Freedom of Access

Working together, the rights to free speech and freedom to exercise religious beliefs provide religious organizations the same access to public venues, government programs, and land use that other community groups receive. There are even two relatively new federal statutes that provide added protection in some instances – the Religious Freedom Restoration Act (“RFRA”) and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The fact that an organization may be religious does not provide the government with an excuse to discriminate against it, and federal law prohibits such discrimination in most cases.

A. Protecting the Church from government policies that discriminate against religious organizations in gaining equal access to public venues.

Religious meetings are protected under the Free Speech Clause of the First Amendment.³⁰   The Supreme Court has consistently held that targeting religious groups for unfavorable treatment is viewpoint discrimination and blatantly unconstitutional.³¹    The Lamb’s Chapel case exemplifies this rule. There, a school district’s Community Use Policy allowed community groups to rent school facilities after hours for any number of secular purposes, but the policy prohibited use by a church to show a Focus on the Family film about child rearing. The sole reason for this discrimination was the film’s religious perspective. The Supreme Court said the school’s actions were unconstitutional and allowed the church access to the school to show the religious film.

Excluding religious groups from forums otherwise open to the community also violates the right to free exercise of religion under the First Amendment. The government may not impose “special disabilities on the basis of religious views or religious status.”³²   Generally, the government may only justify policies that burden the free exercise of religion if the policy is neutral and generally applicable.³³   For example, a facility-access policy is not neutral and generally applicable if it allows community groups to hold secular meetings, but excludes “religious services.”

Administrators of government-owned forums such as library rooms and schools often claim that they must exclude religious organizations because of the so-called “separation of church and state.” But the Supreme Court has long held that allowing religious groups to have the same access to government facilities as other community groups does not violate the Establishment Clause. Where a forum is available on equal terms to a broad class of speakers, allowing religious speech “does not confer any imprimatur of state approval on religious sects or practices … [since] the forum is available to a broad class of nonreligious as well as religious speakers.”³⁴

B. Protecting churches against land use ordinances that discriminate against churches.

The benefits churches and other religious organizations provide communities are well-recognized, even by the Supreme Court.³⁵   Nevertheless, when it comes to land use, many zoning boards are treating churches worse than they would a commercial business — or in some cases, worse than a sexually oriented business like a strip club or porn shop.

The good news is the federal Constitution and a federal statute called the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)³⁶ provide a great deal of protection to religious organizations that are being discriminated against when it comes to land use.

First of all, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires that the government treat equally all those who are similarly situated to one another.³⁷  When government action infringes a “fundamental right,” then courts will presume that the action is unconstitutional. The government may then justify its actions only if it can show that the action was narrowly tailored to serve a compelling government interest.³⁸  Because the free exercise of religion is a fundamental right³⁹ and a church’s use of its property constitutes religious exercise⁴⁰, governments cannot treat land use by religious institutions differently than use by similar secular groups. It is very difficult for governments to demonstrate even a legitimate – much less compelling – interest that would justify discriminating between religious and secular land uses.⁴¹

Secondly, “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or if it regulates or prohibits conduct because it is undertaken for religious reasons.”⁴² If the government is regulating a religious organization’s land use solely because it is undertaken for religious reasons, it must undergo strict scrutiny, and will likely be held unconstitutional.⁴³

Finally, RLUIPA protects the free exercise of religion by prohibiting local governments from imposing a land-use regulation that places a substantial burden upon, or acts in a discriminatory manner against, churches or religious organizations. RLUIPA § 5(g) states that it should be construed broadly to protect religious freedom. And RLUIPA § 2(b) prohibits the government from imposing a land-use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. RLUIPA’s “equal terms” provision does not allow a government to escape liability even if it can demonstrate a compelling interest for its discrimination.⁴⁴   Local governments are strictly liable for violating this provision.

Communities cannot completely zone churches out of their municipality, and they must treat religious land use the same as other similar uses. For example, churches cannot be required to locate on at least 10 acres of land, while theaters and social service organizations are permitted to buy much smaller pieces of property for their buildings. The federal Constitution and federal statutes should recognize the benefits religious organizations provide their communities and protect them accordingly.

C. Protecting the Church from Government Programs that Discriminate Against Religious Organizations.

The Supreme Court has consistently held that religious organizations can participate in government programs so long as the government provides benefits to all community organizations neutrally.⁴⁵  And federal courts have often held that neutrality toward religion is the only way for the government to successfully balance the delicate requirements of both the Establishment Clause and the Free Exercise Clause.⁴⁶  The government may not establish religion on the one hand, but it must not hinder its free exercise on the other. So “religious institutions need not be quarantined from public benefits that are neutrally available to all.”⁴⁷  This rule makes a great deal of sense. Without it, churches and ministries would have to supply their own roads, utilities, and fire protection.

The principle of religious neutrality is expressed in the Supreme Court’s Lemon test, which directs that a religious organization’s participation in government programs is permissible if the program: 1) has a secular purpose; 2) has a principal or primary effect that neither advances nor inhibits religion; and 3) does not foster an excessive entanglement with religion.⁴⁸ The Supreme Court later simplified this test somewhat by collapsing the “excessive entanglement” inquiry into the “effect” prong.⁴⁹  So the test became a two-fold inquiry: 1) Did the government act with the purpose of advancing or inhibiting religion? and 2) Did the government aid have the primary or principal “effect” of advancing or inhibiting religion?⁵⁰

An excellent example of application of the neutrality rule is a recent case involving the City of Detroit and its efforts to spruce up the downtown area in preparation for the Super Bowl. The city instituted a program that allowed downtown property owners to make repairs to the outside of their buildings, and then be reimbursed by the city for part of the costs. Of course, the city allowed churches to participate, because it would make no sense to have all the buildings except churches looking nice for the city’s day in the national spotlight. But the American Atheists heard about the program and sued the city. Alliance Defending Freedom intervened on behalf of St. John’s Episcopal Church, which had spent thousands of dollars improving landscaping, signage, and other exterior facets of the building – types of work that were clearly within the intent of the program. Alliance Defending Freedom successfully defended the church, and the case was an important win for religious freedom. Both the trial court and the U.S. Court of Appeals for the Sixth Circuit agreed that allowing churches to participate in the program was neutral as to religion, and thus constitutional.⁵¹ 

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Footnotes