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March/April 2010

Discover more articles from this issue.

Bound to Do Good

We welcome any sons of Adam who come in love among us and will not condemn, punish, banish, prosecute, or lay violent hands upon anyone, in whatever name,...

Religious Wars and Religious Freedom: A Troubled History

Although today Western society generally accepts that freedom of religious belief and expression is an innate human right, that position emerged only after centuries of religious intolerance and persecution, and centuries of interreligious hatred so extreme that it frequently resulted in wars of religion.


This particular global religious snowstorm might easily render constitutional snowplows ineffective.

Confessions of a Religious Fanatic

Words that depict religious faith at its highest ideal have been usurped by those who depict it at its lowest. And, unfortunately, but (thanks to folk such as Nidal Hasan) understandably, it

In the Name of Heaven: 3,000 Years of Religious Persecution

I am in the right, and you are in the wrong. When you are the stronger, you ought to tolerate me; for it is your duty to tolerate truth. But when I am the...

Keeping Up With the Jones

Sparks of religious controversy can be kindled from even the most everyday circumstances in the United States. One recent flash point was ignited by a...

Cross Purposes

Another Religious Display Case Comes Before the Supreme Court

The Hidden Danger of Conspiracy Theories

A problem with conspiracy theories is that they oversimplify world events in order to find a scapegoat.

Dialogue and Change

I am in Canterbury, England, at Canterbury Cathedral, home of the archbishop of Canterbury, head of the Anglican/Episcopal Church. I came to attend as an...

Magazine Archive »

Published in the March/April 2010 Magazine
by James Gibson

Sparks of religious controversy can be kindled from even the most everyday circumstances in the United States. One recent flash point was ignited by a minor fender-bender in a San Diego, California-area neighborhood and briefly erupted into a media firestorm. The confusion and fear this controversy caused could have been avoided, and the U.S. constitutional right to the free exercise of religion goes a long way toward explaining why.

David Jones is the pastor of the South Bay Community Church in National City, near San Diego, California. Since 2004, Pastor Jones and his wife, Mary, have hosted a gathering at their Chula Vista home on Tuesday nights, where they serve dinner and lead a Bible study for about 15 people.

Although there has been some dispute as to the exact particulars, it is generally accepted that during one of the Joneses’ Tuesday night events in the spring of 2009, a visitor to their home was involved in a minor traffic mishap with a vehicle belonging to the guest of another neighborhood resident. Pastor Jones personally paid for the $220 in damages to the vehicle, but afterward someone filed a complaint with San Diego County officials about the volume of cars and traffic in the neighborhood generated by the Tuesday night Bible study.

A San Diego County code enforcement officer responded to this complaint with a visit to the Joneses’ residence in April of 2009. The code enforcement officer asked Mary Jones questions about the Tuesday night Bible studies, such as if they “sang songs, said Amen, praised the Lord or not”—basically, whether or not the Tuesday gatherings were “of a religious nature,” Mary Jones reported.

Several days later, the Joneses received a written citation that ordered them to discontinue the Tuesday night Bible studies or face penalties of up to $1,000 and the prospect of a lien on their property. The citation alleged that the Joneses were in violation of a San Diego County ordinance requiring a “major use permit” for “religious assemblies.” The San Diego County officials interpreted “religious assemblies” to include the Joneses’ Tuesday night Bible studies.

Dean Broyles, an attorney and president of the nonprofit Western Center for Law and Policy, stepped forward to represent the Joneses. Broyles argued in a May 26 letter to San Diego County authorities that the Joneses’ Bible studies did not constitute a “religious assembly” within the meaning of the San Diego code, which defines them as “religious services involving public assembly such as customarily occurs in synagogues, temples, and churches.” Broyles further argued that the ordinance violated the Joneses’ rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), and the rights of free speech and peaceable assembly guaranteed by the First Amendment to the U.S. Constitution. He also relayed the Joneses’ offer to help alleviate any traffic or parking issues by ensuring that, in the future, all Bible study guests parked on the Joneses' family property.

