Legal Analysis III

House Church Meetings: A Legal Analysis 2 (Gallagher)

Part II: Legal Analysis
A. Government Power to Regulate Land Use through Zoning
Most modern urban and suburban areas of the United States use zoning ordinances to regulate land use. Typically, heavy industry land use is separated from commercial land use which is separated from residential use. The U.S. Supreme Court recognized the government's police power to regulate land use in Village of Euclid v. Ambler Realty Co.29 In this case, the Court upheld zoning regulations that had a rational relationship to public health, safety, morals, or general welfare as long as they were not clearly arbitrary and unreasonable.30

In Belle Terre v. Borass,31 the Supreme Court upheld the use of zoning laws to exclude more than two non-related persons from living in an area zoned for "single-family dwellings."32 The Court specifically recognized the legitimate government power "to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people."33

While the Supreme Court upheld housing regulations that gave families protection and preference over unrelated groups of people, in Moore v. City of East Cleveland,34 the Court struck down a zoning ordinance that limited extended family members from living in the same house. The court found that the ordinance substantial interfered with the family in violation of the family's substantive due process rights. "The tradition of uncles, aunts, cousins and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition."35 This is an important case because it limits the zoning power of the state when it substantially burdens fundamental rights of individuals. Similarly, in Schad v. Borough of Mount Ephraim,36 the Court held that when zoning laws conflict with other rights, the appropriate constitutional standards must be used to evaluate the zoning ordinance.37 However, where no fundamental rights are involved, the Court will give deference to a legislature's decision as long as it is reasonably related to health, safety, morals or general welfare and is not arbitrary.38

B. Zoning as Applied to Religious Congregations and House Meetings39
The majority of cases involving zoning and religious congregations involve religious institutional facilities or conversion of existing buildings for religious use. When it comes to siting church buildings, courts have generally upheld the right of municipalities to regulate where churches may or may not locate their facilities. The reasoning has been that facility siting has generally not been found to be fundamental to the "tenet of faith" or a "cardinal principle" of religions but rather is a secular activity.40 Courts have generally found that, even apart from the siting of religious buildings, zoning laws can be used to regulate religious activities in existing facilities that were built for non-religious purposes.41 These courts have decided in many cases that zoning ordinances place a minimal burden on the congregations and the ordinances have a reasonable or important governmental interest.42 This analysis has even been used to satisfy the Shebert43 compelling interest test and the Religious Freedom Restoration Act of 1993 (RFRA) requirements.44 Zoning laws have also been used to compel churches to maintain structures that have been designated for historic preservation45 and to prohibit established churches from traditional roles such as feeding the poor46 or providing shelter for the homeless.47 Courts have generally discounted the burden that zoning ordinances have on religious congregations which has allowed most zoning ordinances to stand.

The exceptions tend to be grouped where there appears to be some discrimination towards a particular group48 or an equal protection question.49 With regards to house meetings in residential areas, exceptions are also found for vagueness of the zoning law in some cases.50 However, in other cases, the courts have found the zoning ordinances to be valid and the burden on the house meeting to be minimal.51 This is due to the availability of alternative venues even though they are not in one's own home.52

The issue of religious house meetings conflicting with zoning laws remains unsettled. The U.S. Supreme Court has declined to take any cases with this issue.53 The deciding factor in these cases appears to be the extent to which the house meeting prohibition is shown to substantially burden another constitutional right, such as equal protection, due process, or freedom of speech. Apart from cases of obvious discrimination, the Free Exercise Clause does not seem to provide much protection standing alone.

