During the summer of 2023, Pastor Howard Kaloogian opened the church, Grace New England, in Weare, New Hampshire, a plant of Grace Community Church in Texas. Pastor Kaloogian had held various secular gatherings at his home since moving to Weare in 2015, including weddings, backgammon tournaments, a meeting for the annual Pine Tree Riot, and even political rallies, most recently for presidential candidate Robert F. Kennedy Jr.. Additionally, he had hosted weekly Bible studies and weekend church services of a smaller scale on his property. Before hosting large gatherings, Pastor Kaloogian’s wife sought approval by the Weare Planning Board, and was informed that as long as the family did not charge fees for admittance into their events, submission of a site plan would not be necessary. It could use its barn for any lawful purpose.
However, this all changed on August 23, 2023, when Tony Sawyer, the Zoning Officer for the Town of Weare, visited Pastor Kaloogian’s property unannounced, and notified the Pastor that he was prohibited from holding religious assemblies at his estate, given the property was zoned “residential.” . The zoning officer noted that in order to continue holding these assemblies, a conditional use permit would be required, which Mr. Sawyer recognized was unlikely to be approved. Later that day, Pastor Kaloogian sent a letter to the Chair of the Weare Planning Board, Craig Francisco, describing the events, both secular and religious, that he had been able to previously host with no issue. Nearly a month later, Chairman Francisco wrote back informing Pastor Kaloogian that he would need to apply for a site plan in order to continue hosting church gatherings in his barn. The following month, in preparation for the cold winter months ahead, Pastor Kaloogian sought to install an upgraded, radiant heater in the barn, and hired a plumber to acquire a permit from the Town of Weare that would enable a gas line to be connected to the heater. Initially, the town officials began to process the request, but soon refused after finding out the address given was that of Pastor Kaloogian’s barn. During the following months, town inspectors did arrive at the barn to consider granting the permit, but ultimately, final approval was never granted. This occurred two months after Mr. Sawyer had sent a cease-and-desist notice to Pastor Kaloogian, subjecting him to significant fines each day he failed to comply.
On February 9, 2024, after town officials threatened to take legal action to force Pastor Kaloogian to abide by their zoning demands, First Liberty Institute filed a lawsuit on behalf of Kaloogian and the church. The basis of this case pertains to whether the Town of Weare and its officials violated Pastor Kaloogian’s free exercise rights by requiring him to apply for a site plan and conditional use permits, among other restrictions, in order to carry out worship in his home with his congregation of Grace New England. The most salient issues present in this case center around questions of neutrality, as well as concepts such as substantial burdens, compelling state interests, and the implementation of the least restrictive means.
I believe the Town of Weare violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), § 674.76 of a New Hampshire Statute, the Town’s own zoning ordinances, and Part I, Article 5 of the New Hampshire Constitution. The RLUIPA prohibits “any government from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The wording of this act is similar to that of Part 1, Article 5 of the New Hampshire Constitution, which has been interpreted by the New Hampshire Supreme Court to require the application of strict scrutiny for any substantial burden on religious free exercise. §17.2.1 of the Town of Weare’s own zoning ordinances allows for religious use of residential property, even explicitly permitting use by a church. Despite this, however, Pastor Kaloogian was being subjected to burdensome requirements in order to carry out worship at his home. In the 1963 case, Sherbert v. Verner, the Supreme Court explained its interpretation of a substantial burden to be something that “forced the adherent to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of her precepts… on the other.” Although the facts of this case are slightly different, this interpretation can still be applied here. The need to apply for a site plan and conditional use permits, in addition to the multiple inspections that were required of Pastor Kaloogian, put him in a position where he felt he had to choose between following his religion, or being subjected to hefty daily fines for non-compliance. Thus, I believe a substantial burden was imposed on his ability to freely exercise his religion.
The stated purpose of the zoning ordinances is to control vehicular and pedestrian movement, protect the public welfare, guard safety concerns, among others. When looking at the “compelling state interest” provision of the RLUIPA, despite these stated purposes, I still do not find these interests compelling enough to justify imposing the burdensome restrictions on Pastor Kaloogian and his Church of New England. As will be described later, the town does not place similar restrictions on secular gatherings of comparable or larger scale, which not only leads me to question the validity of the stated governmental interest, but also whether the Town of Weare was remaining neutral in its decisions. The Robert F. Kennedy Jr. meeting and various weddings hosted by Pastor Kaloogian have held hundreds of people, considerably more than the average of 30 individuals who attend the Pastor’s weekend church services. Therefore, in evaluating sheer numbers, it seems these church services pose a significantly lower risk than other larger secular events. This then raises the question of why the Church of New England’s services are the only events facing these restrictions. Additionally, even if the Town of Weare were able to prove a compelling interest, I do not believe the actions taken represent the least restrictive means to achieving the stated interest. Nevertheless, the zoning ordinances still permit churches in districts zoned “residential,” so the town's actions in this case not only violate the ordinance itself, but also the provisions of the RLUIPA. Additionally, the Town of Weare is violating the New Hampshire Revised Statute § 674.76, which mandates that “no zoning ordinance or site plan review regulation shall prohibit, regulate, or restrict the use of land or structures primarily used for religious purposes.” Therefore, the town’s zoning ordinances violate both the RLUIPA, as well as this New Hampshire statute.
