Exceptions from sound ordinances for church bells

[Volokh, Eugene]

	A Houston ordinance imposes various restrictions on the use of sound equipment, but excepts (among other things) "church bells or church chimes when used as part of a religious observance or service during daytime hours, provided the sound did not cumulatively exceed five minutes duration in any one hour period."  The Service Employees Int'l Union challenged this on First Amendment grounds.  Here's the district court's response in SEIU v. City of Houston, 2008 WL 901479 (S.D. Tex. 2008):

	"Subsection (j) exempts church bells and chimes used as part of a religious observance or service during the day. Although the exemption on its face applies only to religious bells and chimes, the plain language of the exemption supports the argument that it is content-neutral, based on the duration, character, and volume of the sound. The exemption limits the sound to five minutes out of every hour during daytime hours. This limitation demonstrates the understanding that church bells and chimes are of limited duration and therefore are "non-intrusive ... acceptable background noise." Stokes v. City of Madison, 930 F.2d 1163, 1170 (7th Cir.1991). The Seventh Circuit examined a similar ordinance in Stokes, exempting "churches broadcasting or reproducing music by sound reproducing devices on Sundays or religious holidays." Id. at 1166. The Stokes court found the exemption to be content-neutral holding that '[w]here the perceived harm from speech is its intrusiveness (to some extent proxied by volume) and not its content, the relevant inquiry is not who broadcasts but what the decibel level and the sheer consciousness-piercing quality of the sound may be. The Council's decision is, in effect, a determination of intrusiveness based on the character of sound. Church bells on Sunday morning, for example, are a traditional and generally unobtrusive aspect of a tranquil environment.' Id. at 1171. Here, the noises that the statute purports to address are described as "loud, unnecessary or unusual noise that annoys, disturbs, injures, or endangers the comfort, repose, health, peace, or safety of others." § 30-2(a). Like the exception to the ordinance in Stokes, the church bells or chimes exemption here is based solely on the intrusiveness of the sound and is likewise content-neutral. Therefore, the exemptions to the Sound Ordinance do not render it content-based and subject to strict scrutiny.

	"[Footnote:] However, the court notes that even if the ordinance were content based, it would be a narrowly drawn regulation necessary to serve a compelling government interest. Perry, 460 U.S. at 45. The exemption allowing church bells and chimes used as part of a religious service or observance is a legitimate accommodation to religious belief under the Free Exercise clause of the First Amendment. See Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

	"Additionally, although the ordinance is an exception rather than an affirmative statute or ordinance, the court finds that it would not be an impermissible establishment of religion under the Establishment clause of the First Amendment. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2501 (1971). As the Seventh Circuit noted in Stokes, church bells are a common part of the background noise of a city. Stokes v. City of Madison, 930 F.2d 1163, 1170 (7th Cir.1991). The church bells have "become part of the fabric of our society [and] not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country." Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding the Nebraska Legislature's "practice of opening legislative sessions with prayer")."

	Is the court right?

	Eugene