C. Protection Derived from the Free Exercise Clause54
The Free Exercise and the Establishment Clauses of the First Amendment, also known as the Religion Clauses, were extremely important to the Founders of this country.55 Several states refused to ratify the U.S. Constitution until these and other important rights were guaranteed. However, the Free Exercise Clause is currently interpreted by the U.S. Supreme Court to provide little of the protection originally intended, especially in the aftermath of the Smith56 decision.57 The Court did accept a more broad view of the Free Exercise Clause for a time,58 but Smith59 was a clear return to a narrow view of the Clause.60

A central issue in the development and controversy over the Free Exercise Clause jurisprudence has been whether the Clause incorporates belief alone or to what extent is conduct that is motivated by belief protected. While many recognize the fallacy of trying to divide religiously motivated behavior from belief,61 this division has prevailed such that freedom to believe is considered absolute, but religiously-motivated conduct receives far less protection. The holding in Smith, that government need not grant exceptions for free exercise from "the obligation to comply with a valid and neutral law of general applicability" seems to eliminate any substantial protective content for religiously-motivated behavior from the Free Exercise Clause. The Court in Lukumi Babalu Aye62 held invalid government action that was deliberately motivated to infringe on a targeted group's free exercise rights. However, this provides no protection from the infringement of secularly motivated laws that unintentionally create a substantial burden on one's religiously-motivated conduct.63 Through RFRA, Congress attempted to roll back Smith and legislatively mandate a return to the broader protection of Sherbert. However, the U.S. Supreme Court struck down RFRA in a controversial decision in Borne v. Flores.64

The Smith decision did not completely overturn Sherbert but rather limited it. Smith maintained the Sherbert compelling interest test for situations where another fundamental right was also at stake, so called hybrid rights.65 Despite the importance of the Free Exercise Clause to the founders and ratifiers of the Bill of Rights,66 significant protection is currently provided only in cases of intentional discrimination or where other Constitutional rights are substantially burdened. For protection of house meetings, this means that there must be a showing of other constitutional infringements in order to bootstrap the Free Exercise protection into action.

D. Free Speech
The vast majority of cases that deal with residential religious meetings involve zoning laws that, either explicitly or as applied, require religious congregations to obtain special use permits or excluding religious use within that zoning category.67 A major issue is whether religious speech is being singled out in an ordinance or in the enforcement of an ordinance. If so, this would be a content-based restriction of speech.68 Religious and political speech are considered to be in a Constitutional protected category of speech along with most other types of speech. The U.S. Supreme Court only allows content-based regulation of protected speech if the ordinance passed the strict scrutiny test.69 For example, if a locality permits a resident to have a weekly gathering of 15 visitors to watch a sporting event or have a meeting of friends for any other secular purpose, and then prohibits another resident from holding a religious meeting of a similar number of people, this would be considered a regulation based on the content of one's speech. In Widmar v. Vincent,70 the Supreme Court held that a state university can not prohibit student groups from using its facilities for religious purposes when it allows other student groups to use it facilities for non-religious purposes.71 The Court found that this regulation was based on the content of the expression. The strict scrutiny test that the court applied required that the regulation must be: (1) necessary to serve a compelling state interest and, (2) narrowly drawn to achieve that interest.72 It is extremely difficult to imagine a legitimate compelling government interest that would be served by regulating the content of Constitutional protected speech spoken in the privacy of one's house. For a zoning ordinance not to run afoul by being content-based, it must burden all speech equally and without discrimination. This should be done by focusing on the secondary effects that are associated with the speech rather than with the content of the speech. An example of a content-neutral ordinance directed at some potential problems with house meetings would be to limit the number of guests to a house in a given zoning district (e.g., no more than 30 people in a single townhouse). That type of restriction would only need to have a rational government interest (e.g., to limit excessive noise, traffic). Alternatively, content-neutral ordinances could directly address noise levels or parking arrangements. These types of ordinances would equally burden all residents that desire to have large gatherings regardless of the content of the speech at the meeting.

