Religious buildings sometimes are not ideal neighbors, especially in residential districts. Consider a few recent examples.

In New York City, the Fifth Avenue Presbyterian Church has been housing a number of homeless persons every night, in close proximity to private residences; residents alleges that this use of the church violates local zoning laws. In Castle Hills, Texas, the Castle Hills Baptist Church has sought a special use permit to add a parking lot and a fourth story to a church building. The city denied the permit, but the church is fighting the decision in court.

Meanwhile, in Abington, Pennsylvania, a Jewish congregation has purchased 10 acres of land in a residential neighborhood for use not only as a worship center but also as a wedding and bar mitzvah facility; the land had previously been used as a convent and then a monastery. The Township (for which I am an attorney) is challenging the proposed new uses.

These conflicts are fascinating in part because they track the changing nature of the way religious buildings and land are used in our country. There was a time when such buildings were solely "houses of worship," as many local codes still identify them. In other words, congregants met one day each week for religious services, making them ideal residential neighbors. But times have changed.

As the Fifth Avenue Presbyterian Church dispute shows so well, these buildings are now being used far more intensively and frequently than they were when they were solely houses of worship. Now they are also being employed as homeless shelters, soup kitchens, senior or child day care centers, or schools.

These new uses generate a slew of negative secondary effects--traffic, noise, sanitation issues - that neighbors find burdensome, and rationally so. It is one thing to buy one's family home next door to a house of worship, and quite a different matter to buy one next door to a homeless shelter. When the one transforms into the other, it is reasonable for neighbors to be concerned.

The Old System: Church Land Use Was Subject to General Zoning Laws

Under traditional free exercise clause analysis, generally applicable laws such as zoning laws are subject to very low-level review even when they affect religious institutions. (A handful of cases decided during the Warren Court era apply a different analysis, but these decisions did not involve land use).

Accordingly, with no special Constitutional protections to invoke, religious buildings, like all other landowners, have been required to negotiate with the zoning authority to reach an agreement on land use that is good for the church, the neighborhood, and the community. That was a system that took into account neighbors' needs and concerns.

A Federal Statute Tips Land Use Disputes In Religious Institutions' Favor

Nevertheless, religious organizations recently started to chafe under the land use restrictions when those restrictions applied to their expanded agendas for how their buildings could be used. To that end, they lobbied for and received the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).

Unfortunately, whereas negotiations over land use used to include fair consideration of neighbors' concerns, RLUIPA has now slanted those negotiations sharply in favor of religious institutions. The statute is not only unfair, it is also unconstitutional, for several reasons.

First, this federal takeover of local land use control constitutes an obvious violation of the Constitution's federalism. If land use is not an inherently local concern, then virtually nothing is. Second, RLUIPA also constitutes an establishment of religion on the part of Congress, for it systematically favors religious organizations over their secular neighbors.

The Undue Influence of Religious Lobbyists in Passing RLUIPA

When RLUIPA was the subject of Congressional hearings, no land use official or neighbor to a religious building was ever permitted to testify. Violating the rule against the establishment of religion by the federal government, both political parties knelt before the altar of religious lobbyists. They refused to ask the hard questions about RLUIPA, even after repeated requests to testify from groups like the National League of Cities.

As a result, the hearing record relies on anecdotal accounts of discrimination against religious buildings in land use (there are precious few cases). It also fails to make a substantial inquiry into the negative secondary effects religious buildings and other religious institutions can rain down on their residential neighbors.

In effect, the members of Congress ignored every homeowner in the country (a silent majority if there ever were one) in favor of creating a more favorable climate for religious buildings. Helping such uses is one thing, but Congress went further - permitting religious landowners to ignore the obligation of every land user, to be concerned about effects on neighbors.

Claiming Religious Discrimination Where There Is None

When neighbors who are deeply concerned about the effects of a large building with intense use at all times of day voice their fears in public hearings, righteous lawyers point the finger of discrimination at them - as though this were a country of few believers instead of the robustly religious country every study reveals. When neighbors express their legitimate concern that their property value will be negatively affected by the introduction of a large building and parking lot into their neighborhood, they are subjected to charges of being more concerned with "mammon" than mission, as though their property rights must take a backseat to the church's religious agenda.

Striking the Proper Balance Between Institutions' Uses and Neighbors' Interests

Of course, no jurisdiction may constitutionally zone out religious uses, but in this deeply religious society, no jurisdiction is likely to try. Moreover, while discrimination against a particular religious community is clearly prevented by the Constitution, bringing churches under the law that applies to all is not.

Short of the extremely rare example in which true religious discrimination occurs, towns and cities must have the latitude to zone real property in the best interest of all. If that means zoning religious buildings' new intensive uses out of residential districts, the Constitution is not violated - contrary to the federal district court's ruling in the Abington case.

There can be no constitutional right for this new breed of houses of worship to claim locations in the midst residential. At a minimum, local communities should have the power to place restrictions on hours and occupancy to keep the new uses in tempo with the residential neighborhood.

Despite the inflammatory charges of "discrimination" against well-intentioned neighbors and cities, these cases of conflict between religious institutions and their neighbors do not, in fact, involve the free exercise of religion. Rather, they are simply garden-variety land use cases where the landowner who claims a special use exemption happens to be religious.