The other salient issue in this case pertains to the concept of government neutrality. The RLUIPA states that the government cannot “impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious institution or assembly.” It is important to first note what constitutes “neutrality.” The Supreme Court held in the 2021 free exercise case, Tandon v. Newsom, that “government regulations are not neutral and generally applicable ... whenever they treat any comparable secular activity more favorably than religious exercise.” Based upon this interpretation of neutrality, it is evident that the Town of Weare has violated the equal terms provision of the RLUIPA by treating religious and non-religious gatherings differently. The town has failed to impose similar restrictions upon comparable secular events held at both Pastor Kaloogian’s home, as well as the homes of other residents. Additionally, the town’s actions are not generally applicable, as these restrictions have not been uniformly applied; Pastor Kaloogian’s home has been assessed on an individual basis.
The facts of this case largely parallel those of the 2005 case Konikov v. Orange County. In that case, the city of Orange County tried to prohibit a rabbi from holding religious gatherings in his home, while allowing other social gatherings of a more secular nature. The US Court of Appeals, Eleventh Circuit argued that Orange County’s zoning policy violated the equal terms provision of the RLUIPA, noting that “by applying different standards for religious gatherings and nonreligious gatherings having the same impact, [the town’s enforcement action] impermissibly targets religious assemblies.” Although this case was not decided in the same circuit the Town of Weare would be, and thus the decision is not binding in that circuit, many of the arguments made in that case can also be made in this one. I believe the court ruled correctly in Konikov v. Orange County, and the Church of New England case should be decided similarly.
In conclusion, I believe that Pastor Kaloogian was denied his free exercise of religion. Through the Town of Weare’s violation of the RLUIPA, § 674.76 of the New Hampshire Revised Statute, the Town’s own zoning ordinances, and Part I, Article 5 of the New Hampshire Constitution, it has appeared to target religious gatherings over secular ones, while placing a substantial burden on Pastor Kaloogian’s ability to freely exercise his religion. At the same time, the Town of Weare has failed to justify a compelling governmental interest, and likewise, to implement the least restrictive means to accomplish that compelling interest.
Sources:
https://firstliberty.org/cases/grace-new-england/
https://decisionmagazine.com/town-officials-try-to-shut-down-barn-church/
12 comments:
Great post! I think you raise many great points that allow me to agree with you. I understand the interest of the state in zoning laws, but I do not understand, as you note, why they did not raise this issue with much larger, secular meetings. If the state was really interested in zoning laws to keep the people safe, why did they not allow only religious meetings to be held? If this law was enforced for all meetings in the barn, I may have decided the other way, but it is clear that the rights of the religious meeting are infringed, as opposed to secular meetings. Therefore, I agree with your argument and great points. I do not see this as neutral, as religious meetings are not allowed to be held, while much larger, secular ones are.
Hi Bella,
This was a great post! You thoroughly explained the issue at hand, and how it blatantly violates the free exercise rights of Pastor Kaloogian. I agree with your holding that the Pastor’s free exercise of religion rights were violated in numerous manners. I feel that your mention of Sherbert is important to this case because of the fact that the Pastor had to choose between his religion and being subjected to heavy fines for non-compliance. As we have seen in many cases, this is an unjust requirement, and invalid in requiring to do so. Additionally, I disagree with the fact that Kaloogian’s house and activities were assessed on an individual basis, and secular purpose was blatantly favored over religious purpose. I believe that this case is essential in recognizing the enduring issue of secular purposes being favored over religious.
Hi Bella! Excellent post for your discussion this week. I enjoyed your lengthy and in-depth analysis of this case. In terms of the facts of the case, I agree with you in concluding the municipal government violated and restricted the free exercise rights of Pastor Kaloogian. The biggest issue I hold in determining whether these policies are constitutional is the criminal sanction (through a monetary fine) being imposed on the Pastor for simply gathering to practice his religion. There is a element of coercion here as the Pastor may feel as though he is being forced to comply with the ordinances at the expense of his religious freedom. We can even see the hostility towards religion, as Tess points out, that other secular meetings were not subject to the same strict scrutiny that his religious meetings were faced with. For the policy to be hostile towards religion automatically counts as a violation of the Free Exercise Clause, and because of this I agree with the entirety of your analysis.
