Good morning Mr. Chairman and members of the Committee. I am very honored to appear before this Committee and to sit at this table with colleagues for whom I have the greatest respect and who have long provided excellent leadership in the protection of religious liberty. I especially appreciate the opportunity to share my views and insights on one of the most important topics facing Congress today: passage of legislation ensuring religious liberty throughout the United States.

For almost a decade, as an attorney in the law firm of Kirton & McConkie in Salt Lake City, I have served as counsel to The Church of Jesus Christ of Latter-day Saints (sometimes referred to as the "LDS Church" or "Mormon Church"). With more than 10 million members worldwide, and with almost 5 million of those members in the United States, the Church has a significant presence in every State of the Union, with active members in almost every city and town.

At different times over the past 175 years, the Church and its members have faced numerous assaults on their religious liberty. Some of those assaults have been stark and violent; others have been much more subtle and difficult to discern. I will provide a more general discussion of some of these modern-day difficulties towards the end of my testimony. However, at the outset, I desire to focus on one of today's most important -- and sometimes overlooked -- issues of religious liberty: The right of individual members to gather together in a place of worship, where they may learn from one another, edify each other, instruct one another, and receive important ordinances and blessings.

As eloquently expressed in The Williamsburg Charter, "Religious liberty in a democracy is a right that may not be submitted to vote and depends on the outcome of no election. A society is only as just and as free as it is respectful of this right, especially toward the beliefs of its smallest minorities and least popular [religious] communities."⁽¹⁾ Rather than at the whim of the majority, the Charter continues, this right "is premised upon the inviolable dignity of the human person."

These provisions reflect a deep commitment -- a "social compact" -- to respect and accommodate the religious sentiments, practices, and needs of the many and diverse religions in this nation, even when to do so is inconvenient or annoying. Our history affirms that such constitutional provisions and the commitment they represent also constitute "articles of peace" among our nation's numerous religious denominations, allowing them to live together tranquilly despite at times profound theological differences. As such, they constitute an indispensable ingredient of America's relatively peaceful pluralistic society.

From its very inception, The Church of Jesus Christ of Latter-day Saints has recognized and strongly supported this concept. The Church's Eleventh Article of Faith states: "We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may."

For tens of millions of Americans, "worship" means worship in community -- in chapels, synagogues, and temples, in the communion and strength of fellow believers. Community faith and the prayers of co-believers are often essential to the deeply personal meaning of religion. Indeed, entire modes of worship -- the sermon and the mass, for instance -- can only be experienced in community. The right to erect buildings where communities of faith may gather is therefore a fundamental and indispensable aspect of the indefeasible right to worship.

This is especially true in the LDS faith. In order to gain eternal exaltation -- which for LDS believers means the ultimate spiritual glory -- members of the Church strongly believe that they must receive specific ordinances through the authority and power of God. According to central Church doctrine, the highest of these ordinances can only be performed in the most sacred and hallowed of LDS buildings: the temple. Thus, for members of The Church of Jesus Christ of Latter-day Saints, the right to erect buildings (especially temples) lies at the core of their religious practice. Without these buildings, certain ordinances cannot be performed. And without these ordinances, exaltation is not possible.

As a result of these strongly held beliefs, and because The Church of Jesus Christ of Latter-day Saints is one of the fastest growing religious organizations in America, the Church by necessity is constantly engaged in the building of temples and other church buildings. It therefore finds itself continuously before planning commissions, city councils, boards of commissioners and other local governmental entities that control land-use and planning within the community. While an overwhelming majority of these government officials work with the Church in good faith, I fear that ignorance and even hostility toward religion do sometimes operate behind the facade of ostensibly neutral land use regulations. In these instances, local communities -- most times just ignorant of religious beliefs, but at times antagonistic towards them -- set broad "generally applicable" and "neutral" policies and development plans without any attempt to understand the religious beliefs affected thereby, and without any attempt to craft what can often times be a very minimal exception which will allow full religious liberty.

The growth of government at all levels, combined with government's tendency to over-regulate, demand additional protection for religious practice if a full measure of religious liberty is to be realized. Land use provisions in particular characteristically involve permit schemes which grant local officials virtually unlimited discretion to determine whether religious practices may go forward. Free exercise rights are of little practical value if we permit control of the meeting place of a church to pass from its members to government outsiders without any real examination of the government's asserted need for such control. Yet, unless the goals of regulatory agencies are tested against more searching scrutiny than "neutrality" and "general applicability", agency officials have no occasion and no motivation to weigh the value of pursuing their regulatory goals against the substantial burdens this pursuit may impose on the free exercise of religion.

Under the current application of free exercise law, a claimant whose religious practice is burdened by an otherwise "generally applicable" and "neutral" law can obtain relief only by carrying the heavy burden of proving that there is an unconstitutional motivation behind a law, and thus, that it is not truly neutral or generally applicable.⁽²⁾ The difficulties in doing so are considerable. Assuming that government decision makers intend the reasonably foreseeable consequences of their lawmaking actions, judges can of course make responsible judgments about the purpose of a law based on its language and effect. Once the inquiry ventures past these external indications of purpose to the subjective intentions of members of the lawmaking body, however, reliable conclusions about government motivations are nearly impossible to reach. Although statements of intention by individual decision makers can sometimes be found in legislative histories, such histories are not always compiled, particularly in cases involving state and local legislation or discretionary administrative action, and are in any event subject to manipulation. Even when they exist, statements of individual decision makers, while highly probative of the intentions of those who make them, are only circumstantial evidence of the motivation of the decision making body as a whole. Finally, courts are understandably reluctant to find unconstitutional motivations because of the implicit insult such a finding directs at members of the decision making body.⁽³⁾ This is especially true when, as is almost always the case, direct evidence of unconstitutional motivation is totally lacking.⁽⁴⁾

The virtual impossibility of adducing strong evidence of illicit motivation, combined with the reticence of judges to find such motivation on anything but the strongest evidentiary record, suggest that deserving religious claimants will frequently be unable to show the impermissible motivation behind facially neutral and general laws, even in situations in which the government decision making body in fact intended to restrict their religious practice, or consciously valued secular interests over religious ones. That suggestion is born out strongly in the land use area, where discretion of local government entities -- and the reluctance of courts to secondguess the motives of those entities -- are at their strongest.

Given the difficulties described above, there is certainly no exact way to measure religious animus or anti-religious motivation within the land use context. However, in an effort to provide some basic guidance and understanding in this area, a group of highly regarded law professors at Brigham Young University joined together with attorneys at the prestigious law firm of Mayer, Brown & Platt in Chicago to conduct a study of religious liberty in the land use arena. The full study, completed in January 1997, is attached as Appendix A to my testimony. I urge the Committee to review it in depth. In the interests of brevity, I shall provide you only with some highlights.

