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January/February 2008

Discover more articles from this issue.

Field of Dreams

A central part of the "American Dream" has always been home ownership. Images of a white picket fence, a yard to cut, and a place to call one's own are...

Religious Faith Promotes Well-being

According to physician-medical scholar Dr. Walt Larimore, author of 10 Essentials of Highly Healthy People (Zondervan), several studies demonstrate...

Religious Freedom or Religious Fundamentalism?

Religious Freedom or Religious Fundamentalism? By Bert B. Beach Originally, the term fundamentalism began to be used in the United States...

Say Again!

Liberty is long on record as opposing so-called "blue laws." With varying amounts of cover these are laws with a religious basis. Invariably they...

An Interview with Roger Williams

Roger Williams' passionate belief in keeping church and state separate is a puzzle to many evangelical minds. With intellectual roots firmly planted in the...

The Dinosaur of Fundamentalism

A few days ago I went with my two children on a school outing to the Science Museum at the Baltimore Inner Harbor. Kids love science—or at least...

The Passing of the Christian Right

"Nearly 30 years after religious conservatives decided to reenter the political arena—after abandoning it as 'dirty' and leading to...

The Myth of a Christian Nation

Funny that I read The Myth of a Christian Nation the week Jerry Falwell died, because Falwell, in his own inimitable way, personified the thesis...

Magazine Archive »

Published in the January/February 2008 Magazine
by Todd R. McFarland


A central part of the "American Dream" has always been home ownership. Images of a white picket fence, a yard to cut, and a place to call one's own are as powerful today as they were in Mark Twain's Hannibal, Missouri. Renting—paying to be someone else's guest—has always conjured up images of second-class status, of not quite being a full member of society.

This dream of owning one's own home is just as true for churches as it is for individuals. Having their own house of worship is a powerful symbol and tool for any congregation. It demonstrates stability, presence in the community, and gives a locus for a congregation to grow and worship around. Renting simply cannot do this. Having to put things back for the "real" church that meets in the building after services, and moving church events to accommodate the owning congregation's schedule all serve to remind a church group that they are, in essence, "homeless."

There are also, of course, practical problems with renting. If you are sharing the church with another congregation, as is often the case, you are limited as to when you can use it. You cannot make changes or improvements to fit your worship style or needs. And, of course, there is always the risk of being evicted.

For all of these reasons the Jonesboro Hispanic church in Clayton County, Georgia, went looking for a place to build. And after an extensive search they found the ideal piece of land. It was seven acres, two more than the county required to build a church. The beautiful property was surrounded by trees, with a creek in the back. As a bonus, the house already on the land could be converted into meeting rooms and church office space.

While the property was not zoned for a church, no property in Clayton County was. A "conditional use permit" was required to build a church. While getting a conditional use permit required a vote by the county commissions, no one at the church expected a problem. A school was just across the street and there were six other churches within a radius of a mile or two. Further, the road the property was on was well traveled and scheduled to be upgraded to five lanes by the state.

Knowing that they needed approval to build their church and wanting to develop good relations with their new neighbors, some of the church leaders went door-to-door to reach out to the community. Much to their surprise, they discovered quite a significant amount of resistance to their building plans.

During these initial visits and later discussions neighbors raised many concerns. One neighbor was concerned that the church would become upset if his dangerous dogs attacked the children! He maintained that he needed these dangerous dogs to protect himself from the local wildlife—even though Clayton County, Georgia, is south of Atlanta and is almost the definition of a suburb. The only "dangerous animal" within miles of this property might be a deer jumping across the road, or the occasional coyote—truly dangerous if you are a rabbit. For another neighbor it was the scaring off of the wildlife—particularly the deer—that was a concern. One might ask whether or not these two neighbors got along.

In addition to going door-to-door, the church held an open house on the property to get better acquainted and to address any neighborhood concerns. Only one person showed up, and said hardly anything.

Curiously this lack of participation at the open house did not extend to the public hearing for the permit. The neighbors showed up in force. One got up and opined that in her experience churches brought crime to the neighborhood. Others expressed the view that a church was not appropriate for the neighborhood. Another felt the area already had too many churches. One person stated that a church with seating for 120 members would need 3,000 parking spaces! Unsurprisingly, given the level of opposition, the county voted to deny the permit.

After the hearing was over with and the church members were filing out, one neighbor said to the pastor, "You Hispanics—anytime you arrive anywhere, you bring snakes and rats." Another went on to say, "You are dirty, filthy people. We don't want Hispanics here." This Clayton County, Georgia, resident went on to express a desire that instead of building a church, maybe a restaurant—Mexican perhaps—could be built instead.

After the comments and reception at the hearing, the church group felt it had no choice but to resort to litigation. Attorneys specializing in religious liberty issues at the headquarters of the Seventh-day Adventist Church began working on the church's behalf. A local attorney named Andrea Jones, of Dillard & Galloway, was retained and filed suit in both state and federal court against the county.

