Love Thy Neighbor? 

Not likely in rural Alameda County, where federal law may let a religious school circumvent local zoning rules.

Page 3 of 5

They went with option 3. But as things turned out, it was no ordinary lawsuit.

As one small indicator that Redwood Christian would play hardball, the school sued not just the county but every supervisor, planning commission member, and individual on the municipal advisory council, which consists of residents paid $20 per meeting to offer nonbinding advice to the county. Company lawyers went so far as to personally serve court papers on the supes during a staff retreat.

Redwood Christian seeks $30 million to cover lost tuition and increases in building costs since 2000, when it feels a permit should have been granted. The company's main claim is that the county discriminates against private religious schools by always requiring a conditional use permit, and because that permit can be rejected in a way it deems "capricious and arbitrary." The county's "patently unreasonable" denial, the suit claims, has violated the First Amendment rights of Redwood Christian's students, impeded its religious ministry, and possibly threatened its existence.

Specifically, the suit claims that Redwood Christian's high school must now remain at the Martin site, which is inadequate "to carry out its religious exercise of fulfilling its ministry of providing students a Christian education." Martin is too small, school administrators say, and lacks needed amenities, such as a chapel big enough for the entire student body, parents, and community members; science labs "to fully explore God's creation"; and a choir room for "exalting God and spreading the Gospel message through music."

Additional court documents blame the county for a 25 percent enrollment drop since the permit denial. They claim that parents concerned about the school's future withdrew their children, which caused tuition losses and consequent layoffs. The high school has no place to go if evicted again, Redwood Christian's lawyers argued. "It therefore faces a constant threat of imminent closure."

In its jump to the courts, Redwood Christian pulled out some big artillery. The Religious Land Use and Institutionalized Persons Act of 2000, or RLUIPA, is the handiwork of a Senate odd couple: Orrin Hatch and Ted Kennedy. One portion of the legislation ensures that "institutionalized persons" such as prisoners and people in government mental hospitals can observe their religious practices. That part was upheld unanimously by the Supreme Court in 2005. But the act's controversial land-use portion remains untested.

The federal law says a government body cannot impose land-use regulations that create a "substantial burden" on religious exercise unless it can prove it's furthering a "compelling" government interest in the least restrictive manner possible. The idea is to prevent a very subtle kind of discrimination in which local authorities hamstring religious development by imposing conditions that are difficult or impossible to meet.

There's a good reason for such legislation, says David Masci, a senior fellow at the Pew Forum on Religion and Public Life, who has been following litigation sparked by the law. Religious discrimination is very real in some communities, he says, and even when there's no religious antipathy, governments sometimes favor secular land uses simply because churches don't have to pay taxes.

Ensuring that religious communities get a fair shake resonates deeply with the public, Masci says. "Sixty percent of people go to church, and 94 percent say they believe in God or a higher power," he says. "Religious freedom is extremely important to Americans — that's why we came here."

The federal law, in effect, bolstered the local bargaining power of religious landowners. "RLUIPA is not carte blanche to take any action that a church wants to, but it does give them a kind of preferential status," Masci says. "The government can still get its way; it just has to meet a much, much higher threshold when dealing with a religious organization than when dealing with someone else."

The law contained another twist in the plaintiff's favor: Local governments that lose a suit brought under RLUIPA must pay the plaintiff's legal fees. This provision, some legal critics argue, intimidates officials into settling suits despite the merits of a case, and encourages aggressive litigation by plaintiffs, who face no such penalty if their suits get thrown out.

Since the federal law passed in 2000, dozens of such cases have sprung up nationwide. At least 47, including Redwood Christian's case, are being litigated by, or with help from, one organization: the Washington, DC-based Becket Fund for Religious Liberty. Indeed, Roger Gaither, the local attorney who originally filed Redwood Christian's suit, referred all questions to Derek Gaubatz, the fund's litigation director, who says his organization has defended the land rights of everyone "from Anglicans to Zoroastrians."

In 2001, the Becket Fund joined forces with Redwood Christian. Gaubatz calls the school's predicament "a paradigm of what Congress was after" when it passed its legislation, and calls land rights crucial to religious freedom. "When you take away the ability to have a place that's your home to be able to engage in and practice your religion, it's just a fundamental burden on religious exercise," he says.

Here's the biggest sticking point over the law's interpretation: Does it merely compel public officials to treat religious and secular cases the same, or does it mandate preferential treatment for religious interests? "Yes, they actually do get different and preferred treatment, and they should," Gaubatz says firmly. "There is no First Amendment for Wal-Mart, but there is a First Amendment protecting religious exercise."


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