The study starts from the basic proposition that "generally applicable" and "neutral" land use decisions and policies should impact all religions (and other land use applicants as well) in a consistent way. The joint study not only failed to find this consistency, it found a huge disparity. Most striking is that, while minority religions represent just less than 9% of the general population, they were involved in over 49% of the cases regarding the right to locate a religious building at a particular site, and in over 33% of the cases seeking approval of accessory uses of an existing church site (such as sheltering or feeding the homeless). This disparity becomes even more distressing if one takes into account cases involving non-denominational religious groups, or groups that could not be classified on the basis of information in the case reports. If these unclassified cases are counted, over 68% of reported location cases, and over 50% of accessory use cases, involve minority and unclassified religions.

To be sure, Mr. Chairman, a study of this type can never provide a perfect and full picture of the land use process as it affects religion. There may indeed be other factors which have some influence on the study's outcome. Taking that into account, we who have reviewed the study might not be so concerned if there were only some minor disparity. But the huge disparity -- in some cases in excess of 50% -- revealed by the study is very difficult to dismiss on the basis of other, unrelated factors. Put bluntly, at least in the area of land use, minority religions are apparently carrying a much heavier load as they deal with so called "generally applicable" and "neutral" laws. That is of special concern to all of us, because throughout this great nation of religious diversity, there is one area or another where every religious body is a minority.

The difficulties faced in the land use area are clearly exemplified by the recent experience of The Church of Jesus Christ of Latter-day Saints with the City of Forest Hills, Tennessee, just outside Nashville. In 1991, coincidentally only a short time after the United States Supreme Court's decision in Employment Division v. Smith⁽⁵⁾, the City of Forest Hills adopted an entirely new Comprehensive Plan covering development within the City. The Plan was based on "the overwhelmingly residential aspect of the City",⁽⁶⁾ and limited any new development within the City to single family unit dwellings. Specifically as it applied to churches, the City's Plan set up an "Educational and Religious Zone" for schools and churches, but then limited that zoning designation to schools and churches that already existed within the City. Thus, the four existing churches within the City received the "ER" zoning designation, as did the one school. No other land was zoned "ER", and under the Plan, there was therefore no other property available for the construction of a new religious building.⁽⁷⁾

Additionally, the City established extremely strict requirements for the changing of any zone under the existing City Plan. Although any entity could make a request for such a zone change, the zoning would be changed only if the applicant seeking the change could satisfy the City either that (1) "the City made a mistake in zoning the property" in the first place; or (2) "a change in condition has occurred making the property more suitable for ER use than for residential use."⁽⁸⁾

In 1994, The Church of Jesus Christ of Latter-day Saints determined a need for a temple within the City of Forest Hills. Accordingly, under the established City procedures, it sought a zone change for property that it owned within the city limits. This application was resoundingly rejected by the Planning Commission and by the City Commissioners.⁽⁹⁾

Believing that the City's rejection of its application may have resulted simply because its parcel was in a relatively sensitive area of the City, and taking the City at its word that it would give open and fair consideration to a zone change of another more appropriate parcel, the Church abandoned its attempts to have the first piece of property rezoned and acquired a second piece of property for its temple. This twenty-acre parcel sat on the northwest corner of an intersection of two major arterial roads. Several years before (previous to the City's adoption of its new Comprehensive Plan) a church building had actually stood on this piece of property. Three other churches of different denominations are immediately nearby: one diagonally across the same intersection, one directly across the street to the west, and another just one lot further to the west.⁽¹⁰⁾

Sensitive to the City's concerns about the size, height, acreage and capacity of the temple, the Church surveyed the four existing churches in the City. It then designed a temple well in keeping with the size and the capacity of the other church buildings within the community.⁽¹¹⁾. The following table shows the comparison:

With these comparisons, and now with a site that was bordered by other churches, the Church approached the Planning Commission to seek a rezone of its parcel. In a divided decision, the Commission refused. Citing the "suburban estates character of the area", and also expressing some concern that traffic could be increased, the Planning Commission expressly concluded that granting the Church permission to build a temple on the site would not be "in the best interests of and promote the public health, safety, morals, convenience, order, prosperity, and general welfare of the City."⁽¹²⁾ The City's Board of Commissioners accepted this recommendation and denied the rezoning for identical reasons.⁽¹³⁾

With it now painfully clear that the City would not approve any site within its boundaries for a zone change, and with all property zoned "ER" already occupied by the four existing churches, the LDS Church -- with some reluctance -- determined that it would file suit against the City. It did so because of the important legal and religious freedom principles that it believed were in play: Specifically, that a City did not have the right to zone out all new churches.

Suit was filed by the Church in 1995 in the Tennessee State Chancery Court. The parties generally stipulated to the facts, as I have related them above. The judge issued her decision in January of this year. In assessing the City's adoption of its new Comprehensive Plan, the judge determined -- exactly as the Church feared -- that "[t]he City adopted ER zoning districts to better control the development of religious use within the City." She also found that there was "no existing undeveloped site zoned ER in the City" -- that is, there is "no property in the City . . . zoned ER on which the Church can construct a temple."⁽¹⁴⁾ Lastly, the judge determined that the City's refusal to rezone the site was "essentially aesthetic, to maintain a 'suburban estate character' of the City."⁽¹⁵⁾

With these findings, the Church argued strenuously to the judge that she must apply the strict scrutiny analysis to the City's refusal to rezone the property. If not, the Church argued, then a City can essentially shut its doors to new churches merely by stating that the building of a new church within City boundaries is not in keeping with the "aesthetic" interests of the community. Such a test gives complete and absolute discretion to the City, while unjustly and unnecessarily trampling on the religious rights of individuals to worship together in a community.

Given the governing First Amendment standard, however, the judge simply could not get past the "generally applicable" and "neutral" test established in Smith. Determining that the City desired to control -- and essentially to eliminate -- all non-single dwelling development within the City, the Court determined that the City's actions were "generally applicable" and "neutral" as they affected religion. The intent of the City, she concluded, " was not directed to restricting the right of an individual to practice their religion, the intent was to regulate the use of the City's land."⁽¹⁶⁾ She then stated:

This Court has labored long to determine the appropriate standard of review in light of the seriousness of the religious challenge raised by the Church. However, there does not appear to be any direct or overt discrimination contained in the Ordinance or Plan, there is no evidence of discriminatory intent directed at the Church, specifically or generally, there is no proof of any indirect discrimination which this Court can discern from the record before it, nor is there any proof that the Ordinance is anything but neutral and generally applicable. In light of the U.S. Supreme Court's holdings in similar matters, this Court must hold that the challenge to the Ordinance as unconstitutional is without basis and must fail.⁽¹⁷⁾

I want to make one thing very clear, Mr. Chairman. I know of absolutely no definitive evidence showing that City officials in Forest Hills intentionally engaged in religious discrimination against the LDS Church. That, however, is exactly the problem. If the Church had such direct evidence of religious prejudice, it would not be in need of any new statutory protection. Smith itself makes absolutely clear that, if a party can show religious animus or prejudice in a governmental decision, the strict scrutiny test must be applied. The difficulty is that such direct prejudice is impossible to prove in all but the most unusual cases. When any city can close its doors to new churches while allowing other, long-established churches to operate within its boundaries, when that city can give the thinnest of reasons for that action (such as "aesthetics" or preserving the "suburban estate character" of the city), and when a court will only review those reasons under the lowest form of scrutiny to determine if they are "rational" or "irrational", I submit to you that we leave some of the most essential components of religious freedom at the total mercy of local governments. In such situations, at least in the land use context, city government becomes judge, jury, and executioner. For minority religions especially, this is an extremely sobering thought.

