Monday, March 22, 2010

Zoning Battle Escalates to First Amendment Test

In 2003 the First Baptist Church of Clarendon in Arlington, Virginia determined that it needed to renovate or rebuild its church building. However, the Church could not finance a renovation or new building and therefore devised a plan by which it would finance the building with public funds. According to the suit, “the Church decided to make the provision of affordable housing part of its religious mission, and it proposed a plan to develop a new Church facility.” One year later, the plan was approved by the county and construction commenced in December 2009. County residents have attempted to sue to stop construction on the basis of zoning and “intrusiveness,” but have failed. Thus, instead, county resident and financial adviser Peter Glassman is suing the church, the county, and the state in federal court on the basis of the Establishment Clause of the First Amendment of the United States Constitution.

The suit states that the affordable housing provision was not the main purpose of rebuilding the Church, which is evident in the time line of events that took place between 2003 and 2004. Plaintiffs also state that “this case represents a remarkable example of state actor taking unprecedented steps to promote, sponsor and fund the demolition, rebuilding and renovation of a Baptist Church with taxpayer money.” In other words, there is excessive entanglement between church and state. Furthermore, Plaintiffs argue that this case is quintessential violation of the Establishment Clause. The diagram of the new Church shows that the physical layout of the renovated building reflects an obvious religious overtone. The suit states that “the building lobby and entrance will be within the Church portion of the property, and will be shared with the Church. The housing units will share with the Church a common foundation, common elevator, and other common infrastructure such as piping and walls.” Residents of the subsidized housing will be subject daily to the Church’s message.

However, as the author of this article from the Washington Post points out, this is a difficult case to prove. In order to prove that this is a violation of the First Amendment Establishment Clause, Plaintiffs must prove that the project fails the Lemon Test, which states that its purpose cannot be religious, it neither advances nor inhibits religion (has no religious effect), or does not create excessive entanglement between the state and the Church.

So, does the Church project pass the Lemon Test?

Although it seems that there is certainly a religious purpose, the County argues that there is a clear secular purpose of creating affordable housing. However, I agree with the Plaintiffs. The original purpose of the project was the rebuilding of the Church and even though that purpose has expanded to include affordable housing, which is certainly secular, I still believe that the religious purpose is the dominating one. On whether the project has a religious effect, I think that it depends. If the space shared by the Church and apartment dwellers contains religious paraphernalia, then there may be an advancement of religion. If this is not the case, then the advancement of religion is a stretch.

Even if I agreed with the County and the Church on the first to accounts of the Lemon Test, the Church project absolutely violates the last part of the test: excessive entanglement. First, “the County granted unprecedented zoning variances to benefit the Church,” which were actually in violation of Arlington’s own zoning ordinances. Second, tax payers’ money was ultimately used for the rebuilding and renovation of the Church.

I will be surprised if the U.S. District Court of Alexandria sides with the County and dismisses the case pending the hearing on the 2nd of April. However, at this point, construction has already begun and a separate non-profit organization, the Views at Clarendon, has been set up to see the development through and manage the apartments thereafter. The affordable housing is needed in Arlington County due to recent incline in real estate prices. Thus, should the renovations simply continue, creating the promised seventy affordable housing units despite the Constitutional violation?


Abby P said...

This particular case is certainly an interesting one. It definitely seems that this case would not pass the Lemon test. As Lauren asserted, even if the affordable housing provided by the church passed the first two prongs of the Lemons test, it would be difficult to argue that providing public funds for such a building project, did not result in an excessive entanglement of church and state. Personally, I believe that this case fails the Lemon test. It is clear that the church only took on the affordable housing project in order to receive public funds. The difficult aspect of this case, however, as Lauren pointed out, is that Arlington is in desperate need of affordable housing, and the church, with the help of public funds, will provide just that. It will be interesting to see how the district court rules on this case; however, ultimately it seems as if this is an excessive entanglement of church and state.

LaurenL said...

I understand the need for affordable housing in Arlington, but I do not think it is appropriate that the government is essentially teaming up with a religious institution to build apartments on top of a church sanctuary. As Lauren and Abby stated, this is clearly excessive entanglement. I also believe the First Baptist Church of Clarendon is taking advantage of the government in order to further its own motives, which is made obvious through the fact that the Church did not make the provision of affordable housing part of its religious mission until after realizing it could not afford to renovate the building without assistance. The whole project just seems sketchy to me, from the excused zoning ordinances to extreme amount of tax dollars being used, and it leaves me to wonder why the state is so determined to be involved with this project.

Alicia_W said...

This article instantly reminded me of Shannon's earlier post about how Colorado Springs is failing to be able to provide public amenities for its community due to a lack of tax dollars and how even though the church made up a large part of the population, it continued to be exempt from paying the taxes the state so desperately needed. This case is similar because excessive entanglement would be beneficial for the community. Even though the affordable housing project is what the community needs, unfortunately it does directly support the church with public tax dollars. I agree with Lauren that the church is using this project to indirectly fulfill it's own needs. If there is a need for housing, why does the state not use the public funding for its own affordable housing project, without the involvement of the church?

Justin M said...

I, like the other posts, agree that the First Baptist Church’s request for public funds does constitute excessive entanglement between the Church and State. Although I am uncertain that the Lemon Test is a logical way to evaluate what should or should not be constitutional in this case, this particular situation clearly fails the first and third prongs of the test. I would possibly have come to a different conclusion on this matter if the Church had a history of clearly supporting the need for affordable housing units. However, it does appear clear that this endeavor was solely the result of the need to renovate their church. It is clear that Arlington County is in need of affordable housing units and that to this end, the Church would be providing a primarily secular good. It may be the case that neither the Church nor the State has large enough funds to provide these housing units without the help of the other. To this end it is sad to see the Church and State stand aside and watch members of their community suffer. Although I agree that the current request by the Church violates the First Amendment and fails the Lemon Test, I believe that something must be done for the betterment of the community. To this extent, I would not be opposed to hearing other possible options to solve this issue even if the result would slightly bend the rules of the Lemon Test.