ZONING AGAINST CHRISTIANITY

[Volokh, Eugene]

    I'm not sure I quite understand why there's a controversy here.  A
government entity is trying to exclude a religious group from building a
church precisely because of its religion; that's clearly unconstitutional.

    Sure, there's a "conflict" here between the dominant religion in town
and another religion -- just as there'd be a conflict if a town were run by
a group that believed that the town should be purely Christian, and that any
non-Christian houses of worship must be banned because they "spiritually
pollute" the place.  But doesn't the Free Exercise Clause -- as interpreted
by Lukumi Babalu Aye and Smith, but also as written and as historically
understood -- make quite clear how the conflict must be resolved?

    If that's the legal system "taking sides," so be it:  It should be
taking the side of the government being unable to intentionally target
religious groups for exclusion.  Seems right to me.

    Eugene

-----Original Message-----
From: Robert Justin Lipkin [mailto:RJLipkin at AOL.COM]
Sent: Monday, September 30, 2002 12:26 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: ZONING AGAINST CHRISTIANITY


In a message dated 9/30/2002 2:05:31 PM Eastern Daylight Time,
davideguinn at HOTMAIL.COM writes:




While I might agree that there is an element of inter-religious conflict, I
cannot see how this can be resolved in a way to support the spiritualists.
They are asking the state, through its zoning laws, to advance their
interest in "cosmic harmony."



      Two brief remarks. One can describe this as the spiritualists' asking
the state to "advance" their interest in "cosmic harmony" or alternatively
as the spiritualists asking the state to protect their interest in "cosmic
harmony." Is there a persuasive constitutional argument establishing the
former as the required (or even the better) description. (Is there any type
of argument that can establish the former as the required description?)
Surely from the spiritualists' perspective (assuming good faith) the latter
is the required description. If so, not "zoning against Christianity" might
be viewed as a failure to protect the spiritualists' religious equality
rights. I can well understand someone responding as follows: "Well that's
just too bad, if one thinks that religionists of any sort can rule the
playing field by insisting that their religion requires the absence of other
religions, then one should think again. Without such a prin! ciple--call it
"live and let live," religious equality and freedom is a chimera." I just
don't see how one can deny that this principle disfavors the spiritualists.
That is, we are not treating the spiritualists equally, and perhaps we can't
and shouldn't.

       Second, I am not suggesting that the spiritualists should win. But I
see this as clearly involving (though of course not exclusively)
inter-religious conflict much more clearly than in Lukumi and Kiryas Joel.
Indeed, almost every controversy hypothetically can be turned into an
inter-religious conflict. In my view, the constitutional theory of the
religion clauses should consider the possibility of more systemic religious
conflict. In the United States, we are, I believe, blessed by the existence
generally of 'reasonable' religions. But this should not obscure the fact
that when religious conflict breaks it, there may be no generally persuasive
way for government not to take sides.

Bobby Lipkin
Widener University School of Law
Delaware

Bobby Lipkin
Widener University School of Law
Delaware

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