Religious Freedom in America

With all the sensationalism about the building of a Muslim Community Center in New York, I thought I would take a few moments to reflect on this issue and how it is not just limited to followers of the Muslim faith wishing to establish places of service and worship. The fundamental issue that has many individuals who have come out in support of the Community Center is centered in their concern for Religious Tolerance and freedom, which is guaranteed under the Constitution of the United States.

I have had some firsthand experience with this during my twenty-three year long career as a Zen Buddhist and Abbot of several Zen Centers. About twelve years ago, I was sent a letter by local City Officials informing me that I would be arrested if I continued to run an Illegal Church (Zen Center). I was in final negotiations for purchasing the property for our local group, and would have already done so if our application for 501 (c) 3 had already been approved. Due to my ignorance at that time I was not aware of the way that cities managed zoning issues and in fact really didn’t know what zoning was other than knowing that cities had Retail, Industrial and Residential areas.

What followed was a long and interesting series of city council and planning meetings, long drawn out debates and finally the closing of the Zen Center and a search for a new home. One interesting tidbit of information I discovered is that no cities in the US have areas that are pre-zoned for Religious use. Any time a group or individual wants to establish a Religious center they must apply to the local city planning commission and establish a variance in order to open said center. This is a fairly complex process and involves contacting all nearby land owners of the proposal, posting public notices of the intention, inviting land owners and the general public to open hearings, and ultimately allow the city planning commission employee’s to rule on your ‘variance.’

One point that is often overlooked in these cases is that if the group or individual wants to open a place of Religious Use in a particular location they must have the variance prior to opening their doors for business. Therefore, if you are a small group and wish to open a small group in your local shopping center or a small industrial complex you must first have your variance approved. The approval process usually takes a minimum of three months and these requests can go on for years. The problem with this is that the group must invest in either rent or purchase of the location without knowing whether the local government officials will approve their application. Consequently, large amounts of capital are required up front with no guarantee of success in the end. For small Zen Centers, as well as other small Religious Communities, this can be a huge hindrance to the successful implementation of the center.

I know that there are a huge number of ‘illegal Zen centers’ in the US today. Many of the participants are not aware of the laws governing them, and the group may be established for years and have a large investment in their location. The tenuousness of such a group is that all it takes is one influential neighbor to contact the right people in their local city government to shut down group pending review of the case.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), Pub. L 106-274, 42 U.S.C. § 2000cc-1 et seq. is a United States federal law that prohibits the imposition of burdens on the ability of prisoners to worship as they please, as well as giving churches and other religious institutions a way to avoid burdensome zoning law restrictions on their property use. It was enacted by the United States Congress in 2000 to correct the problems of the Religious Freedom Restoration Act (RFRA) of 1993. The act was passed in both the House of Representatives and the Senate by unanimous consent in voice votes, meaning that no objection was raised to its passage, so no vote was taken.

In religious land use disputes, RLUIPA’s general rule is the most commonly cited and challenged section. It provides:

General rule. No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government can demonstrate that imposition of the burden on that person, assembly or institution is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.

Scope of Application. This subsection applies in any case in which—the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; or the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

42 U.S.C. § 2000cc-5(a).

During these disputes, the correct interpretation of the term “land use regulation” is almost always an issue. The statute defines “land use regulation” as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” 42 U.S.C. § 2000cc-5(5).

The above law was enacted to give the Federal Government the right to challenge local city governments over their decisions to reject Religious Land use. The reality of this is that every day local governments are dictating whether or not to allow religious groups to establish places of worship.

From my standpoint the question about the Muslim Community Center in New York is not limited to that particular site. Just recently, the U.S. Justice Department filed suit against the city of Walnut, alleging it violated federal law when the city rejected a conditional use permit to build a Buddhist house of worship.

The lawsuit filed in U.S. District Court in Los Angeles alleges that until the Chung Tai Zen Center's application was denied in January 2008, Walnut had not turned down any application for a conditional use permit to build, expand or operate a house of worship for almost thirty years.

The complaint further alleges that Walnut treated the Zen Center differently than similarly situated religious and non-religious facilities.

For example, according to the complaint, in August 2008, the city approved a conditional use permit for a Catholic church that, when completed, will be larger than the Zen Center's proposed facility.

The government's complaint seeks a court order declaring that the actions of the city with respect to the Zen Center violated the Religious Land Use and Institutionalized Persons Act of 2000. The law prohibits religious discrimination in land use and zoning decisions.

"Religious freedom is among our most cherished rights, and our nation's laws prohibit cities and towns from discriminating based on religion when they make zoning decisions related to houses of worship,'' said Thomas Perez, assistant attorney general of the Justice Department's civil rights division. "No faith should be singled out for inferior treatment when it seeks to build a house of worship in compliance with local zoning laws,'' he said. The lawsuit also seeks an injunction to prohibit the city from discriminating against the Zen Center and other religious entities and institutions that seek to operate in Walnut.

On Aug. 26, 2008 the City Council of Virginia Beach, VA voted to deny local Buddhist monks their request for a two-year extension to hold Sunday services at their house on West Neck Road. Some neighbors had complained that the services drew too much traffic and was inappropriate for a primarily residential and farming community.

Deputy City Attorney Bill Macali said he has not seen the suit but maintained that the council made its decision based on land-use issues, not religion. "The City Council did not take into account that this was a Buddhist temple," Macali said.

