Panel: Dover Amendment Does Not Violate Separation; Appeal Expected

three-judge panel of the 1st Circuit Court has ruled 2-1 that a Massachusetts zoning statute exempting sectarian groups from many local zoning ordinances does not violate the separation of church and state or aid religion. The decision upholds the so-called Dover Amendment, crafted by the state legislature in 1950 with the explicit aim of prohibiting discrimination against religious organizations seeking to build or expand facilities.

   The statute was challenged in 1998 by a group of residents in Belmont, Mass after local zoning officials granted a permit to allow construction of an enormous Mormon (LDS) Temple in the midst of the residential area. The original proposal called for the structure to be three stories high and occupy 94,000 square feet, topped by six spires, the tallest soaring 156 feet into the sky. The Boston Phoenix newspaper observed, "From any vantage point, the temple would dominate the landscape, dwarfing every surrounding structure."

   Neighbors challenged the zoning board, though, insisting that the project was out of character for their quiet, residential area. The church later agreed to scale back the project, but residents still insisted that the Temple would affect local property values, and disrupt their area with increased noise, traffic and pollution.

   At the heart of the court case, though, was the Dover Amendment.

   "Every zoning ordinance in every Massachusetts city, except Boston and Cambridge, has an automatic exemption for religious purposes and uses," declared Michael Peirce, an attorney representing the neighborhood. He added that by providing sectarian groups with an exemption to otherwise neutral civil statutes, the state was violating the separation of government and religion.

   "We just can't get around the sense that this zoning law is clearly an aid to all religions," Peirce added.

   In May, 1999, a federal judge ruled in favor of the city despite solid arguments against the constitutionality of the Dover Amendment. Another attorney representing the Belmont neighbors told reporters, "If an atheist group wanted to build the same thing the Mormons wanted to, they couldn't do it..."

   In the 1st Circuit decision (BOYAJIAN v. GATZUNIS), Judge Frank M. Coffin opined, "We think the purpose of the Dover Amendment fits easily within the established boundaries of 'benevolent neutrality,' ... in which religious exercise is supported but not promoted." He drew upon TRUSTEES OF TUFTS COLLEGE v. CITY OF MEDFORD (1993), suggesting that the statute was designed "to strike a balance between preventing local discrimination against an educational (or religious) use ... and honoring legitimate municipal concerns that typically find expression in local zoning laws..."

   Coffin also attempted to draw parallels between the Dover Amendment and "laws that, for secular reasons, provide benefits to a variety of (religious) groups." He cited precedents from several cases which exempted sectarian organizations from property taxes, and permitted tax deductions for expenses of religious education (MUELLER v. ALLEN, 1993).

   The dissent came from Chief Judge Juan Torruela who wrote that while he was "largely in agreement with the majority as to the legal standards" of the case, "my application of those standards leads me to a different result than that reached by the majority..." He questioned the claim that the Dover Amendment was designed as an anti-discrimination standard to protect minority religious sects on issues such as land use.

   The legislature, said Torruela, "easily could have enacted a law saying 'No municipality may discriminate against a proposed use of land on the basis of the religious nature of the use or the religious beliefs or affiliation of the user.' " He cited the Amendment, though, which bars any ordinance which "prohibits, regulates or restricts" religious use.

   "The effect of this broader language goes far beyond prohibiting religious intolerance, by exempting religious users from the ordinary zoning process and by granting them a 'free pass' with regard to perhaps the most important issuing in zoning regulation -- location," Torruela warned.

   Other key quotes from the dissent included:

   ¶    "In my view, either the Dover Amendment responds to a purpose substantially broader than merely preventing religious intolerance, or the statute is substantially broader than its purpose. .."

   ¶    "Second, the Dover Amendment does not embody the 'benevolent neutrality' designed by the Supreme Court to be the proper balance between the competing mandates of the Religion Clauses. A 'neutral' statute, in any ordinary sense of the word, would permit (and require) religious uses and religious users to operate on an even playing field with other uses and users, without special hindrances and without special advantages. The Dover Amendment, in contrast, eschews neutrality to place religion in an exalted position, exempt from the ordinary land-use decision making process..."

   ¶    Although the state may generally be free to protect a use or activity solely on the basis that the state likes it, the Establishment Clause prohibits such bare favoritism where the beneficiary is religion..."

   The Massachusetts case has attracted the concerns of First Amendment separationists over the Dover Amendment, and its resemblance to current federal and state proposals like the Religious Liberty Protection Act (RLPA), passed last year by the U.S. House of Representatives and now being mulled in the Senate. RLPA is based on the old Religious Freedom Restoration Act, enacted in 1993 and struck down four years later by the U.S. Supreme Court in BOERNE v. FLORES. The measures requires that government use a "compelling interest/least restrictive means" test when dealing with faith-based groups and practices.

   The federal RLPA has not managed to clear capitol hill despite several cosmetic rewrites and years of pressure from religious groups. Several states have enacted versions of the measure, though, often labeled as "religious protection" or "religious freedom restoration" acts. Sectarian groups have been near-unanimous in backing the measure, but within the past year several key organizations including the American Civil Liberties Union have withdrawn support for RLPA, fearing that it could be used to trump anti-discrimination laws.

   "All of these are example of 'special rights' legislation for religious groups and religion," warned Ellen Johnson, President of American Atheists. "The Dover Amendment, like RFRA and RLPA, exempts religious sects from the neutral, everyday laws which private businesses, individuals and even nonsectarian organizations must obey."

   "This is clearly entitlement legislation for churches and the rest of the religion industry," Johnson added.

   An appeal is expected in the Massachusetts case.

   Joining the Church of Jesus Christ of Latter-day Saints (Mormons) with amici briefs were the American Baptist Churches of Massachusetts, Baptist General Conference, Evangelical Lutheran Church, Seventh-Day Adventists, United Methodist Church, Presbyterian Church, Worldwide Church of God, First Church of Christ, Scientist and several others.

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