The Right to Worship in One's Home?

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/