One week after Broyles’s letter, San Diego County rescinded the citation and affirmed in writing that the Joneses’ Bible studies are “within the scope of residential use,” pursuant to pertinent law. Walter Ekard, chief administrative officer of San Diego County, also apologized to the Joneses publicly and in writing. Citing “unclear language in the zoning ordinance,” Ekard confirmed that the Joneses’ Bible study did not rise to the level of requiring a “major use permit.” He pledged to order a departmental review of all ordinances affecting assemblies to clarify that gatherings such as the Joneses’ “may continue without regulation” by San Diego County. Ekard also affirmed his commitment to religious freedom and promised to update the training for code enforcement officers and to improve his department’s procedures for determining when zoning citations are issued appropriately. San Diego County’s actions brought this dispute to a close with complete vindication for the Joneses.

Although this situation has been resolved satisfactorily for all involved parties, it is worth revisiting in these pages some months after the fact because of the educational benefits it offers to proponents of religious liberty, particularly those who fear government intrusion in the free exercise of religion. Free exercise rights can and often do clash with government laws and policies, but the genius of the Constitution’s religion clauses and corresponding legislative provisions is that they are designed to afford maximum latitude to individual and corporate free exercise up to and until the point where such free exercise rights infringe on the rights of others.

Protection of the Free Exercise of Religion

The U.S. Constitution, in the First Amendment of the Bill of Rights, contains twin guarantees concerning religion. The first requires that there be no establishment of religion and, second, that the freedom of religious exercise is protected. Taken together, these clauses provide strong legal protections for religious freedom. The First Amendment’s guarantee of the free exercise of religion—the clause of the First Amendment implicated in the Joneses’ situation—means generally that government should not interfere with religious practice. Strong proponents of religious liberty, including the Baptist Joint Committee for Religious Liberty and Liberty magazine, believe that government should not interfere with religious beliefs and practices unless it has a compelling governmental interest in doing so.

The Constitution, however, does not protect religious practice in all instances—just as it does not protect other Bill of Rights guarantees to an unlimited degree. This point is pivotal here because Broyles, the Joneses’ attorney, glossed over this fact in his public statements. He was quoted as saying that the government “may not prohibit the free exercise of religion.” Although he is to be commended for donating his time and talents to resolve the Joneses’ situation, Broyles’s statement here is not wholly accurate. Perhaps he misspoke or was quoted out of context. In any case, however, the principle is far more nuanced than his statement implies.

Religious liberty rights, like all of the guarantees of the Bill of Rights, are not absolute. At a certain point, the government may regulate in areas otherwise protected. For example, no one could successfully argue that the freedom of speech protects an individual who shouts “FIRE!” in a crowded theater to incite a riot, or that the freedom to peaceably assemble authorizes a mob to indefinitely block the doors to an individual’s residence or place of business. Similarly, no one could successfully argue that an individual’s right to free exercise is absolute. What if an individual’s religious beliefs included the ritual of human sacrifice? There would be overwhelming support for the government infringing on that individual’s free exercise rights, because his or her religiously motivated actions would conflict with the criminal law. A less extreme application of this principle is zoning ordinances such as the one that was misapplied in the San Diego situation. Such laws appropriately balance legitimate government interests—traffic control, maintenance of the residential character of neighborhoods—with the rights of persons of faith to engage in religious worship and assembly.

Statutory Free Exercise Protections

The U.S. Supreme Court is, of course, the ultimate arbiter of constitutional interpretation in the American system of government. For much of the nation’s history, it interpreted the free exercise clause in a robust and expansive manner, requiring the government to refrain from substantially burdening a person’s sincerely held religious beliefs unless a compelling governmental interest could not be pursued in a less- restrictive manner. Functionally, this meant that government was directed to accommodate specific religious beliefs whenever feasible.

