The Quiet Religious-Freedom Fight That Is Remaking America
By Emma Green, The Atlantic, Nov. 5, 2017
A church outgrows its old building. It finds a vacant warehouse in a middle-class neighborhood, close to the highway and convenient for its congregants. Mortgage money is raised, plans are drawn up, the sale is approved. All that remains is a technicality: securing a zoning-code exemption.
Three years and two lawsuits later, the church is at last in its new building--and out $1.2 million. It holds services in the lobby because it ran out of money to renovate the room that was to be the sanctuary.
This problem was supposed to be solved. Seventeen years ago, Congress unanimously passed a law, the Religious Land Use and Institutionalized Persons Act, to prevent cities and towns from using zoning as a weapon against groups that want space to worship. At the time, everyone cheered a rare moment of legislative success. In practice, though, few congregations have the time, knowledge, money, or energy to pursue the legal process set up by RLUIPA, leaving many in a desperate limbo with no place to pray.
By the time they take on a zoning challenge, many religious groups are already struggling to find and retain members, and to get by on shoestring budgets. Without an adequate place to gather, they miss opportunities to assemble in study, service, and prayer. The stakes are high for towns, too. Churches, synagogues, and mosques influence life well outside their walls: People who belong to religious institutions are more civically engaged than their secular neighbors. They are more likely to serve on school boards, volunteer at charities, and join clubs. In the absence of these institutions, communities can become fractured and isolated. Neighborly infrastructure decays.
Sometimes, these stories have a clear villain: anti-Semitic or Islamophobic townspeople who are plainly intolerant of religious difference. One New Jersey lawyer recounted a hearing on an Orthodox Jewish groupâs zoning application where an objector stood up, turned to the yarmulke-wearing crowd, and said, âHitler should have killed more of you.â
These cases of outright bias get the most attention from the U.S. Department of Justice, which has the power to enforce RLUIPA. In addition to protecting the religious rights of prison inmates, the statute forbids state and local governments from placing a âsubstantial burdenâ on religious organizations that want to purchase, build, or renovate property. But many land-use disputes arenât about explicit bigotry. They arise from concerns about noise, lost property taxes, and Sunday-morning traffic jams. The effect is largely the same, and can be just as devastating as outright hatred: A religious community is dragged into a lengthy, and costly, dispute with a city or town. Religious groups either give up and move somewhere else or prepare for litigation--and the burdens that come with it.
Fights over religious liberty tend to run hot. But the slow burn of bureaucratic tedium has equal power to test the faith of a congregation. Zoning and land-use conflicts consistently rank among the top reasons why religious organizations end up in court, according to the legal newsletter Church and Tax Law. These fights matter, because physical spaces matter: They can determine who makes the drive to morning services and who stays home; who remains in the fold and who grows disconnected from their faith; and whether people of all races, classes, and backgrounds are truly welcomed in, or whether the church doors are just too far away for some people to reach.
South Hackensack, New Jersey, is a small community nestled in Bergen County. Houses here are smaller than those in some of the wealthier enclaves closer to the Hudson River and Manhattan. Latino families socialize with white neighbors. Working-class residents might find themselves in conversation at a gas station or diner with an accountant who commutes to New York.
This range of race and class was one reason North Jersey Vineyard Church was drawn to the township. The charismatic Protestant group prides itself on bringing together a diverse crowd for its music-filled services and small-group Bible studies. Itâs a friendly, low-key community: The pastor, Phil Chorlian, smiles compulsively between sentences and wears jeans when he preaches.
Chorlian is white, but from the time the church first started meeting at a Holiday Inn in 1997, he was focused on building a community for people who donât necessarily look like him. Today, Chorlian estimates the congregation is about 40 percent Latino, 30 percent white, 20 percent Asian, and 10 percent black--and most are middle- or working-class.
As the church grew, it moved to a small warehouse, then rented a 12,000-square-foot office building. By 2012, it had roughly 600 active members. North Jersey Vineyard started raising money and looking for a building of its own.
Members of the church leadership team felt called to stay in the southern part of Bergen County, where they felt it would be easier to maintain their racial diversity than in other parts of the area, and where they saw more need for their charitable works. They wanted to be near a highway, with sufficient parking to accommodate the many members who drive to church. Above all, they wanted space. The congregation had grown so large that it required six services every weekend to accommodate all of its worshippers. Children were on top of one another in the daycare area.
After an extensive search lasting more than a year, the church found a building that met all of its needs: a vacant office at 310 Phillips Avenue, almost three times the size of its old space. It was in a part of town zoned for motels, fast-food restaurants, and outlet stores--but not houses of worship. The seller, a small engineering company, had been trying to find a buyer or tenant for more than a decade, according to court documents. The firmâs owner didnât think getting an exemption would be a problem, according to Chorlian. âWe had been hearing, âOh yeah, itâs going to be a slam dunk.ââ
In April 2014, North Jersey Vineyard submitted an application for a âuse varianceâ to South Hackensackâs Zoning Board of Adjustment. The church paid for a traffic assessment, which found that its activities would ânot result in any significant negative traffic impacts to the surrounding road network,â according to court documents. It submitted planning and engineerâs reports and volunteered to hire a police officer to direct neighborhood traffic on Sundays.