Mr. Chairman, I do not wish my testimony to be misunderstood. Local governments and local citizens should have a strong say in how their community is to be developed. A city need not and should not merely bow to the absolute demands of a church as to where it will construct a religious building within the city and as to how that building may appear. All of us who work daily on these issues, I believe, think that there is a balance to be struck here. But the current status of the law leaves no balance at all, vesting the entire decision and power as to where a church may locate -- or even it if may locate at all -- in the hands of local elected officials. Those of us who spend most of our time working on religious liberty issues find it extremely dismaying and somewhat ironic that, under current controlling First Amendment principles, a city like Forest Hills most probably cannot zone out of its community a sexually oriented adult bookstore, but can totally zone out a church that desires to erect a temple for the use and edification of its religious members. Something is wrong here, and it needs to be fixed.

Mr. Chairman, although I have focused today on the land use issues that plague churches in many different areas across the country, I do not want to leave the impression that this is an isolated topic as far as infringement on religious freedom is concerned. In my experience, numerous religious organizations are experiencing significant infringement upon their beliefs and activities from a wide range of government interference.

A sampling of contemporary post-Smith cases demonstrates that "neutral" laws of "general applicability" now dramatically intrude upon virtually every aspect of religious life. As a result of "neutral" and "general" laws, a Catholic hospital has been denied accreditation based on its refusal to instruct its residents on the performance of abortions notwithstanding their strong religious objections,⁽¹⁸⁾ a religious mission for the homeless operated by the late Mother Teresa's order has been shut down because it was located on the second floor of a building without an elevator,⁽¹⁹⁾ and adult children with strong religious convictions about serving their feeble parents have been prevented from volunteering to care for their elderly parents housed in government-regulated nursing homes.⁽²⁰⁾ In fact, the potential incursion of facially "neutral" and "generally applicable" laws upon religious belief and practice is breathtaking. As noted in an earlier Senate Report, the Smith standard places "all religious activity . . . at risk."⁽²¹⁾

Of course, not every post-Smith intrusion upon religious belief and practice is likely to provoke a collective cry of alarm. Some religious liberties infringed by "neutral" and "generally applicable" laws (such as the right of Old Order Amish to refuse to display a flourescent orange triangle on a horse-drawn buggy⁽²²⁾ or of a Sikh to decline to wear a motorcycle helmet because of a religious obligation to wear a turban)⁽²³⁾ seem rather prosaic in a pervasively secular society. The long-recognized concepts of religious liberty, however, exist precisely because even prosaic violations of conscience are deeply felt. The Constitution exists to protect unpopular ideas, not popular ideas; and many "neutral," "generally applicable" assaults upon religious practice are significant indeed.

As only one example, in You Vang Yang v. Sturner, 750 F. Supp. 558 (D.R.I. 1990), the district court held that an unnecessary autopsy on a young Hmong man did not constitute a violation of the Free Exercise Clause, despite the religiously-based belief of his family that the autopsy condemned the spirit of the deceased. Id. at 560. The court had originally ruled in favor of the Yangs, but -- following Smith -- felt compelled to reverse its earlier ruling. The court nevertheless expressed its deep regret in applying the neutral, generally applicable autopsy law to the facts of the case:

My regret stems from the fact that I have the deepest sympathy for the Yangs. I was moved by their tearful outburst in the courtroom during the hearing on damages. I have seldom, in twenty-four years on the bench, seen such a sincere instance of emotion displayed. I could not help but also notice the reaction of the large number of Hmongs who had gathered to witness the hearing. Their silent tears shed in the still courtroom as they heard the Yangs' testimony provided stark support for the depth of the Yangs' grief. Id. at 558.⁽²⁴⁾

The Church of Jesus Christ of Latter-day Saints has experienced a wide range of difficulties, similar to those discussed by my colleagues today. Many of these infringements go to the core teachings and beliefs of the Church. Over the past several year, literally hundreds of bankruptcy trustees have attempted to recover tithing monies paid by members to the Church. The sacred belief of the Church and its members that ten percent of one's income belongs to God has bowed to trustees and bankruptcy courts that have found the avoidance laws to be neutral and generally applicable.⁽²⁵⁾ The strict confidentiality of communications between member and clergy has come under strong attack, with litigants attempting to gain information or otherwise discover sacred confessional information for use in pursuance of their civil claims.⁽²⁶⁾ Local governments have attempted to impair or altogether eliminate the proselyting of Church missionaries by passing "generally applicable" and "neutral" ordinances placing severe restrictions on the times and places that missionaries may contact door-to-door.⁽²⁷⁾

Mr. Chairman, religious freedom has long been categorized as one of the "First Freedoms" in our Republic. The right to religious liberty applies to all, from border to border, in every State across this great nation. Such freedom should never depend upon the amount of religious sensitivity in a particular community, or on the willingness of local governments to craft appropriate exemptions for religious practice. I urge you and your colleagues to continue your close study of the problem and to craft statutory solutions to protect the religious liberties of all.

I thank you, Mr. Chairman.

APPENDIX

DISCRIMINATION AGAINST MINORITY CHURCHES IN ZONING CASES

In order to gain some perspective on the treatment of non-mainline groups in zoning cases, a broad sample of zoning decisions challenged on free exercise grounds has been analyzed. A total of 196 cases was ultimately included in the study. This set of cases should include a fairly comprehensive set of reported cases in this field. It includes all cases cited in annotations that have collected cases on this topic (including cases cited in pocket part updates),⁽²⁸⁾ all cases cited in the section of a leading treatise on zoning that addresses issues of religious land uses,⁽²⁹⁾ and all cases identified through a Westlaw search classified under West's Constitutional Law Key Number 84.5(18), which collects religion cases involving zoning and land use. It is conceivable that some cases involving religion-based constitutional challenges to zoning decisions may not have been captured through these sources, but it is unlikely that there are many such cases.

The cases thus collected have been classified by the type of zoning case and by the denomination involved. Essentially, the zoning issues fall into two broad categories: cases that involve zoning on property to permit a church building to be erected on a particular site ("location cases"), and cases that determine whether an accessory use (such as a homeless shelter or soup kitchen) may be allowed at the site of an existing church ("accessory use cases").

In most of the cases, the denomination involved is obvious either from the case name or from discussion of the case in the opinion. There are, however, a substantial number of cases in which either no denominational affiliation appears in the case, or the church involved is non-denominational. These cases are designated as "unclassified" in the tables below. While some of the unclassified religious associations may in fact have a denominational affiliation that simply is not evident from the cases, most of these cases appear to involve local, congregationally organized churches that are functionally similar to the organizations we have classified as minority churches.