The U.S. Supreme Court did find that the government may use time, place, and manner restrictions to regulate content-neutral speech under certain circumstances.73 Time, place, and manner regulations provide zoning laws with the ability to regulate permissible activities within various zones even though the activities may have an impact on free speech. This type of permissible regulation is typically the basis for regulating church locations. But in order to be content-neutral, the regulation must be evenly applied to all assembly halls. In Cornerstone Bible Church v. City of Hastings,74 the court found a time, place, and manner restriction could be validly applied to church locations if the city could offer an important rationale regarding the potential reduction of economic activity resulting from a church occupying commercial space that could have been commercially used.75 A valid time, place, and manner restriction must: (1) be narrowly tailored to serve a significant governmental interest, and (2) leave open ample alternative channels for communication of the information.76 This type of regulation may also be used to effectively prohibit groups that want to use a residential dwelling primarily for meeting purposes (i.e., no one actually maintains a residence in the dwelling).77 A valid time, place, and manner restriction can specify that a dwelling within a residentially zoned area must not be used for assembly purposes if it is not occupied primarily as a residence.78 This would be content-neutral because it focuses equally on all specified behavior without regard to the content of what is expressed in such a gathering. This distinction, whether the meeting is held in someone's primary residence verses a dwelling that is converted primarily to serve assembly purposes,79 would seem to provide two categories for cases dealing with religious meetings in areas zoned for residential use.80 These two categories are entitled to receive differing levels of constitutional protections. The use of a house for assembly purposes that is not someone's primary residence can be strictly regulated as a valid time, place, and manner restriction because it is content-neutral. However, the regulation of religious meetings and gatherings at a person's primary residence can only be burdened to the same extent as gatherings for secular purposes (e.g., football parties, Boy Scout patrol meetings, social gatherings, etc.) because of the need to use only content-neutral ordinances.

Therefore, a home-based congregation or other type of assembly that meets in someone's primary residence should receive substantial protection under the Freedom of Expression Clause of the First Amendment81 because any ordinance affecting this activity must be content-neutral. Incidentally, because a content-based ordinance that burdened religious speech would be a violation of the Freedom of Expression Clause, the compelling interest test of the Free Exercise Clause also would be triggered under the hybrid rights theory of Smith. However, this test is essentially the same as the strict scrutiny test that is triggered by the Freedom of Expression Clause. There are still content-neutral ordinances that can substantially limit or curtail a home-based congregation such as noise limits, parking restrictions, and occupancy limits. However, these limits and restrictions have to be worded and applied equally to social gatherings, graduation parties, political meetings and the like.

Grosz case82 which is in the primary residence category. In that case, the Federal appellate court focused its entire analysis on the proper balancing of the Free Exercise Clause tests and did not consider the content-neutral requirements of the Freedom of Expression Clause. In the other primary residence category cases evaluated in this comment, the outcome has been consistent, but for other reasons. In Cameron83 and Nichols,84 the courts never arrived at consideration of the free speech analysis because they found the ordinances void for vagueness. In Leblanc-Sternberg,85 the court focused on the free exercise analysis without considering the free speech analysis.

However, the other category of congregations that seek to locate in a residential area, the non-primary residence category, do not receive significant protection from the Freedom of Expression Clause because content-neutral time, place, and manner restrictions can be used to strictly regulate this activity in residentially zoned areas. Therefore, the distinction as to whether the assembly is gathering in someone's primary residence is very vital to the level of available Constitutional protection.

E. Equal Protection
An analysis of the Equal Protection Clause86 rights for houses meetings somewhat parallels the free speech analysis. The Equal Protection Clause essentially provides "that all persons similarly situated should be treated alike."87 The U.S. Supreme Court has found that an ordinance can distinguish between classifications of people if the distinction has some rational relationship to some legitimate legislative objective.88 In a residential area, the government can show that a legitimate objective is controlling traffic and noise to provide a quiet environment that fosters family life.89 They can also show that prohibiting unrelated group housing is rationally related to this objective.90 Similarly, the case can be made that prohibiting a group that seeks to use a residential dwelling for a group meeting house is similarly rationally related to the legitimate government interest of fostering a quiet neighborhood. However, can a distinction be made between secular gatherings verses religious gatherings at one's primary residency? Both have the potential to create similar traffic, parking, and noise effects on the neighborhood. How could such a distinction, between secular and religious meetings, be rationally related in serving a legitimate government interest? Both gatherings occur with people similarly situated, that is people gathering in a person's primary residence.

