A little-known case in the federal Second Circuit Court of Appeals, pitting the New York City Department of Buildings against the Third Church of Christ, Scientist, highlights the working of the Religious Land Use and Institutionalized Persons Act, one of many laws produced by the close working relationship of Senator Orrin Hatch (R-Utah) and the late Senator Edward Kennedy (D-Mass).
A federal district court had granted the church’s motion for a permanent injunction prohibiting the City from restricting the Church’s use of its facility for private, catered events. City building code enforcement, especially in a densely packed city like New York, has wide discretion to limit use of buildings based on neighborhood zoning.
The district court granted the injunction “on the ground that the City allows secular institutions in the Church’s neighborhood to conduct substantially similar events.” One of the main requirements of RLUIPA is that state and local governments may not impose limitations on churches that it does not impose on “similarly situated” secular institutions. Another is that government may not arbitrarily intefere with a prisoner engaging in religious worship or communication.
The church, located at the corner of Park Avenue and 63rd Street in Manhattan, needed a way to finance renovation of its 80-year-old building. Since the small membership couldn’t come up with the money, they contracted with the Rose Group, a private catering business. Rose Group would pay for the capital improvements, and hold private functions in the church building.
The church obtained an accessory-use permit from the city in 2006, but in 2007 some neighbors complained. The Department of Buildings revoked the use permit, finding “the catering establishment is not an accessory use because . . . . it appears to be a principal commercial establishment at the premises.” The church responded that the Beekman co-operative apartment building and the Regency hotel, both in the same neighborhood, operate restaurants and event facilities.
The city could, in the long run, require the church to cease allowing its premises to be used for Rose Group private catered events. However, it would have to show that all similar events by secular institutions in the neighborhood are also prohibited. Churches do not have an unrestricted right to create a nuisance for their neighbors, by creating congestion, or excessive noise. The law does require equal treatment, and that any buren placed in a religious assembly “is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”
RLUIPA was adopted unanimously by congress in 2000, after the Supreme Court struck down the more comprehensive Religious Freedom Restoration Act of 1993. In City of Boerne v. Flores, Justice Kennedy, joined by Chief Justice Rehnquist and justices Stevens, Thomas, Ginsburg, and Scalia, wrote that the power of congress, granted by Section 5 of the Fourteenth Amendment, to enforce the provisions of the amendment “by appropriate legislation” does not give congress the power “to determine what constitutes a constitutional violation.”