Information on the size of various denominations was derived from tables provided in Barry A. Kosmin & Seymour P. Lachman, One Nation Under God; Religion in Contemporary American Society 15-17 (1993). The data is derived from the National Survey of Religious Identification conducted by the Graduate School of the City University of New York, which surveyed a representative sample of 113,000 people across the continental United States. This is the most comprehensive poll ever conducted on the issue of religious affiliation. Id. at 1-2. It provides the best available data of religious affiliation as assessed from the perspective of the believer.

The line between mainline denominations and smaller groups is difficult to draw, because one is dealing with a continuum. For purposes of this study, groups with more than 1.5% of the adult population were treated as mainline groups, whereas groups with smaller percentages were included in the minority category. The only exception in the tables that follow is Judaism, but if the statistics on Judaism were divided to reflect the major branches of that tradition, the various branches would come under the 1.5% threshold. Some smaller Protestant groups may be more analogous to mainline groups, so that the categorizations in a few cases could be questioned.

The population percentages in the tables that follow do not add up to 100% because the tables do not include data on non-religious groups and on the portion of the population (only 2.30%) that did not respond to the survey. Many smaller religions were not covered by the study because they have no reported cases, but such religions represent only 2.22% of the population.

In analyzing the data, a basic starting assumption is that any zoning dispute that progresses far enough into litigation to yield a reported decision reflects a situation in which religious groups perceive that their religious rights are being violated. For a variety of practical reasons, ranging from the need to have a good working relationship with local government officials to the sheer cost of litigation to the availability of alternative sites, churches probably bring fewer actions in this area than they think they may be entitled to bring. Table 1 summarizes the number of cases in the location and accessory use categories by denomination:

TABLE 1

The figures indicated in Table 1 already suggest that a substantial amount of the litigation in this area involves minority religious groups. This burden is more pronounced when compared to the percentage of groups from these denominations in the general population. Table 2 provides these comparisons.

TABLE 2

The data in Table 2 are not wholly satisfactory, because the relative populations of various religious groups vary over the rather lengthy period from which the cases are drawn, whereas the population figures, to the extent they are available, are quite recent. Nonetheless, the figures suffice to give a rough sense for how the percentage of cases in which a given religious society is involved corresponds with that society's percentage representation in the population as a whole. These figures strongly suggest that a high percentage of cases are being contested by religious groups comprising a very small percentage of the total population.

TABLE 3

According to Table 3, 63% of religious claims were granted, and 37% were denied. At the judicial level, minority groups appear to fare slightly better than mainline groups: they won 57 cases, or 66% of the cases in which they were involved; majority religions prevailed in 26 cases, or 65% of the cases in which they were involved. Among other things, these figures suggest that judicial review does help remedy the problems minority groups face, and tends to be impartial across groups. Since the data do not indicate that the higher percentage of cases in which minority religions are involved reflect higher levels of ungrounded claims, Table 2's data showing that minority groups face a substantially greater level of problems in the zoning area than mainline churches seems sound.

The percentage of cases in which various denominations' religious challenges to zoning decisions have been won and lost is summarized in Table 4. The figures show the number of claims won and lost both as percentages of the total number of cases and as percentages of the total number of claims in which each denomination (or group of denominations) is involved.

TABLE 4

The foregoing data suggest that a variety of factors are operating in the zoning area in the United States that lead to de facto discrimination against smaller religious groups. This confirms that behind the surface of ostensibly neutral zoning laws, a variety of discriminatory and prejudicial factors may be operational that have the effect of violating the religious rights of minority groups.

To facilitate access to the date provided in this appendix, the cases reviewed are listed below, classified as they have been categorized in the study. Within each denominational category, the citations appear alphabetically by jurisdiction (with federal cases preceding state cases) in reverse chronological order. The parenthetical following the citations includes how the case was classified for purposes of the study. The letters in the parentheticals have the following meanings:

G = The religious organization prevailed on the religious claim asserted.

D = The religious claim asserted was denied.

L = The case was a "location" case.

A = The case was an "accessory use" case.

Catholic:

Keeler v. Mayor & City Council of Cumberland, 940 F. Supp. 879 (D. Md. 1996) (D) (A)

Ellsworth v. Gercke, 156 P.2d 242 (Ariz. 1945) (G) (L)

Ramona Convent of Holy Names v. City of Alhambra, 26 Cal. Rptr. 2d 140 (Ct. App. 1993) (D) (A)

Tustin Heights Ass'n v. Board of Supervisors of County of Orange, 339 P.2d 914 (Cal. Dist. Ct. App. 1959) (D) (L)

St. John's Roman Catholic Church Corp. v. Town of Darien, 184 A.2d 42 (Conn. 1959) (D) (L)

Daughters of St. Paul v. Zoning Board, 549 A.2d 1076 (Conn. App. Ct. 1988) (G) (A)

Hull v. Miami Shores Village, 435 So.2d 868 (Fla. Dist. Ct. App. 1983) (D) (A)

Diakonian Soc'y v. City of Chicago, 380 N.E.2d 843 (Ill. App. Ct. 1978) (G) (L)

Board of Zoning Appeals v. Wheaton, 76 N.E.2d 597 (Ind. Ct. App. 1948) (G) (A)

Society of Jesus of New England v. Boston Landmarks Comm'n, 564 N.E.2d 571 (Mass. 1990) (G) (L)

Sisters of Holy Cross of Mass. v. Town of Brookline, 198 N.E.2d 624 (Mass. 1964) (G) (L)

Mooney v. Village of Orchard Lake, 53 N.W.2d 308 (Mich. 1952) (G) (L)

City of Minneapolis v. Church Universal & Triumphant, 339 N.W.2d 880 (Minn. 1983) (G) (L)

Association for Educ. Dev. v. Hayward, 533 S.W.2d 579 (Mo. 1976) (G) (A)

Black v. Town of Montclair, 167 A.2d 388 (N.J. 1961) (G) (A)

Andrews v. Board of Adjustment, 143 A.2d 262 (N.J. Super. Ct. Law Div. 1958) (G) (A)

Diocese of Rochester v. Planning Board, 136 N.E.2d 827 (N.Y. 1956) (G) (L)

Diocese of Buffalo v. Buckowski, 446 N.Y.S.2d 1015 (Sup. Ct. 1982) (D) (L)

Province of Meribah Soc'y of Mary, Inc. v. Village of Muttontown, 538 N.Y.S.2d 850 (App. Div. 1989) (D) (A)

American Friends of Soc'y of St. Pius, Inv. v. Schwab, 417 N.Y.S.2d 991 (App. Div. 1979) (G) (L)

People v. Kalayjiami, 352 N.Y.S. 2d 115 (App. Div. 1973) (D) (L)

Franciscan Missionaries of Mary v. Herdman, 184 N.Y.S.2d 104 (App. Div. 1959) (G) (A)