In City of Cleburne v. Cleburne Living Center, Inc.,91 the U.S. Supreme Court considered a case involving a requirement for a special permit for a group home for mentally impaired residents. This group home was in an area zoned for boarding houses, apartment buildings, and hospitals. These other uses did not have to obtain special use permits. The Court found that the effects on the neighborhood and other legitimate concerns relevant to a group home for the mentally impaired were essentially the same as if it were a boarding house with non-mentally impaired residents or a hospital.92 They found that there was no legitimate government interest served by distinguishing between mentally impaired and non-mentally impaired persons in the case of this zoning ordinance.93 It can be similarly argued that most residential zoning ordinances do not restrict residents from having social gatherings of a reasonable number of people at reasonable times of day. Therefore, if an ordinance makes a distinction between secular and religious gatherings in a primary residence of similar neighbors, this would be a violation of the Equal Protection Clause under the Cleburne holding. This has a very similar results to the content-neutral analysis supra. So again, the critical distinction for the government's ability to strictly regulate the use of residential dwellings for house meetings is whether the meeting is being held in someone's primary residence. The Equal Protection Clause would also prohibit the government from treating a gathering of people for religious purposes any differently than a secular gathering. This violation would combine with a charge of violation of the Free Exercise Clause and produce a hybrid rights situation. Under Smith, a compelling interest test would then be triggered.94 However, a group seeking to convert a dwelling into a meeting house when it does not serve as a person's primary residence would not receive the same protection. This is because there are legitimate government interests in making distinctions between primary residences and other uses that are not connected to a primary residence.95

F. Due Process - Void for Vagueness
Several religious house meeting cases have turned on the issue of void for vagueness.96 The U.S. Supreme Court has found that a regulation is void for vagueness if it is unclear as to providing notice of what is prohibited or is unclear as to how the regulation is to be applied.97 Courts have found residential zoning prohibitions like "for activities other then [sic] permitted use"98 and "other religious use"99 are void for vagueness because it is unclear what is prohibited. Usually this problem can be avoided with careful drafting. However, because describing general types of religious activities can be difficult to capture specific actions in a few sentences, legislation which targets religious exercise can usually be challenged as being void for vagueness. In addition, drafters may also be trying to avoid the prohibitions against content-based regulation of speech by using general language. Protection for house meetings under this right is limited to requiring drafters to make clear what is prohibited. In the case of properly drafted ordinances that infringe on house meetings, defendants need to resort to more substantial constitutional protections discussed supra.

G. Other Constitutional Protections
The rights under the Freedom of Expression Clause, the Equal Protection Clause, and the Free Exercise Clause provide the most formidable protection for house meetings in a primary residence. However, other Constitutional protections may provide some additional support for house meetings. These include the right to privacy and the freedom of association.

According to the U.S. Supreme Court in Griswold,100 the right to privacy is not provided for in an explicit section of the Constitution, but emanates from several of the Bill of Rights guarantees to create a "penumbra" or zone of privacy. The Court has found that this right of privacy provides some protection to many morally repugnant activities, including possession of contraceptives,101 abortion,102 and possession of Constitutionally unprotected obscene movies in one's house.103 The right to privacy must be implicated when it comes to the government evaluating what type of gathering is occurring in someone's home. Referring to examples of what the right to privacy has been used to protect, Justice Clifford of the New Jersey Supreme Court, in his concurring opinion wrote, "and yet the State, in disregard of the thrust of all these decisions, resorts to Franklin Township's zoning ordinance ... to prohibit private religious observances within the confines of one's own home."104 Therefore, the right of privacy should also provide additional protection for house meetings being conducted within one's own home.

The right to freedom of association similarly is not an expressed right, but has been found to be implied by the explicit rights of speech, press, assembly, and petition. Freedom of association is "a right to join with others to pursue goals independently protected by the First Amendment." 105 The U.S. Supreme Court has found that the rights under freedom of association protect individuals from prosecution or government discrimination for mere membership in a group, even if the group has a stated illegal purpose.106 Some judges emphasis that there is a significance to a house meeting being connected to an organized religion.107 An argument can be made that the issue of whether a house meeting is in relation to an organized religion can not be determinative as to whether the meeting is permissible or not.Therefore, like-minded people gathering in someone's primary residence would also receive some protection from the right to freedom of association.