"If an atheist group wanted to build the same
thing the Mormons wanted to, they couldn't
do it..."

-- Mark White, plaintiffs' attorney

ral arguments are scheduled for today in a Massachusetts case which could determine the fate of a local Mormon temple, and a state law which nullifies many zoning restrictions on property belonging to religious groups.

   Neighbors in the Belmont, Mass. area have been fighting construction of the 69,000-square-feet edifice since plans for the structure were first announced in 1995. Originally, the LDS Church wanted to build a larger temple on a nine-acre hilltop property surrounded by a mostly residential neighborhood. The plan called for a main church building of 94,000-square-feet, three stories high and topped by six spires, including a tower rising 156-feet into the sky.

   Despite the best efforts of opponents, though, construction of the LDS temple has proceeded and the building is now nearly 80% completed. That has not stopped at least two groups of local residents from filing a suit to challenge to the Dover Amendment, a 48-year-old state statute that exempts educational institutions and religious groups from the brunt of most local zoning regulations.

   Attorney Mark White, who represents one group of Belmont citizens, argues that the Amendment clearly violates the First Amendment's establishment clause, by providing a special entitlement to religious organizations.

   "If an atheist group wanted to build the same thing the Mormons wanted to, they couldn't do it," White told Associated Press. "In most towns, the zoning regulations are pretty strict, and in some you can't even park your car on the street. And yet, under Dover, if you are a religious organization you can put up a 70,000-square-foot-building."

   In 1997, over heavy neighborhood opposition, the Belmont Zoning Board of Appeals gave the green light for construction of the temple to begin. LDS officials had agreed to scale back the size of the design, though; a local church official told the Boston Globe newspaper that this was done to "better meet neighbors' concerns." Many residents continued to oppose the project, pointing to increased traffic, noise and other disruptions.

   Plaintiff Charles Counselman, a Belmont resident and astronomer at the Massachusetts Institute of Technology, told reporters that the temple would dominate the neighborhood.

   "The temple building is not only much larger than the houses around it, but it also sits on the highest point in town," Counselman noted. "It towers over the neighborhood. It will be a big attention-getter, which is not what you want in the neighborhood you live in..."

   Counselman added that the Dover Amendment "gives special privileges to religious organizations over nonreligious organizations," something which strikes him and other residents are both unfair and unconstitutional.

   Working closely with Mark White is co-counsel Michael Pierce, who is concentrating on the zoning issues of the case.

   "Developers come to me all the time with a piece of land, or the ability to buy a piece of land," he told the Boston Phoenix newspaper when the case first broke. "And the first question they ask is, 'What am I allowed to do with it?' If you're a religious organization, you really don't have to ask that question."

   Both sides realize that the Massachusetts case is a potential powder-keg in determining how far the First Amendment permits governments to protect the free exercise of religion. Communities throughout the state have often been involved in disputes with local schools, especially those operated by or affiliated with religious institutions. Officials in some communities like Newton and Brookline now feel that the Dover Amendment has given too much power to schools and faith-based groups, ignoring the wishes of those most closely affected. They are watching the case closely.

   So is the Church of Jesus Christ of Latter-day Saints (LDS), the Mormons. The local Mormon Bishop says that this cases "changes from being about whether a Mormon temple should be built in Belmont to a much broader issue that encompasses every other religion, and every other educational institution, in the Commonwealth."

   For the LDS, the legal precedent could affect not only the fate of the Belmont church but other Mormon temples the church hopes to built throughout the country. The Latter-day Saints have plans to construct hundreds of such edifices, with the goal that every member of the church will be within four hours driving time from a temple. Under the Mormon religion, the temples are used for important ceremonial events including baptisms, marriages and the Endowment rite which affirms a member's vow of acceptance of church doctrine.

   Since the Dover Amendment challenge was begun, the LDS has unveiled plans to construct over 100 temples, many of them located in the United States.

   For first amendment activists, the Massachusetts case is a classic example of rights and practices in collision. Dr. Arthur Burney, a constitutional law scholar at Boston College, says that the Belmont flap reflects the tension between free expression and the establishment clause."