Hayes v. Fowler, 473 S.E.2d 442 (N.C. Ct. App. 1996) (G) (A)

Allen v. City of Burlington Board of Adjustment, 397 S.E.2d 657 (N.C. Ct. App. 1990) (G) (L)

Archdiocese v. Washington County, 458 P.2d 682 (Or. 1969) (D) (L)

O'Hara v. Board of Adjustment, 131 A.2d 587 (Pa. 1957) (D) (L)

Stark's Appeal, 72 Pa D. & C. 1681 (Pa. 1950) (G) (A)

In re Appeal of Hoffman, 444 A.2d 764 (Pa. Commw. Ct. 1982) (G) (A)

State ex rel. Roman Catholic Bishop v. Hill, 90 P.2d 217 (Nev. 1939) (G) (L)

Major Protestant:

Baptist:

Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10^th Cir. 1988) (D) (L)

Messiah Baptist Church v. County of Jefferson, 697 F.Supp. 396 (D. Colo. 1987) (D) (L)

Ex Parte Fairhope Bd. of Adjustments, 567 So.2d 1353 (Ala. 1990) (D) (A)

Corinth Baptist Church v. State Dep't of Transp., 656 So.2d 868 (Ala. Civ. Ct. App. 1995 (D) (A)

Cochise County v. Broken Arrow Baptist Church, 778 P.2d 1302 (Ariz. Ct. App. 1989) (D) (L)

Abram v. City of Fayetteville, 661 S.W.2d 371 (Ark. 1983) (D) (A)

City of Chico v. First Ave. Baptist Church, 238 P.2d 587 (Cal. Dist. Ct. App. 1951) (D) (L)

East Side Baptist Church of Denver v. Klein, 487 P.2d 549 (Colo. 1971) (D) (A)

Parkview Baptist Church v. City of Pueblo, 336 P.2d 310 (Colo. 1959) (D) (A)

North Syracuse First Baptist Church v. Village of N. Syracuse, 524 N.Y.S.2d 894 (App. Div. 1988) (G) (A)

Yocum v. Power, 157 A.2d 368 (Pa. 1960) (G) (L)

Antrim Faith Baptist Church v. Commonwealth, 460 A.2d 1228 (Pa. Commw. Ct. 1983) (D) (L)

City of Sumner v. First Baptist Church, 639 P.2d 1358 (Wash. 1982) (G) (A)

State ex rel. Lake Drive Baptist Church v. Bayside Bd. of Trustees, 108 N.W.2d 288 (Wis.) (G) (L)

Episcopal:

Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990) (G) (A)

O'Brien v. Chicago, 105 N.E.2d 917 (Ill. App. Ct. 1952) (G) (L)

State v. Cameron, 498 A.2d 1217 (N.J. 1985) (G) (L)

Greentree at Murray Hill Condominiums v. Good Shepherd Episcopalian Church, 550 N.Y.S.2d 981 (Sup. Ct. 1989) (G) (A)

Diocese of Central New York v. Schwarzer, 199 N.Y.S.2d 939 (Sup. Ct. 1960) (G) (L)

Heard v. City of Dallas, 456 S.W.2d 440 (Tex. Civ. app. Ct. 1970) (G) (L)

Lutheran:

Miami Beach Lutheran Church of Epiphany v. City of Miami Beach, 82 So.2d 880 (Fla. 1955) (D) (L)

Johnson v. Evangelical Lutheran Church of Messiah, 54 S.E.2d 722 (Ga. Ct. App. 1949) (G) (L)

Bethel Evangelical Lutheran Church v. Village of Morton, 559 N.E.2d 533 (Ill. App. Ct. 1990) (D) (A)

Our Savior's Evangelical Lutheran Church of Naperville v. City of Naperville, 542 N.E.2d 1158 (Ill. App. Ct. 1989) (G) (A)

Schueller v. Board of Adjustment, 95 N.W.2d 731 (Iowa 1959) (G) (L)

Zion Evangelical Lutheran Church v. City of Detroit Lakes, 21 N.W.2d 203 (Minn. 1945) (D) (L)

St. John's Evangelical Lutheran Church v. City of Hoboken, 479 A.2d 935 (N.J. Super. Ct. Law Div. 1983) (G) (L)

Lutheran in America v. City of New York, 316 N.E.2d 305 (N.Y. 1974) (G) (A)

Synod of Ohio of United Lutheran Church v. Joseph, 39 N.E.2d 515 (Ohio 1942) (G) (L)

Methodist:

West Hartford Methodist Church v. Zoning Board of Appeals, 121 A.2d 640 (Conn. 1956) (D) (A)

Keeling v. Board of Zoning Appeals, 69 N.E.2d 613 (Ind. Ct. App. 1946( (G) (L)

Linden Methodist Episcopal Church v. Linden, 173 A. 593 (N.J. 1934) (G) (L)

Cash v. Brookshire Methodist Church, 573 N.E.2d 692 (Ohio Ct. App. 1988) (G) (A)

First United Methodist Church of Seattle v. Hearing Examiner for Seattle Landmarks Preservation Bd., 916 P.2d 374 (Wash. 1996) (G) (L)

Pentecostal:

Pentecostal Holiness Church v. Dunn, 27 So.2d 561 (Ala. 1946 ) (G) (L)

Presbyterian:

Western Presbyterian Church. v. Board of Zoning Adjustment, 862 F.Supp 538 (D.D.C. 1994) (G) (A)

Synod of Chesapeake, Inc. v. City of Newark, 254 A.2d 611 (Del. Ch. 1969) (G) (A)

City of Richmond Heights v. Richmond Heights Presbyterian Church 764 S.W.2d 647 (Mo. 1989) (G) (A)

First Westminister Presbyterian Church v. City Council, 393 N.Y.S.2d 180 (App. Div. 1977) (G) (L)

Westminister Presbyterian Church v. Edgecomb, 189 N.W. 671 (1922) (G) (L)

Minority Denominations:

Assemblies of God:

First Assembly of God v. Collier County, 20 F.3d 419 (11^th Cir. 1994) (D) (A)

First Assembly of God v. City of Alexandria, 739 F.2d 942 (4^th Cir. 1984) (D) (A)

First Assembly of God v. Collier County, 775 F.Supp. 383 (M.D. Fla. 1991) (D) (A)

Lakeshore Assembly of God Church v. Village Board of Village of Westfield, 508 N.Y.S.2d 819 (App. Div. 1986) (D) (A)

Buddhist:

Moore v. Trippe, 743 F.Supp 201 (S.D.N.Y. 1990) (G) (A)

Christian Science:

Bright Horizon House, Inc. v. Zoning Bd. of Appeals, 469 N.Y.S.2d 851 (Sup. Ct. 1983) (D) (L)

Mahart v. First Church of Christ Scientist, 142 N.E.2d 678 (Ohio Ct. App. 1955) (G) (A)

Church of Christ:

Church of Christ v. Metropolitan Bd. of Zoning Appeals, 371 N.E.2d 1331 (Ind. Ct. App. 1978) (G) (A)