The request was supposed to be heard in May, but the zoning board couldnât get enough of its members to show up, so it cancelled the meeting. A June meeting was called off for the same reason. Finally, at the end of July, the board heard the churchâs case.
Chorlian had prepared carefully. He spoke about Vineyardâs international network of nondenominational churches. He described his congregationâs commitment to service, including the work it had done to restore a nearby trailer park damaged by Hurricane Sandy and its hope to open a food pantry for poor residents of South Hackensack. He expected the hearing would go smoothly.
It did not. âI donât want to be too pejorative, but it was like I could feel the hostility,â Chorlian said. âI could feel, when I got up there, that they just did not want us there.â
The board members seemed scarred by the traumas of driving in northern New Jersey. âWhat I, like, flash back to is ⌠the shopping centers of Paramus opening up on Sunday,â said one member, according to minutes of the meeting. âNobody wants them there--not because of revenue, because of traffic. People donât want to be inconvenienced with the noise and stuff on Sunday.â The board also worried that a shared-parking-lot arrangement with the building next door would fall through, leaving North Jersey Vineyard with insufficient spaces. A county known for its stringent, so-called blue laws--prohibitions against consumer activities taking place on Sundays, passed to protect citizensâ rights to religious worship--was now effectively arguing that religious assembly would be too great an inconvenience for the community. In August 2014, the board unanimously voted to deny the use variance.
North Jersey Vineyard faced a choice. It could try to find another building, perhaps one already zoned for religious use. But by that point, the leadership had scoured the area and knew the churchâs options were limited.
The other option was to sue, a path that carried significant risk. âWe had raised about $1.2 million from the congregation,â said Respass. âCould we go back to the congregation in four years and say, âOh, you know that $1.2 million? We lost it all, and we donât have a building.â You enter into a lawsuit and you know youâre right, but that doesnât mean youâre going to win.â
In the end, the church board voted to pursue the lawsuit. Their odds of winning were high, its members reasoned, and they saw their case as a fight for all religious groups facing zoning challenges. The church hired Daniel Dalton, a Michigan lawyer who specializes in religious land-use cases. Their suit argued that South Hackensack had substantially burdened the churchâs religious exercise and treated houses of worship differently from secular assembly halls, violating RLUIPA and the First and Fourteenth Amendments of the Constitution.
The proceedings took seven months. Eventually, the township agreed to settle. It revised its zoning code and agreed to a new parking arrangement. North Jersey Vineyard finalized its $3 million purchase of the new building in June 2015.
There was one step left. The South Hackensack Township Planning Board, a separate entity, had to approve the churchâs âsite plan.â Yet again, there was a parking dispute: The town planner thought the church needed yet more spaces. The board rejected the site plan in November 2015.
North Jersey Vineyard had now been making mortgage payments on a building it couldnât use for five months. A clutch of North Jersey Vineyard members formed an informal legal cheering squad, faithfully showing up for each hearing. But the leadership was starting to feel burned by the process. âIt looks like a large church, but weâre still a small church with a relatively small budget. We donât have millions of dollars in the bank,â Respass said. âSo youâre watching your bank account go down. Itâs stressful. And you feel wronged.â
After another year of legal proceedings, the town once again agreed to settle. But the churchâs victory was qualified. Although religious institutions can seek damages and fees if they win in RLUIPA cases, North Jersey Vineyard agreed to forego any compensation beyond one $50,000 payment, which covered attorneyâs fees in the second case. This was only a fraction of its total financial burden, which included more than $1 million in mortgage payments, property taxes, expert testimony, and other litigation costs.
North Jersey Vineyard had its building. But the $1.2 million, raised dollar by dollar, was gone. In the sanctuary, a floor plan the church couldnât afford to execute was taped to the wall worshippers would have faced when they prayed.
Since the church opened in its new location, it has seen a big uptick in attendance. But it still hasnât been able to afford renovations.
Many of the groups that wind up at the center of RLUIPA cases have it worse than North Jersey Vineyard. Cases can stretch on for decades, and the majority of religious organizations end up losing: According to Dalton, who wrote a book on RLUIPA, roughly 80 percent of RLUIPA claims filed in federal court fail. âThis is a very hard statute to follow,â he said. âFor the inexperienced, it is easy to lose.â An untold number of religious groups never make it to court at all, either because congregations donât realize they have special protections under the law, donât know how to file a claim, or donât have the resources to pursue a case. Many simply walk away from purchasing a property when they discover that it is not zoned for religious use.
