Exceptions from sound ordinances for church bells

[Volokh, Eugene]

	I appreciate Marty's point, and I agree that if this is a content-based restriction, it should be unconstitutional under the Free Speech Clause, the Establishment Clause, or both.

	But here's the tougher question, it seems to me:  I do suspect that church-bell noise is less likely to annoy or disturb others.  This is partly because it's more objectively mellifluous (if such a thing can be objective, and I suppose it can be, in some measure), partly because it's more familiar, and partly because it has a more peaceful cultural symbolism -- even to me, a non-Christian, it conveys a connotation of calm high culture rather than ideological advocacy or even religiously enthusiastic proselytizing.  Likewise, for instance, I take it that the cry of the muezzin would be less likely to annoy or disturb people who associate it with (say) a threatening and aggressively sexist religious movement than people who associate it with something exotic and intriguing, or certainly with something sacred and beautiful.  So how do we decide whether the difference in likely annoyance or disturbance is content-neutral or content-based?

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> marty.lederman at comcast.net
> Sent: Monday, April 07, 2008 12:46 PM
> To: Law & Religion issues for Law Academics; 
> religionlaw at lists.ucla.edu
> Subject: Re: Exceptions from sound ordinances for church bells
> 
> "SEIU planned a strike to be accompanied by demonstration, 
> rallies and a parade downtown and in other business areas. 
> Pursuant to those plans, SEIU applied for sound amplification 
> permits under § 30-8 of the City of Houston Sound Ordinance, 
> and for parade permits under §§ 45-231 through 45-246 of the 
> Parade Ordinance. Additionally, members of SEIU were 
> prevented from using bullhorns during demonstrations and told 
> they needed a sound permit. One of SEIU's sound permits and 
> both of the parade permits were denied."
> 
> To the extent the court is holding that the "exemption" is 
> not an exemption at all, but instead merely a legislative 
> determination that the church bells do not fall within the 
> terms of the statutory restriction, I suppose it might be ok.
> 
> But to the extent the court is holding, in the alternative, 
> that church-bell noise should be given a preference over 
> union noise even if both "annoy, [or] disturb . . . the 
> comfort, [or] repose . . . of others" to the same extent, 
> then I think the *speech* preference for churches -- which 
> would otherwise be a Free Speech Clause violation -- cannot 
> be constitutionally defended as a religious accommodation. 
> 
> 
>  -------------- Original message ----------------------
> From: Douglas Laycock <laycockd at umich.edu>
> > 
> > 
> >   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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