However, in the landmark case of Employment Division v. Smith (1990), the Supreme Court, by a 5-4 vote, ruled that the free exercise clause protects much less, and does not require exceptions to generally applicable laws that incidentally burden religion. As a result of this stark decision, Congress passed legislation to restore free exercise law to the pre-Smith state of affairs. Today, free exercise protection depends in large part on the Religious Freedom Restoration Act of 1993 (RFRA), the (RLUIPA), and similar state laws and constitutional provisions.

RFRA prohibits any federal law that would substantially burden religious expression without a compelling reason. Congress had intended for RFRA to apply to state and local laws as well, but in 1997 the Supreme Court restricted its jurisdiction to federal law. Congress went back to the drawing board, and in 2000 a Republican Congress and a Democratic president enacted RLUIPA. RLUIPA is a more-targeted piece of legislation than RFRA, as it was crafted to protect the rights of persons in government custody and to increase protections of religious assemblies and institutions from zoning and historic landmark laws that substantially interfere with their free exercise. Because the Supreme Court had already rejected the across-the-board approach of RFRA, Congress pursued this targeted approach in RLUIPA because prisoners’ rights and religious land use disputes were among the areas in which free exercise controversies commonly arose. Unlike RFRA, it applies to all levels of government­—federal, state, and local.

RLUIPA mandates that religious property not be treated on “less than equal terms with a nonreligious assembly or institution,” and that land-use laws not “substantially burden” free exercise rights absent a compelling governmental interest of the highest order. In that same spirit, RLUIPA condemns government land-use regulation that “totally excludes religious assemblies from a jurisdiction” or “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.”

Although the zoning laws under RLUIPA’s jurisdiction may seem mundane when compared to constitutional free exercise rights, it should be noted that such laws are necessary to society as, in certain circumstances, they protect religious buildings and sacred sites from unwanted commercial development or from proximity to establishments of an adult nature. As Broyles noted in his communications with San Diego County, if the county had continued to insist that its zoning ordinance required that the Joneses procure a permit to continue their Bible studies, the Joneses would have sought relief in a RLUIPA lawsuit.

Handling a Religious Liberty Issue

Based on information that can be gleaned from the public record and media reports, most parties involved in the Jones situation acted properly. The Joneses were convening their Tuesday night Bible studies at their home, which they had every right to do. San Diego County officials were attempting to enforce zoning regulations, which is their duty to do. One code enforcement officer, either out of overzealousness, confusion—or some combination of the two—cited the Joneses for violating the zoning ordinances. When the code enforcement officer’s error was made known to superiors, the situation was remedied, and the Joneses received an apology and the promise of a procedural review to prevent future mistakes.


However, the situation resulted in a media firestorm. National and regional news outlets were soon running stories with varying degrees of accuracy. Viral e-mails began appearing in in-boxes soon after. Ideologues on both ends of the spectrum reacted, and in some cases, overreacted. This situation is arguably even more regrettable than the initial controversy, which was resolved promptly and peaceably. However, irrespective of the particular facts of this situation—not all of which may be known publicly—there are lessons to be learned from this incident.

So, what should be done if one finds oneself in a situation where his or her religious liberty protections appear to be infringed? Only as a last resort should you contact the media or threaten litigation. Make sure you have all the facts—both before the situation arises and thereafter. Liberty magazine and the Baptist Joint Committee are two of several outlets from which people can find authoritative, unbiased information. Contact the officials with authority over your situation, and ask pointed questions. If you are then unable to resolve the situation, more drastic measures, such as retaining counsel and alerting the media, may be appropriate.


Given what transpired in the Joneses’ case, some may fear that any religious liberty dispute will invariably beget a torrent of publicity and media attention. That is not so, and unduly inflaming a situation benefits no one, save for those with a political ax to grind. On the other hand, pointed but professional conversations with the powers that be—punctuated with a proper understanding of and respect for the constitutional and legislative underpinnings of religious liberty—can go a long way toward a satisfactory resolution of religious liberty disputes large and small.

James Gibson is legal counsel with the Baptist Joint Committee for Religious Liberty, based in Washington, D.C.

Author: James Gibson

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