Church of God:

Church of God v. City of Monroe, 404 F. Supp. 175 (M.D. La. 1975) (G) (A)

Jernigan v. Smith, 126 S.E.2d 678 (Ga. 1962) (D) (L)

City of Sherman v. Simms, 183 S.W.2d 415 (Tex. 1944) (D) (L)

State ex rel. Howell v. Meador, 154 S.E. 876 (W. Va. 1930) (G) (L)

The Church of Jesus Christ of Latter-day Saints:

The Church of Jesus Christ of Latter-day Saints v. Jefferson County, 741 F. Supp 1522 (N.D. Ala 1990) (G) (L)

Corporation of the Presiding Bishop v. City of Porterville, 203 P.2d 823 (Cal. Dist. Ct. App. 1949) (D) (L)

Corporation of the Presiding Bishop v. Ashton, 448 P.2d 185 (Idaho 1968) (G) (A)

City of Las Cruces v. Huerta, 692 P.2d 1331 (N.M. Ct. App. 1984) (D) (L)

Eastern Orthodox:

Macedonian Orthodox Church v. Planning Bd., 636 A.2d 96 (N.J. Super. Ct. App. Div. 1994) (D) (L)

Appeal of Russian Orthodox Church of Holy Ghost, 152 A.2d 489 (Pa. 1959) (D) (A)

Evangelical:

State ex rel. Covenant Harbor Bible Camp v. Steinke, 96 N.W.2d 356 (Wis. 1959) (G) (L)

Cornerstone Bible Church v. City of Hastings, 740 F. Supp 654 (D. Minn. 1990) (D) (L)

Hare Krishna:

Marsland v. International Soc'y for Krishna Consciousness, 657 P.2d 1035 (Haw. 1983) (D) (L)

Islam:

Islamic Center v. City of Starkville, 840 F.2d 293 (5^th Cir. 1988) (G) (L)

Islamic Soc'y v. Foley, 464 N.Y.S.2d 844 (App. Div. 1983) (G) (L)

Jehovah's Witnesses:

Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 (6^th Cir. 1983) (D) (L)

Galfas v. City of Atlanta, 193 F.2d 931 (5^th Cir. 1952) (D) (L)

Jehovah's Witnesses Assembly Halls v. Jersey City, 597 F. Supp 972 (D.N.J. 1984) (G) (L)

Matthews v. Board of Supervisors, 21 Cal Rptr. 914 (Dist. Ct. App. 1962) (D) (L)

Garden Grove Congregation of Jehovah's Witnesses v. Garden Grove, 1 Cal. Rptr. 65 (Dist. Ct. App. 1959) (D) (L)

Redwood City Co. of Jehovah's Witnesses v. City of Menlo Park, 335 P.2d 195 (Cal. Dist. Ct. App. 1959) (G) (L)

Minney v. City of Azusa, 330 P.2d 255 (Cal. Dist. Ct. App. 1958) (D) (L)

State ex rel. Tampa Co. of Jehovah's Witnesses v. City of Tampa, 48 So. 2d 78 (Fla. 1950) (G) (L)

Rogers v. Mayor of Atlanta, 137 S.E.2d 668, 672 (Ga. Ct. App. 1964) (G) (L)

Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Board of Appeals, 182 N.E.2d 722

(Ill. 1962) (G) (L)

Board of Zoning Appeals v. Decatur Co. Jehovah's Witnesses, 117 N.E.2d 115 (Ind. 1954) (D) (A)

Minnetonka Congregation of Jehovah's Witnesses, Inc. v. Svee, 226 N.W.2d 306 (Minn. 1975) (G) (L)

Allendale Congregation of Jehovah's Witnesses v. Grosman, 152 A.2d 569 (N.J. 1959) (D) (L)

Jehovah's Witnesses Assembly Hall of S. New Jersey v. Woolwich Township, 532 A.2d 276 (N.J. Super. Ct. Law Div. 1987) (G) (L)

State ex rel. Wiegel v. Randall, 116 N.E.2d 300 (Ohio 1953) (G) (L)

Libis v. Board of Zoning Appeals, 292 N.E.2d 642 (Ohio Ct. App. 1972) (G) (L)

Milwaukie Co. of Jehovah's Witnesses v. Mullen, 330 P.2d 5 (Or. 1958) (D) (L)

Appeal of Trustees of the Congregation of Jehovah's Witnesses, 130 A.2d 240 (Pa. Super. Ct. 1957) (D) (L)

Congregation Comm. N. Fort Worth Congregation, Jehovah's Witnesses v. City Council, 287 S.W.2d 700 (Tex. Civ. App. Ct. 1956) (G) (L)

State ex rel. Wenatchee Congregation of Jehovah's Witnesses v. City of Wenatchee, 312 P.2d 195 (Wash. 1957) (G) (L)

Judaism:

Grosz v. City of Miami Beach, 721 F.2d 729 (11^th Cir. 1983) (D) (L)

Village of Univ. Heights v. Cleveland Jewish Orphan's Home, 20 F.2d 743 (6^th Cir. 1927) (G) (L)

Lucas Valley Homeowners Ass'n v. County of Marin, 284 Cal. Rptr. 427 (Ct. App. 1991) (G) (L)

Stoddard v. Edelman, 84 Cal. Rptr. 443 (Ct. App. 1970) (G) (L)

Beit Havurah v. Zoning Board of Appeals, 418 A.2d 82 (Conn. 1979) (G) (A)

Garbaty v. Norwalk Jewish Ctr., Inc., 171 A.2d 197 (Conn. 1961) (G) (L)

Lubavitch Chabad House v. City of Evanston, 445 N.E.2d 343 (Ill. App. Ct. 1982) (G) (L)

Wolbach v. Zoning Bd. of Appeals, 226 N.E.2d 679 (Ill. App. Ct. 1967) (G) (L)

Schwartz v. Congregation Powolei Zeduck, 131 N.E.2d 785 (Ill. App. Ct. 1956) (G) (L)

Congregation David Ben Nuchim v. City of Oak Park, 199 N.W.2d 557 (Mich. Ct. App. 1972) (G) (L)

Congregation Temple Israel v. City of Creve Coeur, 320 S.W.2d 451 (Mo. 1959) (G) (L)

Kali Bari Temple v. Board of Adjustment, 638 A.2d 839 (N.J. Super. Ct. App. Div. 1994) (G) (L)

Lakewood Residents Ass'n v. Congregation Zichron Schneur, 570 A.2d 1032 (N.J. Super. Ct. Law Div. 1989) (G) (L)

Farhi v. Commissioners of Borough of Deal, 499 A.2d 559 (N.J. Super. Ct. Law Div. 1985) (G) (L)

Sexton v. Bates, 85 A.2d 833 (N.J. Super. Ct. Law Div. 1951), aff'd sub nom., Sexton v. Essex County Ritualarium, 91 A.2d 162 (N.J. Super. Ct. App. Div. 1952) (D) (L)

