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With one eye on President Bill Clinton’s pen and perhaps the other on courtroom history, Michigan attorney Robert Bunting has wasted little time in filing the first lawsuit under the under the obscure yet instantly controversial Religious Land Use and Institutionalized Persons Act — which a New York constitutional lawyer contends is a third-hand version of an earlier law struck down by the U.S. Supreme Court. Bunting, who represents Shepherd Montessori Center, a private Catholic pre-school and kindergarten in Ann Arbor Township, filed suit in Washtenaw County, Mich., Circuit Court roughly three minutes after President Clinton signed the bill into law in Washington, D.C. The new federal law bars local governments from imposing land-use restrictions that would impede the religious practices of churches or religiously based organizations, unless restrictions are necessary to meet some “compelling” public interest. Bunting contends that the Ann Arbor Township Zoning Board of Appeals improperly denied Shepherd Montessori’s proposal to lease additional space to expand its operations to include children in the primary grades one through three. Passage of the Land Use Act has some legal observers questioning not only its constitutionality, but also whether Congress and President Clinton foresaw the possible negative impact of the law: an incentive for a flood of church-backed litigation against local zoning boards. “Essentially, every time a religion is involved in a local zoning dispute it will become a federal case,” said Ron Barrier, director of Metro Atheists of New York. “We feel religion is a business and an industry — no different then any other — and we find it disturbing that the government would create a law like this.” EARLIER LAW RULED CONSTITUTIONAL Dr. Marci Hamilton, the prevailing lawyer in an earlier constitutional challenge to the new law’s predecessor, offered further criticism. “[The lawsuit] makes it clear that Congress underestimated the potential use of this law by religious institutions,” said Hamilton, director of international property law at Benjamin N. Cardozo School of Law in New York. “I have predicted for years that this type of legislation would be abused by religious entities. The problem is that Congress didn’t hold hearings. … They never heard testimony from community groups, city attorneys, or local governments about the issue.” Hamilton, who holds the Thomas H. Lee chair in public law at Cardozo, contends that the new law is a merely a scaled-back version of the Religious Liberty Protection Act, which in turn was based on the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993. In City of Boerne v. Flores, 512 U.S. 507, Hamilton served as lead plaintiff attorney for the city of Boerne, Texas, in successfully disputing the constitutionality of the RFRA. The high court held the law unconstitutional on the grounds of separation of powers and federalism. Justice John Paul Stevens wrote in the Boerne decision that the act provided sectarian groups a legal weapon that no other group could employ in local zoning disputes. The high court ruled that RFRA created two standards of law, one for the private individuals, businesses, and secular groups — and another for any person or group operating under the mantle of religion. At first glance by critics such as Barrier and Hamilton, it would seem that Congress has likewise created a dual standard in the Religious Land Use and Institutionalized Persons Act of 2000. Plaintiffs in the Shepherd Montessori school, however, argue that a dual standard created by the Ann Arbor zoning officials has placed the undue burden on them. A ‘PLAIN VANILLA’ CASE? Shepherd Montessori filed an application seeking to use additional leased space to expand its religious education program for up to 25 more students. The Rainbow Rascals, a daycare center serving 100 children, had previously occupied the space. Although the Rainbow space was zoned as “office park district,” Bunting noted an allowance in the zoning ordinance for the existence of one non-conforming use. Lawyers for the township suggest that Bunting is wrong in his interpretation of the ordinance detail. According to court records, zoning officials denied Shepherd Montessori’s request on the grounds that the proposed expansion space was zoned for a daycare center, not a primary school. Under Michigan law, these are two different entities. Shepherd Montessori took the matter to the Ann Arbor Charter Township Zoning Board of Appeals, which declined to overrule the initial decision. The appeals board suggested that Shepherd Montessori might request an amendment to the ordinance before the full Township Board. “But why should we have to do that?” Bunting asked. “It could take years. The new law serves as a clear and effective remedy for our case. It’s a long overdue act. I mean, this country either has a Constitution or it doesn’t. Attorneys for the township — Jim Walsh and Sandra L. Sorini, both with the Ann Arbor, Mich., firm of Bodman Longley Dahling — see the matter differently. In effect, they said, a daycare center — and not a primary school — must replace a daycare center. “Shepherd Montessori was denied [its zoning request] because an primary school is not a permitted use of the space under the office park district classification,” Walsh said. “There are separate licenses required under Michigan law for a daycare center and a primary school.” Walsh and Sorini contend that the issue was a simple matter of procedure. They said that Shepherd Montessori, like any other school, was denied its application because it doesn’t fall under the acceptable non-conforming uses of an office park district. Walsh said that the daycare center was allowed because its operators, unlike Shepherd Montessori, went to the Township Board and asked for an amendment to the law. Although Walsh believes the ordinance and the process of trying to amend it are very clear, he was unsurprised by the lawsuit. “I’m not surprised at all, because several months ago we had a very similar case against the township,” Walsh said. “A group wanted to start a bed-and-breakfast of sorts — where people would come by, eat, and pray. The problem was that the desired location was in an agricultural zone. The zoning board of appeals told the applicants that they were in front of the wrong governmental body, and that they should go before the Township Board. In what became the case of