North Jersey Vineyard was also spared the ugly bigotry underlying many zoning disputes. Other than a few awkward comments confusing Catholic and Protestant styles of worship, officials in South Hackensack didnât seem to oppose North Jersey Vineyardâs purchase based on the congregantsâ faith. Often, though, zoning books are wielded by intolerant or ignorant officials; about half of RLUIPA disputes involve religious or ethnic minorities, according to Dalton. As a participant in a Department of Justice listening session recently told government officials, âPeople donât come into hearings now and say, âI hate Muslims.â They say, âThe traffic is going to be terrible on [Fridays,]ââ when Muslims gather for Jumah prayer.
Thereâs no doubt that resistance to religious groups is often grounded in animus. âSome of itâs ethnicity. Some of it, thereâs just outright prejudice,â said Dwight Merriam, a Connecticut attorney who has represented local governments in land-use cases across the country. (His license plate spells out ZONING.) But many disputes arise for more mundane reasons. Towns can have outdated, discriminatory zoning rules on the books and not even realize it. Local officials can be single-mindedly focused on raising revenue from property taxes, which churches and other houses of worship donât pay.
Often, people just donât like the idea of their neighborhood changing--and granting a zoning exception truly can reshape life in a town. Consider Orthodox Jews, another small religious group that frequently faces zoning challenges. With their large families--an average of four children per couple, according to Pew--many Orthodox Jews have been priced out of urban centers like New York City in recent years and have moved, en masse, to surrounding areas. In part because they cannot drive on Shabbat and many holidays, people in these communities tend to coalesce in neighborhoods within walking distance of a synagogue. They might erect an eruv, a perimeter that can be made of wire and posts marking where Jews can carry objects on Shabbat--a near-invisible physical structure that can have profound effects on weekend retail, property values, and the populations of neighborhood schools. Several New Jersey communities, including Jackson, Lakewood, and Jersey City have recently struggled with these physical and demographic changes.
Residents and zoning boards may view faith groups through a narrow lens, worrying about burdens on infrastructure and traffic flow. But religious institutions donât just benefit their members. They can also strengthen a communityâs level of civic engagement. A large body of social science has shown that religious people are more likely to vote, volunteer, and join other groups like PTAs or book clubs than people who arenât religious. In many areas, congregations provide a backbone of social services, like housing for the homeless or coats and meals for the needy. They provide significant immigration and refugee-resettlement services, including English-language instruction.
These may seem like unmitigated goods, but not all communities see things this way. âTheyâre concerned about a bunch of impoverished individuals showing up for food and clothing and shelter in their gentrifying neighborhoods,â Weinstein said. âThey look at themselves in the mirror and say, âThis is not the right place for this.â Itâs, âYes, we need it. But not here.ââ
These days, North Jersey Vineyard holds four services each weekend in its new building on Phillips Avenue. Heavy cloth hangs from piping in the converted lobby, with 350 red and gray chairs neatly lined up behind it. The mixed-race congregants--black, white, Hispanic, Asian--come as they are; some wear T-shirts and sandals, while others look well-ironed in church dresses. By the time the 11 oâclock service rolls around, the make-shift sanctuary is almost full. The vibe of the service is somewhere between buttoned-up evangelical and free-wheeling Pentecostal--a few hands raise in hallelujahs, but otherwise the crowd remains fairly quiet.
After Vineyardâs case finally settled in December 2016, Chorlian had wanted to get into the building as soon as possible. âIt ruined Christmas for all the staff,â he said. âWe were working around the clock to get the curtain set up.â A lot of the renovations have been DIY, and staff are always scouring Amazon for cheap supplies. One day in January, the staff spent hours replacing every doorknob in the 32,000-square-foot building when they discovered the current handles werenât up to code. Chorlian says he hopes theyâll start work on the main sanctuary at some point later this year, although 2018 might be more realistic.
Shortly after the lawsuit concluded, another church approached North Jersey Vineyard, asking if they might be interested in selling the building. The other church hadnât wanted to deal with zoning headaches and a risky lawsuit, and was willing to offer $4 million as a starting price--at least a million more than the original purchase. Vineyard said no. âWe went through it so we could use the building,â Chorlian said. âWe werenât playing a new cable show, Flip That Church.â
But he understood why another church would pay a premium to avoid red tape. âWhen a church tries to come into a town, itâs not a level playing field. Thereâs so many things that the towns can do to make it hard, or to block them, or just procedure you to death,â Chorlian said. He hopes Vineyardâs case will help other religious groups navigate their own zoning challenges, but confessed that this has been the âthe hardest, biggest obstacle Iâve faced in all of my years of ministry.â
Itâs a shame when towns and municipalities make life hard for religious groups, the pastor said. âThey should be helping us.â
