By Marjorie Hansour
Illustration By David Klein
What is a church? The Nebraska Supreme Court was asked to decide this question in a case stemming from a liquor license granted to a Kum & Go convenience store in Omaha. The Kum & Go is located across the street from the House of Faith, a nondenominational Christian congregation that has been worshiping in its rented building since 1990. In Nebraska a zoning exclusion law prohibits the issuance of a liquor license to an entity located within 150 feet of a school or church. No party disputed the zoning law, but a legal battle quickly erupted over a murkier issue—whether the House of Faith could really be called a church.
The controversy began in 1998, when the Kum & Go store applied for a liquor license. The Omaha City Council, citing the 150-foot zoning exclusion, denied the license, noting that the front door of the store is only 138 feet away from the front door of the House of Faith. Under Nebraska law the Kum & Go then had the right to appeal the city's decision to the Nebraska Liquor Control Commission. The commission overrode the city council's decision, stating that the House of Faith did not meet the liquor commission's definition of a "church."
The commission defined a church as "a building owned by a religious organization used primarily for religious purposes which enjoys tax-exempt status." Since the House of Faith rents space in its building and is not tax-exempt, it clearly does not qualify as a church under the commission's definition.
Kum & Go lawyer Michael Lehan defended the commission's law, saying it is no different from those requiring schools to be certified or colleges to be accredited.
Though the House of Faith was not considered a church according to the liquor commission, Lehan stated, "This does not mean that people do not assemble on occasion at the building and worship God."
While the House of Faith itself never disputed the issuance of the liquor license—its pastor, Mary L. Sherman, stated in her affidavit that the congregation "had chosen to use its energies to help its community in other ways"—the city of Omaha did take issue with the state's decision.
The city appealed the liquor commission's decision to the Lancaster County District Court, and the court once again sided with the city, but that wasn't the end of the dispute. The case of City of Omaha v. Kum & Go went on to the Court of Appeals, where the Nebraska Supreme Court pulled it, choosing to hear the case directly.
The American Civil Liberties Union (ACLU) filed a brief in support of the city. "We got involved because of the issue of separation of church and state," said Tim Butz, executive director of the Nebraska ACLU. "We took on [the case] on the basis of the First Amendment argument that the commission's ruling infringed upon the rights of the members of the House of Faith to associate with one another, and that the government's definition of what constitutes a church amounted to a violation of the Establishment Clause."
In its brief the ACLU argued that the state was discriminating against small churches and poor worshipers.
"The House of Faith is a store front church," said Butz. "Its congregation is poor. It has no assets and therefore has never attempted to become certified as tax exempt or to incorporate. They're just people who for more than ten years have met in the same rented building for the purpose of worship."
The ACLU argued that, while ownership of a building and tax-exempt status should certainly be factors in determining what is or is not a "church," these criteria should not be hard requirements. As stated in its brief, the ACLU maintains that "such a definition is not only contrary to the plain and ordinary usage of the word 'church,' but so narrowly defines the term that it would operate to infringe upon the free exercise rights of religious organizations and would constitute a denominational preference in violation of both the Nebraska and federal establishment clauses . . . . The freedom of Nebraskans to practice the religion of their choice without interference from nearby liquor stores should not depend on the worshipers' ability to pay a mortgage."
The ACLU maintained that the Nebraska Liquor Control Commission exceeded its statutory authority when it promulgated a definition of "church" that requires the building to be owned by a religious organization that has tax-exempt status. It noted that the precise issue of the meaning of the word "church" was decided by the Nebraska Supreme Court in past cases and defined as: "The plain, ordinary, and popular meaning of the word 'church' would indicate a building where Christians gather to worship God or a building in which people assemble for non-Christian worship."
Based on this definition, the House of Faith would certainly constitute a church. According to the brief filed by the city of Omaha: "The House of Faith has a congregation of between 75 and 150 members and holds religious worship service each Sunday and Friday; prayer meetings each Monday; and choir practice each Saturday. Services at the House of Faith are open to any person wishing to attend. The building's sole use and function is for worship or religious purposes. . . . Photographs of the entrance of the House of Faith clearly show that the building is held out to the public as a place for religious services open to the public. Religious symbols of a cross and dove are publicly displayed on the entrance door and on the sign above the door."
According to Butz, "[the ACLU] felt that if the government is going to give a benefit to a church it must do so in a way that doesn't infringe upon people's right of association and doesn't discriminate or give preference to any type of religion. While this case does not involve a denominational preference, there is certainly a preference based on economics. An affluent church would never have a liquor license this close to its front door."
On April 19 the Nebraska Supreme Court agreed with the arguments presented by the city of Omaha and the ACLU, vacating the commission's order granting Kum & Go a liquor license and reversing the decision of the commission.
In its ruling the court stated that "the House of Faith is a church. Whether or not a building is a church . . . does not depend on the legal ownership of the building. The plain meaning of the word 'church' encompasses buildings in which persons regularly assemble for religious worship, regardless of whether the building is owned or rented by those persons. . . . The mandatory criteria for a church, set forth [by the liquor commission] are contrary to the plain meaning of the word. . . and may arbitrarily exclude from their definition a number of churches that are entitled to the protection of the statute."
While the court's decision was certainly a victory for the separation of church and state in Nebraska, it remains to be seen whether the ruling will have broader implications. "I think it may," said Amy Miller, Nebraska ACLU legal director. "These issues come up relatively frequently and sometimes how a court rules on one matter can have outside implications. Whether this decision will have an impact on courts outside of Nebraska is hard to say. It may be looked to for guidance by other courts but it won't be binding on any other court outside of Nebraska."
Marjorie Hansour is a freelance writer in San Francisco, California