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You can say this about the American Civil Liberties Union: It doesn’t hold a grudge, at least when it comes to the Rev. Jerry Falwell. The ACLU has offered to file an amicus brief on Falwell’s behalf involving a legal scrap with the state of Virginia. Two days after the Sept. 11 terrorist attacks, Falwell blamed the ACLU, along with “abortionists,” feminists, gays and lesbians for being responsible for the attack. He later apologized for those remarks. CONSTITUTIONAL ISSUES Falwell, pastor of the Thomas Road Baptist Church, charges in the suit that laws passed by the city of Lynchburg, Va., and the state which place restrictions on churches violate the U.S. Constitution’s First and Fourth amendments and the federal Religious Land Use and Institutionalized Persons Act. Under the Virginia Constitution, no church is allowed to incorporate. A state statute limits to $10 million the amount of money church trustees can have and restricts the amount of land that a church can own to 15 acres within a city. The statute permits the church to hold up to 50 acres if a city permits it by ordinance, which Lynchburg did. Another state law requires that the trustees of a church obtain court approval regarding most transactions involving church property. Jerry Falwell Jr., the son of Falwell and the general counsel of the church, who filed the suit on behalf of his father and the church trustees, said the restrictions violate the First Amendment’s Free Exercise, Establishment and Peaceable Assembly clauses. He also argues that the laws violate the Fourteenth Amendment’s Equal Protection clause. Falwell Jr. said in an interview that the restrictions have inconvenienced the church and have cost it money since it was established in 1956. In 1997, he said, he began to consider a challenge to the restrictions and later was encouraged by the passage of the Religious Land Use law in 2000. That act prohibits government entities from imposing land use regulations on churches unless the government has a compelling interest, and the regulation is the least restrictive means to achieve that interest. The church is challenging the restrictions now because it has outgrown its old facilities. It is on 25 acres in the city of Lynchburg but would like a new, bigger building on 60 acres in another area of the city. Falwell v. City of Lynchburg, No. CV-00075 (W.D. Va.). The Virginia ACLU’s executive director, Kent Willis, said that his office anticipates filing an amicus brief with the trial court. He said that the offer to Falwell was propelled neither by his comments or his apology, but based on the ACLU’s commitment to religious freedom cases. “We’re so accustomed to working with individuals and organizations that criticize us that we hardly notice it,” Willis said. The younger Falwell said that the church appreciates the ACLU’s offer of support. “I think there are still plenty of issues that the church would disagree with the ACLU on,” he said, “but we do appreciate their willingness to be consistent and support liberties no matter who is being negatively impacted by a law like that.” The laws apparently represent a quirk particular to Virginia and West Virginia, which were once a single state. The restrictions on churches in Virginia date to the Founding Fathers. Thomas Jefferson and James Madison led the movement against the incorporation of churches out of fear that an officially sanctioned church might become too powerful and restrict Virginians’ religious freedom. So far the skirmishing has been over procedures rather than the constitutional issues. After the younger Falwell filed the complaint, Lynchburg repealed its ordinance authorizing churches to own up to 50 acres of land and has filed a motion claiming the suit against it is moot. State officials have also moved to dismiss. Virginia attorney general Randolph A. Beals said in a brief that the plaintiffs sued the wrong official, suggesting that the proper defendants should be the recorder of deeds and the local circuit court clerk and chief judge.

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