Hi Bella,
This is such an interesting post. I do agree that the municipal government clearly violated the Free Exercise rights of Pastor Kaloogian. The use of Sherbert v. Verner as a precedent case is really a key issue here. Having to choose between religion and being subjected to serious fines is a clear burden. Not allowing religious meetings does seem targeted over secular meetings. I completely agree with your analysis and points that you made throughout the post!
This was a very well written and in depth analysis of Pastor Kaloogian and the zoning laws. I agree with your decision that this is a violation of Pastor Kaloogian’s Free Exercise clause of the First Amendment by the Town of Weare. I believe that the most compelling aspect of this case that makes it clearly unconstitutional is that other events in residential areas with larger groups of people were not investigated or requesting for them to have a conditional use permit. If the religious groups were treated the same as other groups then I do not see why this would be unconstitutional. However, since religious meetings are being targeted shows that they are being discriminated against which is unconstitutional. I understand that there is a compelling state interest to have zoning laws but if the zoning laws are not provided to all meetings then the compelling state interest is not compelling.
Hi Bella,
I loved your post particularly because it reminded me of an issue the Jewish community is facing on the Big Island of Hawaii with regard to zoning issues (https://firstliberty.org/cases/rabbi-levi-gerlitzky/). Nonetheless, I agree with your analysis that Town of Weare is in active violation of First Amendment principles. The town policy seems to directly interfere with neutrality, since the this policy directly and strictly impacts religious groups. Further, since there is no reasonable government interest that has been extracted from this case, I believe that Pastor Kaloogian should be allowed to continue his religious practices.
Hi Bella,
I found this post very interesting. I believe that the pastor's free exercise rights were violated. From the facts were presented, I think that the pastor was going through all of the necessary steps in order to use the barn as a religious and secular meeting place. I found it interesting that they allowed it to go on for so long until they decided that it was not allowed. Also, I agree with you that there was not enough state interest in this case because the pastor was willing to make the changes in order to keep having meetings there.
Hi Bella,
I thought you articulated your opinions very well and presented the facts of this case in a great sequins. I agree with your interpretations of this case which states that the Town of Weare in New Hampshire is violating Pastor Kaloogian's First Amendment rights of Free Exercise. Not only does the law seem unfair, when put in practice it is not neutral and benefits secular gatherings over religious, therefore promoting a hostile environment steered toward religion. The precedent in Sherbert v. Verner established that making an individual chose between their religion and other heavy burdens is unconstitutional. Because the town was so controversial in allowing large secular gatherings yet disallowing smaller yet religious gatherings is why this case was so interesting. Seeing cases like this that involve zoning laws continues to make me wonder their purpose and what they essentially do, as it seems they almost create more problems than solve.
Bella,
This was an interesting case to analyze. I acknowledge the state’s interest in zoning laws; however, I am concerned with Part I, Article 5 of the New Hampshire Constitution, which, as you emphasized, appears to clearly target only religious gatherings. This clearly disconnects from New Hampshire Statute § 674.76, which mandates that no zoning ordinances shall infringe upon any land or structures used for religious purposes. Overall, there is a lot of inconsistency. Regardless, I would agree with your opinion on this case.
Great post Bella! I concur with your assessment that the actions of the Town of Weare constitute a clear violation of First Amendment principles. What renders it to be unconstitutional is the apparent inconsistency in its enforcement. Other larger affiliated groups were not subjected to similar scrutiny or required to obtain a conditional use permit. I am in agreement with your analysis it is evident that the municipal government infringed upon the free exercise rights of Pastor Kaloogian.
i agree the Pastor was not allowed to freely practice his religion and his freedom to freely practice his religion was severely restricted by the Towns violations of the revised statute. I liked your mention of the Town's own zoning ordinances, and article 5 of the state Constitution as it was definitely key to understanding this case. I also think it appears as though the Town favors religious gatherings over secular ones, and was yet simultaneously unable to establish any compelling governmental interest to further that goal. Great post, and a lot of good details.
This was another compelling case that is very cool to analyze. I will agree with you on your evaluation that the Town of Weare is showing a violation of the First Amendment. The glaring red fact is that this creates a agenda against religion. The fact that the town of Weare would allow large secular gatherings and not smaller religious ones is very telling. The Pastor went through all the correct steps and is being discriminated against in my opinion. The zoning laws should apply to every group. This is not neutral.
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