apply when zoning affects first amendment activities, the Supreme Court has not yet definitively addressed zoning restrictions that affect the exercise of religion. As with other land uses, churches have been made subject to a variety of zoning restrictions. Concurrent with the growing municipal desire to establish and preserve residential communities has been the emergence of the modern church as a multi-purpose facility that serves a variety of functions. As a result, churches are more intense land users than their predecessors and are viewed with growing frequency as incompatible with residential surroundings. The central concern surrounding church zoning has been and still remains locational restrictions on conventional church buildings, both in terms of blanket exclusions from residential neighborhoods and special-use permit requirements. A second emerging issue in church zoning concerns the types of secondary activities that can be conducted on church premises. Of particular importance in the last several years is whether a church may operate a private religious school or day care center on its property. A third emerging issue is the extent to which church zoning ordinances can be used to limit religious assembly in private homes. Religious organizations have reported numerous attempts by municipalities to apply zoning ordinances to prohibit more informal religious gatherings such as home Bible studies or prayer groups. These incidents suggest the need for a clear understanding of a municipality's ability to regulate religious activities in private homes. This article will attempt a comprehensive review and analysis of the church zoning issues outlined above. The general thesis of this article is that, although churches can be made subject to zoning ordinances and other forms of land use controls, Supreme Court precedent indicates that the Constitution requires application of the intermediate level of review to ordinances regulating churches, rather than the "mere rationality" standard normally applied to zoning ordinances. As applied, this intermediate level of review suggests that the traditional position in the majority of states that zoning ordinances cannot exclude churches from residential areas is unwarranted. At the same time, the "mere rationality" approach fails to provide sufficient scrutiny of zoning restrictions on churches. The article will first discuss principles and judicial attitudes toward church zoning. Part two will discuss first amendment considerations in church zoning, examining the scope of free exercise protection, time, place, and manner restrictions, and zoning restrictions on first amendment conduct. Part three of the article will then apply that analysis to locational restrictions on churches, examining both blanket exclusions from residential districts and the regulation of church location through special use permits. Part four will examine the permissible scope of accessory activities a church can conduct on its property, with special attention to the question of church schools. Finally, part five will discuss the regulation of religious activities in the home.