Is Permission Needed to Help the Homeless?

 In the winter of 2023, the Burien Free Methodist Church openly expressed its desire to host an encampment of one hundred homeless individuals for a time of about three months. The city of Burien repeatedly asked the church to file a formal application to use the land as a temporary living space for those in need. Burien City has a clear municipal code (BMC 19.05.030) that expresses what types of land usage do not need approval by the government, “...the Code specifically designates the following land uses in a multi-family zone: townhomes, apartments, family day care homes, daycare centers, mixed-use buildings, public park, and recreation facilities, community residential facilities, nursing homes, religious facilities, schools, assisted living facilities, essential public facilities, government facilities, public utilities, personal wireless services facilities, community gardens, and enhanced services facilities”. Any other utilization of land not described in the Burien Municipal Code requires an application for temporary use. The city tried to make the process more appealing to the Church by waiving the application fee and expressing their support for the encampment. Yet, the organization continued to refuse as they felt the need to apply violated the Religious Land Use and Institutionalized Persons Act, their First Amendment right of free exercise, and the constitutional right of free speech. 

The Church continued on with their homeless encampment disregarding the city's requests. This resulted in Burien issuing an increasing monetary penalty amongst the church called a “Notice of Violation”, but they nullified these charges when the encampment ended. The fines were a way of establishing law and authority without the actual intent of terminating the encampment. 

The Burien Municipal Code has a similar goal to Thomas Jefferson's to “promote the general public health, safety, comfort, and welfare of the residents of the city of Burien”. Essentially the reason for this code and application process is to maintain the purpose of “peace and good order” just on a smaller scale than Jefferson was describing about the entire nation. The code is facially neutral in the sense that it applies to all religious and non-religious groups who own property in Burien, but who is to say that there is no bias present in the application process? What if certain religious groups are denied permits, while non-religious groups are accepted? Would that be an establishment of religion?

Mark Miller, the pastor of the Burien Free Methodist Church, feels that the free exercise clause of the First Amendment should allow the church to carry out its religious obligation of almsgiving without seeking any permission from the government. He feels that civil magistrates should not be left to decide what religious actions are admissible on their property if no harm is intended.  On the other hand, the Burien city government believes that it is within its jurisdiction to control what usages of city zones are permissible. The city views the code as an unbiased necessity to promote structure and stability. Is this truly a scenario that involves the free exercise clause? If so, to what extent can authority restrict religious free exercise?

What we are truly evaluating here is whether or not the Burien Free Methodist Church’s constitutional right of free exercise is being infringed upon by Burien City’s zoning laws which require the church to obtain a permit before pursuing the homeless encampment? 

The reason I struggled so much to figure out my answer to this question was due to some of the applicable information from the Cantwell v. State of Connecticut case. Mr.Justice Roberts explains in the opinion of the court, “The act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one…” and “Such censorship of religion as the means of determining its right to survive is a denial of liberty protected by the first amendment”. This demonstrates that civil magistrates should not be able to declare the sincerity of religion. This could apply to the Miller v. City of Burien case in a situation where a religious group applies for a temporary permit and is at the feet of a civil magistrate to decide if they can exercise their religion. Also, there is a risk of establishment if certain religions are given permits to use their property for some form of free exercise whilst others are not. Regardless of these details, I have come to believe that the constitutional rights of the Burien Methodist Church are not being violated. The municipal code is intended to ensure that property is being used in ways that will not threaten the safety and peace of their residents. The church was not prevented from exercising its religious obligations by any means. They were simply asked to apply for a permit that was ensured to be given to them because their intended use of the property had positive effects on the public.  I believe it is within the city’s jurisdiction to oversee and have some control over the usage of the property. Imagine the church was hosting the encampment of registered sex offenders on the basis of religious obligation. The government must be able to restrict this activity for the “peace and good order” of society. Government authority is necessary for the protection of people and truly no individual's right of free exercise is being infringed by this law.