   "You can have free exercise, but if you go over a line, then the state is perceived as helping the church."

   The idea that the law is providing churches with a special legal instrument also conjures up a somewhat obscure 1982 U.S. Supreme Court case, LARKIN ET A. v. GRENDEL'S DEN. At issue was a Massachusetts statute which gave schools and churches the power to prevent municipalities from issuing liquor licenses within a 500-foot radius.

   Justices struck down the law, noting that it was "not simply a legislative exercise of zoning power, but delegates to private, nongovernmental entities power to reject certain liquor license applications, a power ordinarily vested in governmental agencies."

   The court added that the special entitlement for churches "can be seen as having a 'primary' and 'principal' effect of advancing religion."

   LARKIN concentrated primarily on the constitutionality of a statue conferring upon churches a veto power over the government's licensing authority. For attorney Michael White and the plaintiffs in the Dover Amendment challenge, this Massachusetts statute has a similar effect -- permitting religious groups to trump the zoning authority of local municipalities.

   Related to the Massachusetts case is the proposed federal statute known as the Religious Liberty Protection Act.

   Based on the old Religious Freedom Restoration Act (RFRA) , this statute would require government to employ a "compelling interest/least restrictive means" test when dealing with faith-based groups or practices.

   RFRA was proposed as a remedy to an earlier Supreme Court decision, EMPLOYMENT DIVISION v. SMITH; in that case, Justices ruled that a civil statute (enforcement of drug laws) was permissible even if it did burden the practices of a particular religious group, so long as the statute was equally applied to all. In SMITH, a member of a Native American spiritual sect argued that the state of Oregon erred in denying him unemployment compensation after he was dismissed from a counseling position for using peyote as part of a ritual.

   The Supreme Court struck down RFRA in the historic 1997 BOERNE v. FLORES decision. The Roman Catholic Church had sought to tear down most of a decades-old church in Boerne, Texas and build a new facility. When the church sought a demolition permit, though, city officials denied the application since the structure fell under the purview of local historic preservation ordinances.

   In a 6-3 ruling, the court's majority voided the Religious Freedom Restoration Act, opining that it constituted an illegal extension of congressional authority. In his opinion in the BOERNE case, Justice John Paul Stevens wrote:

"If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an entanglement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment..."

   Is the Dover Amendment giving private schools and churches a similar "legal weapon" which atheists, private home owners and businesses do not have?

   One factor complicated the Massachusetts case is that both schools and faith-based groups are covered under the law. There have been confrontations regulating the education system, but lately the issue of church expansion and construction has emerged as a problem in many small communities. Mr. White cites towns like Newton, Acton, Cape Cod and Ipswich where neighborhoods have divided over religious building, something he describes as "a common problem."

   Neighbors fighting the Dover Amendment have also had to answer criticism that they are motivated by anti-Mormon sentiment. Indeed, when a smaller meeting house for the LDS was erected in the Belmont area in 1993, a suspicious fire to the structure caused nearly half-a-million dollars in damage.

   Dr. Counselman and others have gone on record denying that they are "anti-religious" or "anti-Mormon."

   "We're just trying to protect our neighborhood."

   Meanwhile, 13 religious groups -- including those supporting the federal RLPA -- have joined together to file three amicus ("friend of the court") briefs to defend their special privileges granted under the Dover Amendment. The briefs argue that the Amendment is a necessary protection against religious discrimination that prevents local towns from interfering with the free exercise of religion.

   An attorney for the American Jewish Congress (which usually supports a strict interpretation of the establishment clause) said that the Dover Amendment case "really addresses some important church-state relations, especially the idea that municipalities shouldn't be involved in the kind of religious decisions as to what form a religious structure should take."

   One brief filed by a coalition of Baptist, Evangelical, Christian Scientist, Seventh-day Adventists, Methodist, Presbyterian and other churches opines that the statue "is entirely consistent with America's deep tradition of respect for the free exercise of religion."

   After today's oral arguments, no decision by the three-judge panel of the 1st Circuit Court of Appeals is expected immediately. A second related case involving the Mormon Temple's steeple, has get to get a court date.

    The temple is expected to open sometime this summer.

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