This lawsuit made not only all of the "standard" zoning claims but also relied on the Religious Land Use and Institutionalized Persons Act of 2000. This federal law, often referred to as RLUIPA, was designed to combat exactly this type of animosity against religious organizations. It was a law that the Seventh-day Adventist Church, along with many other denominations, worked hard to get passed.

The goal of the law is to make sure that churches are treated equally both with other religious organizations and with secular groups. In short, if a county denies a zoning variance and this "substantially burdens" the religion, the county has to prove that it has a compelling reason for denying the request. The law also says a county cannot deny a church a permit if it gives one to a similar secular organization, such as a fraternal organization or lodge.

In this case, the county could point to no burden at all. The neighbor's complaints were not based on any legitimate objection to having a church in the area. Rather, they were religiously and racially based—as the comments about Hispanics and the preference for a restaurant instead of a church demonstrated. It became clear that the combination of a racial and religious minority simply scared these people. This was something different, something that was going to upset the status quo and they didn't like it. Had this been a more mainline church, or an all-white or all-black congregation there would have been fewer, if any, problems.

This of course is how the neighbors were treating the church, but what about the county commissioners? While its commissioners were smart enough not to make any of the ignorant comments their constituents made, they were unwilling to stand up to them. When the neighbor stood up and announced that churches attract crime, not a single commissioner said a word; instead they all sat there like this was a reasonable proposition. When it came to vote, they followed the wishes of the racially and religiously bigoted individuals who came out to speak against the church.

This of course is the problem with any democratic system; it is only as "good" as the people who vote in it. Politicians are rarely a courageous group and those inhabiting Clayton County, Georgia, are not the exception. But minority churches are often not able to use this process to their advantage. By definition they are a minority and therefore have limited political pull. Further, the very nature of small churches is that many times the congregants come from surrounding communities in order to get the critical mass needed to support a congregation. Thus, even with their limited numbers they are often not in the decision-making political jurisdiction. Oftentimes they have no effective way to affect the political calculus being made in their case. For the elected officials there is no political upside to voting for the permit, and quite a bit of a political downside.

Congress recognized many of these facts when it passed RLUIPA. This law was passed after a long and winding path that started with the Supreme Court changing the standard for religions challenging decisions made by representative bodies in the early 1990s. Congress realized that sometimes the political process does not always work in every community every time. So they passed a law to give minority religions a chance to challenge local decisions in federal court. Religious institutions cannot challenge every decision and the law does not make them exempt from zoning and permitting requirements. What the law does is give otherwise disenfranchised religious communities a chance to challenge the decisions of sometimes arbitrary and capricious local zoning boards.

That is exactly what happened in the Jonesboro case. Once the litigation started, it became clear that the county had no legitimate reason to deny this request. When the few non-ludicrous or irrelevant reasons given for denying the permit were examined, it became clear that the county's own staff did not consider the objections valid. The alleged increase in traffic turned out to be a non-issue when the county's traffic planner was deposed. The church needed 40 parking spaces by county regulation, not 3,000! The accusation of increased criminal activity fell into the ludicrous category.

What became clear during the litigation was that the county was essentially buying itself political cover with its constituents with the church members' money. By having a lawsuit they were able to go to the voters and say they had no choice. Blame it on those idiots in Washington for passing this law.

The frustrating part for the local church of course was that this delayed the project by about two years. Further, it cost thousands of dollars in attorney fees and litigation expenses; not a penny of which would so much as buy a brick. While RLUIPA does have a provision allowing a religious institution that prevails to recover its costs, the county was not willing to pay as part of the settlement. Thus the church had to make a decision—continue on with the litigation that it would almost certainly win, but would take another six months to a year; or eat the costs paid to the lawyers and get on with building their church. They chose to move on.

In many respects, Jonesboro Hispanic was fortunate. As part of the sisterhood of churches of the Seventh-day Adventist Church they have access to resources and funding that many local congregations would not have. The church's headquarters employs an attorney who works full-time on religious liberty issues throughout the country. Further, the various organizational levels of the church worked together to fund the litigation from donations earmarked to support religious liberty, as well as regular donations.

Today the Jonesboro church is back on track to build its new house of worship. The path it took to get to this point was longer and more expensive than it should have been for either side. What this case really reinforces is the need for fostering a respect for those that are different than us. Laws can give some protection, but not until a respect for our fellow humans' right to freedom and worship is respected by everyone—from dangerous dog-owning neighbors to county board chairs—will we have true freedom.


Todd McFarland is an associate general counsel for the Seventh-day Adventist Church, specializing in religious accommodation issues. He writes from Silver Spring, Maryland.

Author: Todd R. McFarland

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