Dilura v. Ann Arbor Charter Township, U.S. District Court Judge Friedman agreed with the township, saying the township isn’t regulating prayer, but instead [was regulating] overnight guests in an area [where] zoning doesn’t allow [such use].” Sorini said that a religious group’s choice against following the prescribed processes of government does not constitute discrimination. The law firm with which she and Walsh are associated, she notes, is hardly anti-religious. In the past, Bodman Longley Dahling has represented the Catholic Archdiocese of Detroit and Catholic Social Services. “This is a plain vanilla zoning case,” Walsh maintained. “It’s not about religion, and it’s not about the Land use Act. The township has ordinances, which are to be followed … If some group feels one [ordinance] is unreasonable, the channels exist to amend it.” ‘LEGALESE IT TO DEATH’? Depending on the eventual outcome of the suit, Shepherd Montessori could go the way of Boerne, or serve as a confidence builder for other religious groups claiming the sort of undue burden the new law seeks to correct. “Churches and faith-based schools have faced unreasonable restrictions that make it difficult for them to fulfill their missions,” said Naomi Corera, president of Shepherd Montessori Center. “At a time when families are seeking educational alternatives, we hope that this action [the lawsuit] will allow us not only to meet the needs of our own students, but to take a stand in defense of religious education generally.” Bunting remains steadfast in his interpretation of the law and confident in the merits of his suit. He said he couldn’t see how the defendant township might win. But he said the township employs “a great big law firm, and it likes paying them, so I’m sure they’ll try to legalese the case to death.” TAX DOLLARS OR RELIGIOUS RICHES? What critics of the new law find especially disturbing is how Senator Orrin Hatch, R-Utah, successfully asked for a suspension of rules to permit a quick vote among a minimal number of senators in attendance. The Land Use Act has been heralded by religious groups who complain that cities and towns have tried in the past to use zoning laws to prevent them from building new churches or temples — or from moving into their communities altogether. Alan J. Reinach, president of the Seventh-Day Adventists Church State Council, said he has been a first-hand witness to a growing number of instances where zoning boards have treated religious organizations unfairly. “It’s become typical for local governments to be unreasonable [about and uninterested in] religion’s usage of land,” Reinach said. “We’re running into this much more often, and we feel it’s a part of the overall secularization of public officials who, in matters of land use, don’t see value in usage unless there are dollar signs attached to it. If a local government doesn’t feel it can make money on a property, they would rather push a religion’s request aside and not deal with it.” Reinach acknowledged, however, that churches are sometimes as obdurate as zoning boards, allowing for the sort of abuse the law’s critics have noted. “Just as local governments can be unreasonable and stubborn, so can churches,” Reinach said. “We hope churches don’t use the law to file lawsuits just for the sake of getting their way, and for trying to get around the laws of their local government. The Shepherd Montessori case … seems like the type of case that the law was designed for. We hope the [plaintiffs] fight the constitutionality of its merits all the way to the U.S. Supreme Court — and lose.” Under the new law, a “compelling” government interest must justify land use regulations that hinder the construction of religious buildings. The law does not exempt religious entities from zoning regulations; on the contrary, the new law requires religious groups to prove that the regulations place a “substantial burden” on the exercise of religion. How the courts will decide the meaning of “substantial burden” remains to be seen. THE BIG PICTURE According to a press release from Shepherd Montessori, the new Land Use Act was supported by a bipartisan congressional coalition in response to complaints from “across the nation” that alleged municipal actions had hampered free religious expression and impeded the activities of churches and groups identified with religious denominations. In a statement released by the White House press secretary, President Clinton said, “The Religious Land Use and Institutionalized Persons Act will provide protection for one of our country’s greatest liberties — the exercise of religion — while carefully preserving the civil rights of all Americans. Religious liberty is a constitutional value of the highest order, and the Framers of the Constitution included protection for the free exercise of religion in the very first Amendment. This Act recognizes the importance the free exercise of religion plays in our democratic society.” Hamilton disagreed. She said that a community’s opposition to a church group’s desire — a bigger parking lot, a new building, a spotlight, or a sound system, for example — does not constitute religious discrimination. Instead, she said, the community’s zoning board might simply object to disturbances that the church group might cause other citizens. “Religious institutions often try to say they use their facility once a week for services, and that a bigger parking lot or facility won’t interrupt the community for more than that one day,” Hamilton said. “But the truth is, especially in this day and age, religious institutions use their facilities for much more than weekly services. They have daycare centers — programs of every kind for their members. What in the past was a once-a-week thing has turned into every day.” WHO WILL CHALLENGE THE NEW LAW? Hamilton believes the new law should be challenged in the courts, but she doesn’t see anyone among the current crop of politicians who would likely stand up against a law so popular with religious entities. “In our era, it is politically improper for a governor, mayor, or state attorney general to say [the Land Use Act] is unconstitutional, ” Hamilton said. “ It will take courage for a local official to challenge it and face the accusations of others that he or she is against organized religion.” Barrier agreed. He said a constitutional challenge would probably “take a community to fight the law — as a community.”

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