Jewish Reconstructionalist Synagogue v. Village of Roslyn Harbor, 342 N.E.2d 534 (N.Y. 1975) (G) (L)

Westchester Reform Temple v. Brown, 239 N.E.2d 891 (N.Y. 1968) (G) (A)

Community Synagogue v. Bates, 136 N.E.2d 488 (N.Y. 1956)(G) (L)

Slevin v. Long Island Jewish Medical Ctr., 314 N.Y.S.2d 937 (Sup. Ct. 1971) (G) (A)

Westbury Hebrew Congregation, Inc. v. Downer, 59 Misc. 2d 387 (N.Y. Sup. Ct. 1969) (G) (A)

Westchester Reform Temple v. Griffin, 276 N.Y.W.2d 737 (Sup. Ct. 1966 (D) (A)

Application of Garden City Jewish Center, 155 N.Y.S.2d 523 (Sup. Ct. 1956 (G) (L)

Harrison Orothodox Minyan, Inc. v. Town Board, 552 N.Y.S.2d 434 (App. Div 1990) (G) (L)

Yeshiva and Mesivta Toras Chaim v. Rose, 523 N.Y.S.2d 907 (App. Div. 1989) (D) (L)

Siegert v. Luney, 491 N.Y.S.2d 15 (App. Div. 1985) (G) (A)

North Shore Hebrew Academy v. Wegman, 481 N.Y.S.2d 142 (App. Div. 1984) (G) (A)

Congregation Gates of Prayer v. Board of Appeals, 368 N.Y.S.2d 232 (App. Div. 1975) (D) (L)

Seaford Jewish Ctr., Inc. v. Board of Zoning Appeals, 368 N.Y.S.2d 40 (App. Div. 1975) (G) (L)

Ginsberg v. Yeshiva of Far Rockaway, 358 N.Y.S.2d 477 (App. Div. 1974) (D) (A)

Shaffer v. Temple Beth Emeth, 190 N.Y.S. 841 (App. Div. 1921) (G) (A)

Young Israel Org. V. Dworkin, 133 N.E.2d 174 (Ohio Ct. App. 1956) (G) (L)

Overbrook Farms Club v. Zoning Board, 40 A.2d 423 (Pa. 1945) (G) (A)

Appeal of Floersheim, 34 A.2d 62 (Pa. 1943) (G) (A)

Minyan v. Cheltenham Township, 552 A.2d 772 (Pa. Commw. Ct. 1989) (G) (L)

Berlant v. Zoning Hearing Board, 279 A.2d 400 (Pa. Commw. Ct. 1971) (G) (L)

State ex rel. B'Nai B'rith Foundation v. Walworth Co. Bd. of Adjustment, 208 N.W.2d 113 (Wis. 1973) (G) (L)

Quakers:

Milharcic v. Metropolitan Bd. of Zoning Appeals, 489 N.E.2d 634 (Ind. Ct. App. 1986) (G) (L)

Seventh Day Adventists:

Application of Faith for Today, Inc., 204 N.Y.S.2d 751 (App. Div. 1960) (G) (L)

Unification Church:

New Educ. Dev. Sys. Inc. v. Boitano, 573 F. Supp. 594 (N.D. Cal. 1983) (G) (L)

Holy Spirit Ass'n v. Town of New Castle, 480 F. Supp. 1212 (S.D.N.Y. 1979) (D) (L)

Holy Spirit Ass'n for Unification of World Christianity v. Brush, 469 N.Y.S.2d (App. Div. 1983)

(G) (A)

Unitarian:

North Shore Unitarian Soc'y v. Village of Plandome, 109 N.Y.S.2d 803 (Sup. Ct. 1951) (G) (L)

Unitarian Universalist Church v. Shorten, 314 N.Y.S.2d 66 (Sup. Ct. 1970) (G) (A)

Unclassified:

Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8^th Cir. 1991) (G) (L)

Christian Gospel Church, Inc. v. City & County of San Francisco, 896 F.2d 1221 (9^th cir. 1990) (D) (L)

Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995) (D)

(A)

Alpine Christian Fellowship v. County Comm'rs, 870 F. Supp. 991 (D. Colo. 1994) (Alpine Christian Fellowhip) (G) (A)

Nichols v. Planning & Zoning Comm'n, 667 F. Supp. 72 (D. Conn. 1987) (G) (L)

Love Church v. City of Evanston, 671 F. Supp. 508 (N.D. Ill. 1987) (D) (L)

Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982) (D) (A)

City of Colorado Springs v. Blanche, 761 P.2d 212 (Colo. 1988) (D) (L)

Grace Community Church v. Town of Bethel, 622 A.2d 591 (Conn. App. Ct. 1993) (G) (L)

Grace Community Church v. Planning Comm'n, 615 A.2d 1092 (Conn. Super. Ct. 1992) (G) (L)

Town v. Reno, 377 So. 2d 648 (Fla. 1979) (Ethiopian Zion Coptic Church) (D) (L)

Pylant v. Orange County, 328 So. 2d 199 (Fla. 1976) (First Apostolic) (D) (L)

State v. Maxwell, 617 P.2d 816 (Haw. 1980) (Hula Hau) (D) (A)

Hope Deliverance Ctr., Inc. v. Zoning Bd. of Appeals, 452 N.E.2d 630 (Ill. App. Ct. 1983) (Non-

denominational) (G) (L)

South Side Move of God Church v. Zoning Bd. of Appeals, 365 N.E.2d 118 (Ill. App. Ct. 1977) (D) (A)

Twin-City Bible Church v. Zoning Board of Appeals, 365 N.E.2d 1381 (Ill. App. Ct. 1977) (G) (A)

Coston Chapel A.M.E. Church v. Chaddick, 292 N.E.2d 215 (Ill. App. Ct. 1972) (D) (L)

Family Christian Fellowship v. County of Winnebago, 503 N.E.2d 367 (Ill. App. Ct. 1986) (G) (L)

Board of Zoning Appeals v. New Testament Bible Church, 411 N.E.2d 681 (Ind. Ct. App. 1980) (G) (A)

Portage Township v. Full Salvation Union, 29 N.W.2d 297 (Mich. 1947) (D) (A)

Yanow v. Seven Oaks Park, A. 2d 482 (N.J. 1963) (Eastern Christian Institute) (D) (L)

Covenant Community Church, Inc. v. Gates Zoning Bd. of Appeals, 444 N.Y.S.2d 415 (Sup. Ct 1981) (G) (L)

Duallo Realty Corp. v. Silver, 224 N.Y.S. 2d 55 (Sup. Ct. 1965) (Temple Emanuel) (G) (A)

Holy Sepulchre Cemetary v. City of Greece, 191 Misc. 241 (N.Y. Sup. Ct. 1947) (D) (L)

Neddermeyer v. Town of Ontario Planning Bd., 548 N.Y.S. 2d 951 (App. Div. 1989) (The Healing Church) (G) (L)

Unification of World Christianity v. Rosenfeld, 458 N.Y.S. 2d 920 (App. Div. 1983) (Holy Spirit Ass'n) (D) (L)

