Ninth Circuit Recognizes Church's Right to Equal Treatment Under the Law

Byron Babione
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Posted: Jul 22, 2011 2:34 PM

In a great victory for religious liberty and equal treatment under the law, the U.S. Court of Appeals for the Ninth Circuit has overturned a federal district court’s ruling which barred Centro Familiar Cristiano Buenos Nuevas Christian Church from occupying and holding worship services in its own building in downtown Yuma, Ariz. The city had rejected the church’s 2007 request for a permit to occupy the property while letting non-religious membership organizations locate in the downtown area without having to obtain a permit.

The city’s actions forced the church to pay for a property it could not use and also to pay rent on another building needed for services and worship. Eventually, the added expense of “thousands of dollars a month” to the church’s budget crushed it financially, and it was forced to give up its downtown building.

The church was initially concerned when the city said it must go through the burdensome process of applying for a “conditional use permit.” Still, the church was confident that the city would grant the permit since the city’s own law stated that the buildings in the downtown district were zoned for membership organizations and businesses to operate public assemblies. Under the city’s law, any membership organization (Kiwanis, Rotary, etc.) or business desiring to accommodate people with a common purpose (in a movie theater, a dance hall, etc.) was free to locate there. But the church soon learned that the city refused this privilege to organizations that were religious in nature.

Adding insult to injury, the city withheld the permit on the grounds that the church would “blight” entertainment in Yuma’s Old Town District. The city believed in essence that the church would lessen the free flow of alchohol in the area and thereby dampen the party atmosphere. City staff also targeted the church for exclusion because it would not generate tax revenue (even though multiple tax-exempt uses already operate in the area).

In addition, the city asserted that the church would not draw patrons to the area. This particular conclusion was obviously shortsighted. It completely ignored the fact that church congregants attending educational and worship events throughout the week would frequent area businesses just like persons gathering for theater events do. Moreover, many of the small offices and residences allowed in the zone would draw far less business and entertainment patronage than a multi-member church assembly.

As noted by the appeals court, the porous nature of the city’s position became obvious when it was learned that the city does not even require permits for prisons, post offices, and apartment buildings that want to locate in the Old Town District. These land uses contribute far less to the city’s stated desire to create an “entertainment” district than a church, which would indeed attract patrons to downtown theaters and restaurants.

The church contacted the Alliance Defense Fund, and we filed a lawsuit on behalf of the church in federal court. The suit alleged that the city had violated the Religious Land Use and Institutionalized Persons Act, which is a federal law that says that churches can’t be treated differently from secular assemblies in a given area.

After a federal judge ruled in favor of the city in January 2009, ADF filed an appeal with the Ninth Circuit, which sided with the church, ruling that “it is hard to see how an express exclusion of ‘religious organizations’ from uses permitted as of right by other ‘membership organizations’ could be other than ‘less than equal terms’ for religious organizations.”

Noted the court:

Many of the uses permitted as of right would have the same practical effect as a church of blighting a potential block of bars and nightclubs. An apartment building taking up the whole block may be developed as of right, and so may a post office or prison. Prisons have bars, but not the kind promoting “entertainment.” Thus the ordinance before us expressly treats religious organizations on a less than equal basis.

The Ninth Circuit’s decision should be heralded because it shows that government officials cannot use broad and contradictory commercial justifications to favor non-religious businesses or membership organizations over religious ones. The city’s actions left this small congregation with a mortgage to pay on a building it couldn’t use for two years while it had to pay for another meeting place in a remote area at the same time. Moreover, it should set an encouraging precedent for other churches that may find themselves in the same predicament.