Strike up another victory for religious groups and their efforts to obtain "special rights."

three-judge panel of the 4th U.S. Circuit Court of Appeals last week voted 2-1 to reversed a lower ruling, and uphold a Maryland ordinance which permits religious schools to build on their land without obtaining special permits. Unlike private homeowners or businesses, a religious group may construct a church-affiliated school on property which it owns or leases without the cumbersome permitting process.

    A Montgomery County couple, Brigit Ehlers-Renzi and husband Vincent Renzi, challenged the constitutionality of the ordnance in federal court after the Connelly School of the Holy Child announced that it would begin expansion to its facilities without first obtaining the building permit. The couple, who live across the road from the school, argued that the ordinance illegally favored religious landowners.

    Joining with the Connelly School by filing amicus ("friend of the court") briefs were the American Jewish Congress, Episcopal Church, Diocese of Washington, Seventh-day Adventist church, Union of Orthodox Jewish Congregation of America, American Civil Liberties Union and the Beckett Fund for Religious Liberty.

    Last year, U.S. District Judge Frederick Motz agreed with the Renzis, and said that the ordinance had no secular purpose and violate the separation of church and state. Motz pointed to the U.S. Supreme Court decision in LEMON v. KURTZMAN which set forth a definitive "three-pronged" test of First Amendment law. It states that any statute must have a secular purpose, may neither advance nor hinder religion, and must avoid "excessive entanglement" between church and state. Motz noted that the Montgomery County ordinance extended a zoning exemption to private religious schools, and no other persons or groups. Lawyers for the county had disingenuously argued that the ordinance passed constitutional muster because it encouraged "the promotion of education," and even suggested that asking a religious group to apply for a building permit -- a requirement for private homeowners, businesses and even nonsectarian private schools -- would somehow entangle church and state.

    Motz disagreed, noting: "Within the parlance of Establishment Clause jurisprudence, the proposition that a legitimate secular legislative purpose can be the promotion of religious education is an oxymoron. Likewise, by definition, to promote private religious education alone has the primary effect of advancing religion."

    He added that the county's claim was "wholly conjectural," and warned: "If the constitutionality of a statute can be upheld on such a thin reed, legislative bodies dominated by religious groups can run roughshod over the Establishment Clause."

    Two members of the three-judge panel agreed with the ordinance, though, and said that it was simply a way of guaranteeing that religious groups do not have to justify their plans for a school building to the government, especially since the school is to be used in carrying out a sectarian mission.

    U.S. Circuit Judge Paul V. Niemeyer, author of the majority opinion, said that government does not engage in unconstitutional activity "when it exempts religious institutions from land-use regulations. He cited the Supreme Court's 1987 decision in CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS which opined, "an exemption's effect of simply allowing a religious school to better ... advance its purposes doe not" foster entanglement by promoting religion. That case (483 U.S. 327) originated as a complaint involving religious discrimination in violation of Title VII of the Civil Rights Act of 1964; a appellee, employed by a facility operated by the Mormon church, said that he was illegally fired because he failed to prove that he was a member of the LDS. The church, in turn, cited a shield from liability under a section of the Civil Rights act which exempts religious groups from equal employment practices.

    BISHOP v. AMOS did not deal with land use, but incredibly the U.S. Circuit Court found support for its claim that government may give preferential treatment to religious groups without, somehow, violating the separation of church and state. Worse yet, the two judge majority dismissed the "excessive entanglement" part of the LEMON v. WEISMAN test by suggested that the discriminatory ordinance actually had a "disentangling effect" by "avoiding government intrusion into matters of religious education."

    Other double-talk in the majority opinion suggested that the ordinance "does not exempt landowners but rather school uses," and that even an inquiry into the operation of the school "would risk the same religious entanglement."

   The one voice of dissent in the Renzi case was from Judge Francis D. Murnaghan, Jr., who said that requiring religious schools to obtain construction permits "would not significantly interfere with the school's ability to define and carry out its mission." He cited the case of FOREST HILLS EARLY LEARNING CENTER v. GRACE BAPTIST CHURCH, and noted: "There is an important difference between regulations that reach into an organization's program and personnel, on the one hand, and those that only impact the development of its physical facilities, on the other. What goes on within the walls of the church buildings is of far greater significance than the configuration of those buildings..."

    The Maryland decision comes just weeks after passage of the federal Religious Land Use and Institutionalized Persons Act of 2000, a scaled down version of the old Religious Liberty Protection Act. RLUIPA further extends the "special rights' enjoyed by sectarian groups when it comes to avoiding local zoning and land use statutes, as well as environmental regulations. RLUIPA requires that government employ a "compelling interest/least restrictive means" test when dealing with faith-based groups and practices.

    In May, a three-judge panel of the First Circuit Court upheld a state statute, the Dover Amendment, which is similar to the Maryland ordinance. That case involved the construction of an enormous Mormon (LDS) Temple in the middle of a private residential neighborhood in Belmont, Mass. The Dover Amendment was crafted by the state legislature in 1950, and exempted any religious group from the bulk of local zoning and land use regulations -- presumably as a way of prohibiting discrimination.

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