« Courts - "Big Money and Special Interests Are Warping Judicial Elections" | Main | Law - "In New York Immigration Court, Asylum Roulette" »

Monday, October 09, 2006

Law - "As Exemptions Grow, Religion Outweighs Regulation"

The Sunday NY Times had a story by Diana B. Henriques about religion trumping regulation. A side-bar notes that "Articles in this four-part series examine how American religious organizations benefit from an increasingly accommodating government." Some quotes:

In recent years, many politicians and commentators have cited what they consider a nationwide “war on religion” that exposes religious organizations to hostility and discrimination. But such organizations — from mainline Presbyterian and Methodist churches to mosques to synagogues to Hindu temples — enjoy an abundance of exemptions from regulations and taxes. And the number is multiplying rapidly.

Some of the exceptions have existed for much of the nation’s history, originally devised for Christian churches but expanded to other faiths as the nation has become more religiously diverse. But many have been granted in just the last 15 years — sometimes added to legislation, anonymously and with little attention, much as are the widely criticized “earmarks” benefiting other special interests.

An analysis by The New York Times of laws passed since 1989 shows that more than 200 special arrangements, protections or exemptions for religious groups or their adherents were tucked into Congressional legislation, covering topics ranging from pensions to immigration to land use. New breaks have also been provided by a host of pivotal court decisions at the state and federal level, and by numerous rule changes in almost every department and agency of the executive branch.

The special breaks amount to “a sort of religious affirmative action program,” said John Witte Jr., director of the Center for the Study of Law and Religion at the Emory University law school.

Professor Witte added: “Separation of church and state was certainly part of American law when many of today’s public opinion makers were in school. But separation of church and state is no longer the law of the land.”

The changes reflect, in part, the growing political influence of religious groups and the growing presence of conservatives in the courts and regulatory agencies. But these tax and regulatory breaks have been endorsed by politicians of both major political parties, by judges around the country, and at all levels of government.

“The religious community has a lot of pull, and senators are very deferential to this kind of legislation,” said Richard R. Hammar, the editor of Church Law & Tax Report and an accountant with law and divinity degrees from Harvard.

As a result of these special breaks, religious organizations of all faiths stand in a position that American businesses — and the thousands of nonprofit groups without that “religious” label — can only envy. And the new breaks come at a time when many religious organizations are expanding into activities — from day care centers to funeral homes, from ice cream parlors to fitness clubs, from bookstores to broadcasters — that compete with these same businesses and nonprofit organizations.

Religious organizations are exempt from many federal, state and local laws and regulations covering social services, including addiction treatment centers and child care, like those in Alabama.

Federal law gives religious congregations unique tools to challenge government restrictions on the way they use their land. Consequently, land-use restrictions that are a result of longstanding public demands for open space or historic preservation may be trumped by a religious ministry’s construction plans, as in a current dispute in Boulder County, Colo.

This is a very lengthy article. The section that interested me particularly had to do with exemptions from zoning rules. A quote:
In 2000 Congress adopted and Mr. Clinton signed the Religious Land Use and Institutionalized Persons Act, which restored the “strict scrutiny” test to local zoning decisions, making it easier for churches to challenge those decisions in court. The act also made it easier for prisoners to challenge restrictions on their religious practices.

The provisions that apply to prisoners have been upheld, but the Supreme Court has not yet ruled on the land-use provisions that Rocky Mountain Christian Church is invoking in its lawsuit against Boulder County. One of the church’s allies in the fight is the Justice Department’s civil rights division, which is defending the law’s constitutionality in cases around the country. * * *

Critics of the 2000 law argue that the First Amendment itself has long prohibited religious discrimination in zoning, and that such zoning decisions could have been challenged just as successfully in the courts if the law had never been passed.

When Congress considered the law, “what was actually being discussed was ‘How do we make sure churches don’t get discriminated against,’ ” said Marci A. Hamilton, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan and the author of “God vs. The Gavel: Religion and the Rule of Law” (Cambridge University Press, 2005), which calls for closer scrutiny of some religious exemptions, especially those affecting land use and family law.

“Unfortunately, the answer was to give such an expansive remedy that not only are they not getting discriminated against, but they are now capable of discriminating against all other landowners,” added Professor Hamilton, who is advising Boulder County in its case.

The financial stakes in the Boulder lawsuit are large.

Under the 2000 law, if the county loses, it will have to pay not only its own legal bills but also those of the church. If the church loses, it will sacrifice the money it has spent on legal, architectural and public relations fees, but it will not be required to pay the county’s legal bills. And unlike the county, it could seek free legal help from various religious advocacy groups, although it has not yet done so.

While a county victory might provide other local governments with a template for defending against similar challenges, some lawyers fear that if Boulder County, with its long history of careful land-use planning and its environmentally demanding voters, cannot successfully argue that preserving open space is a “compelling public interest,” few local governments could.

“Religious institutions have realized that land-use authorities are vulnerable to the threat of litigation,” David Evan Hughes, the deputy county attorney, asserted in the county’s court filings. Without greater clarity from the courts, he continued, the new law’s reach “will expand to the point where religious institutions are effectively dictating their own land-use regulations.”

The story includes links to the County of Boulder v. Rocky Mountain Christian Church filings.

This is not an isolated situation. A dispute has been going on for years here in downtown Indianapolis over whether a church in a historical district can blacktop a number of nearby lots intended for infill housing in the histroric district plan to use for parking.

Here is a list of previous ILB entries on the RLUIPA.

[More] Today's (Monday's) article, the second of the four part series, is titled "Where Faith Abides, Employees Have Few Rights." It too is very, very long and deals with employment law. A sample:

Legislators and regulators are not the only people in government who have drafted special rules for religious organizations. Judges, too, have carved out or preserved safe havens that shield religious employers of all faiths from most employee lawsuits, from laws protecting pensions and providing unemployment benefits, and from laws that give employees the right to form unions to negotiate with their employers.

Some of these exemptions are rooted in long traditions, while others have grown from court decisions over the last 15 years. Together, they are expanding the ability of religious organizations — especially religious schools — to manage their affairs with less interference from the government and their own employees.

The most sweeping of these judicial protections, and the one that confronted the novice nun in Toledo, is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years.

As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

I recall blogging about at least one (perhaps two) such cases during the past few years -- I'll try to locate it/them.

Posted by Marcia Oddi on October 9, 2006 02:37 PM
Posted to General Law Related