Exceptions from sound ordinances for church bells

[Douglas Laycock]

  What noise did the union want to make? 

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         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
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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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