The Religious Land Use and Institutionalized Persons Act prohibits localities from adopting zoning that "imposes a substantial burden" on people's ability to practice their religion unless there is a compelling governmental reason. The law also requires that religious and non-religious institutions are treated the same. [The monks' lawyer] said the council failed to provide a compelling reason to deny the permit.

Few cases better illustrate the arbitrary and even whimsical way in which local zoning boards often cavalierly reject petitions for special use permits than the case of Pine Hill Zendo v. the Town of Bedford, New York.

The Pine Hill Zendo is a Rinzai Zen Buddhist center with a resident teacher, and consists of a meditation room in the home of John and Angela Mortensen. The room has been purified by a Buddhist abbot, and for a few hours four days a week, the zendo's eleven members gather at the house for silent meditation, brief liturgies and instruction.

Born and raised in Denmark, John Mortensen became interested in Buddhism while in college in Copenhagen in 1971. After trying unsuccessfully to join a Buddhist monastery in Japan, he came to New York to study at the Dai Bosatsu Zendo monastery in the Catskills.

In 1980 he was ordained a Rinzai Zen Buddhist monk, becoming Denko John Mortensen. While serving at a Buddhist temple in New York City he met Angela (also a Buddhist), and after they were married, the couple settled into her home on Garlen Road, where Pine Hill Zendo is located.

In 1998, Mortensen was certified a Dharma teacher, and he and his wife Angela began searching for a place for him to teach, however, as is the case with most emerging Zen Centers they were unable to find a location they could afford. Angela Mortensen then asked the town planning department what might be required for them to use their home for religious observances, and were told to simply go ahead. Pine Hill Zendo was formed, and for two years religious observances took place in the house without incident.

In the spring of 2001, however, a neighbor complained to the Town Planning Board, and the Mortensens were asked to apply for a special use permit that would allow them to use the home as a "church or other place of worship," although neither of those terms is defined anywhere in the Town zoning ordinance. The Zoning Board of Appeals held a hearing on the application on September 5, 2001, and a group of neighbors appeared in opposition. None claimed that they had been harmed or even inconvenienced by Pine Hill Zendo during the previous two years. One resident even testified that other neighbors told her they had never seen or heard anything, and did not even realize the Zendo existed. Opponents simply speculated that traffic and parking problems might develop.

The ZBA rejected the application for a special use permit, citing "issues related to traffic and on-street parking," although on-street parking is permitted in the area at any time except for overnight hours during the winter months. And, incongruously, the Board cited concern over noise, despite the fact that the Zendo's primary activity is silent meditation.

On November 2, 2001 The Becket Fund for Religious Liberty joined the case. On November 6, 2001, Pine Hill Zendo filed suit against the Bedford ZBA in the Supreme Court for the County of Westchester, New York, seeking reversal of the Board's decision. The complaint charged that the Board used an erroneous standard for determining whether religious activities are entitled to a special use permit. It also alleged that the Town's actions violate RLUIPA and the U.S. and New York Constitutions.

Settlement: On April 8, 2002, the Town of Bedford agreed to a Stipulation of Settlement and Discontinuance in which it agreed: 1) to vacate the decision in which the ZBA denied the special permit; 2) agreed to issue a special permit; 3) specified conditions under which Pine Hill Zendo would be allowed to operate, including a limit of 12 persons gathered for worship and/or meditation at any one time, no more than 5 overnight guests, a limit of 6 one day retreats per year, and "all reasonable efforts" to encourage attendees to avoid on-street parking. The Town also agreed to pay $30,000 in attorney's fees and costs to Pine Hill Zendo.

Not all cases end up in a fair compromise with the Religious group, or are even based upon community opposition, as was the case of the Faith Temple Church vs. Town of Brighton. The Plaintiff in this case was the Faith Temple Church (Faith Temple), which brought an action to stop the defendant, the Town of Brighton (the Town), from condemning its property through their exercise of eminent domain. Faith Temple was a church that had outgrown its needs at its original location. In order to accommodate its larger congregation, it negotiated and eventually purchased a 66-acre parcel of land in January 2004. Unknown to the Church Leaders was that in its Comprehensive Plan for the year of 2000, the Town had included a recommendation that this parcel be acquired by the city at some point in the future. The purpose of the acquisition was to expand an adjacent town-owned park. After an extensive search for a suitable location the church purchased the land in good faith that their application would be approved, however, when the Town received their application they immediately initiated condemnation proceedings in the spring of 2004.

RLUIPA’s application to eminent domain was at issue in this case because Faith Temple argued that the recommendation in the Town’s Comprehensive Plan was essentially a “zoning law.” Further, if the recommendation was a zoning law, then Faith Temple argued that condemnation was "the application of a zoning law" and was a violation of RLUIPA.

The Court held that RLUIPA was inapplicable to this case. The judge found that the connection between zoning and eminent domain in this case was "too attenuated to constitute the application of a zoning law." Therefore, summary judgment was granted in favor of the Town, denying injunctive relief.

There are many more examples of such actions taken against Synagogues, Churches and Mosques trying to establish places of worship in the US. I think the reason some are so concerned about the New York Muslim Community Center stems from the tenuousness of religious freedom in America. The prevailing sentiment in certain parts of this country seems to be that we can believe anything we want, just do not do it near my neighborhood, my home, my…, my…, my……

I hope that this post sheds some light on an often-overlooked aspect of the state of religious freedom in America today.