Independent Church Realization of Word of God, Inc. v. Board of Zoning Appeals, 437 N.Y.S. 2d 443 (App. Div. 1981) (D) (L)

State ex rel. Anshe Chesed Congregation v. Bruggemeir, 115 N.E. 2d 65 (Ohio Ct. App. 1953) (Anshe Chesed Congregation) (G) (L)

Damascus Community Church v. Clackamus County, 610 P. 2d 273 (Or. Ct. App. 1980) (D) (A)

Christian Retreat Ctr. v. Board of County Comm'rs, 560 P. 2d 1100 (Or. Ct. App. 1977) (D) (A)

Church of Savior v. Zoning Hearing Bd., 568 A.2d 1336 (Pa. Commw. Ct. 1989) (G) (L)

Conversion Center, Inc. v. Zoning Board of Adjustment, 278 A.2d 369 (Pa. Commw. Ct. 1971) (G) (L)

City of Rapid City v. Kahler, 334 N.W.2d 510 (S.D. 1983) (Conerston Rescue Mission) (G) (L)

Fountain Gate Ministries, Inc. v. City of Plano, 654 S.W.2d 841 (Tex. Ct. App. 1983) (D) (A)

First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (G) (L)

Judiciary Homepage

G:\CONST\SHARON\1998\march26\keetch.wpd

1. The Williamsburg Charter was drafted by representatives of many of America's faiths and signed in 1988 by nearly 200 philosophically and religiously diverse national leaders of religion, politics, law, academia, business, and labor. Signers included former Presidents Carter and Ford, Chief Justices Rehnquist and Burger, and many others from across the political spectrum. See The Williamsburg Charter (1988), reprinted in 8 J.L. & Religion 1 (1990).

2. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 524, 533 (1993).

3. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 610 (1987) (Scalia, J., dissenting); Note, Developments in the Law--Equal Protection, 82 Harv. L. Rev. 1065, 1093 (1969).

4. Cf. United States v. O'Brien , 391 U.S. 367, 384 (1968) (observing that "the stakes are sufficiently high for us to eschew guesswork" in determining whether government action was unconstitutionally motivated).

5. 494 U.S. 872 (1990).

6. Order, Findings of Fact ¶ 5, p. 2. (Citations are to the Order of the Chancery Court for Davidson County, Tennessee, in The Corporation of the Presiding Bishop of the church of Jesus Christ of Latter-day Saints v. The Board of Commissioners of the city of Forest Hills, Nos. 95-1135, 96-868, 96-1421, issued on January 27, 1998. For the convenience of the Committee a full copy of this judicial order is attached as Exhibit B to this testimony.)

7. Order, Findings of Fact ¶¶ 9-10, p. 3.

8. Order, Findings of Fact ¶ 12, p. 3.

9. Order, Findings of Fact ¶¶ 15-16, p. 4.

10. Order, Findings of Fact ¶ 17, p. 4.

11. Order, Findings of Fact ¶¶ 31-32, p. 6.

12. Order, Findings of Fact ¶ 20, p. 4.

13. Order, Findings of Fact ¶ 21, p. 5.

14. Order, Findings of Fact ¶¶ 9-10, p. 3.

15. Order, Findings of Fact ¶ 40, p. 7.

16. Order, p. 9.

17. Order, pp. 10-11.

18. Religious Freedom Restoration Act of 1991: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d. Sess. at 157 (1992) (statement of Edward Gaffney, Dean and Professor of Law, Valparaiso University School of Law (citing St. Agnes Hosp. v. Riddick, 748 F. Supp. 319 (D. Md. 1990)); ("even on a belief so deeply and widely held as conscientious objection to the performance of an abortion, State officials ignored the [Supreme] Court's suggestion that it is desirable for the political branch to provide free exercise exemptions. And the courts, after Smith, thought it perilous to provide a remedy.").

19. Id. at 149.

20. In Greater New York Health Care Facilities v. Axelrod, 770 F. Supp. 183, 187 (S.D.N.Y. 1991), the district court summarily rejected challenges to health regulations that limited the service of volunteers in nursing homes despite the fact that, for some of the volunteers, the services represented their fulfillment of the Fifth Commandment obligation to honor one's father and mother.

21. Religious Freedom Restoration Act of 1990; Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101^st Cong., 2d Sess. 23 (1990) (statement of Rep. Lamar Smith). Accord Religious Freedom Restoration Act hearings before the Senate Comm. on the Judiciary, 102d Sess. 44 (1992) (statement of Rev. Oliver S. Thomas, Baptist Joint Committee on Public Affairs) ("Since Smith was decided, Governments throughout the U.S. have run roughshod over religious conviction. Churches have been zoned even out of commercial areas. * * * In time, every religion in America will suffer."); Religious Freedom Restoration Act of 1990: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101^st Cong., 2d Sess. 39-40 (1990) (statement of Rev. Robert P. Dugan, Jr., Director, Office of Public Affairs, National Association of Evangelicals) ("Must a Catholic church get permission from a landmarks commission before it can relocate its altar? Can orthodox Jewish basketball players be excluded from interscholastic competition because their religious belief requires them to wear yarmulkes? Are certain evangelical denominations going to be forced to ordain female ministers, or the Catholic church to ordain female priests? * * * Are school children, contrary to their religious beliefs, to be forced to salute the flag?").

22. See Minnesota v. Hershberger, 444 N.W.2d 282 (Minn. 1989), vacated and remanded, 495 U.S. 901 (1990), upheld on state law grounds, 462 N.W.2d 393 (Minn. 1990).

23. See Buhl v. Hannigan, 20 Cal Rptr. 2d 740 (Ct. App. 1993).

24. See also Montgomery v. County of Clinton, 743 F. Supp. 1253 (W.D. Mich. 1990), aff'd, 940 F.2d 661 (6^th Cir. 1991) (compelling autopsy despite contrary, deeply felt, conservative Jewish beliefs).

25. See, e.g., In re Packham, 126 B.R. 603 (Bankr. D. Ut. 1991).

26. See, e.g., Hadnot v. Shaw, 826 P.2d 978, 981 (Okla. 1992); Scott v. Hammock, 870 P.2d 947 (Utah 1994).

27. In the past year alone, local officials have attempted to curtail Church proselyting in such cities as Mundelein, Illinois; Dover, New Jersey; Flemington, New Jersey; Chester, Connecticut; Valencia, California; Media, Pennsylvania; Downers Grove, Illinois; Marin County, California; and Seven Hills, Ohio.

28. Jay M. Zitter, Annotation, What Constitutes Accessory or Incidental Use of Religious or Educational Property Within Zoning Ordinance, 11 A.L.R.4^th 1084 (1992); Jeffrey F. Ghent, Annotation, Definition of Church or Religious Use Within Zoning Ordinances, 62 A.L.R.3d 197 (1967); Annotation, Zoning Regulations as Affecting Churches, 74 A.L.R.2d 377 (1961).

29. A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning ¶ 20 (4^th ed. 1992).