Both the U.S. and Washington constitutions protect the free exercise of religion to all individuals.1 The Washing-ton constitution, however, affords even greater freedom than the U.S. constitution.2 Where the U.S. Supreme Court has held that generally applicable laws are constitutional under the U.S. Constitution, our state Supreme Court has held that even incidental impediments on religious exercise, if significant, may violate the Free Exercise Clause of the Washington constitution.3
In Washington, two key cases shape the application of land-use regulation on religious structures. In City of Sumner v. First Baptist Church of Sumner, the first of the two cases, the Washington Supreme Court held that the application of land-use regulations by a governmental agency to premises where religion is exercised must balance the church’s free exercise of religion claim against protection of public safety.4 The Court further held that religious exercise extended beyond worship services to activities sponsored by a church.5
In City of Sumner, the church was operating a school in the basement. The city demanded that the church make alterations to the basement to comply with fire and safety code requirements for a school. Reversing the lower court’s decision requiring the changes, the Supreme Court held that in applying land-use regulations to a religious institution, governmental entities must be flexible. They must balance the church’s right to free exercise against the public need for regulation. In addition, the means chosen to enforce the public interest must be necessary and the least restrictive available to achieve the ends sought.6
More recently, the Supreme Court held in Open Door Baptist Church v. Clark County that churches could be required to apply for a conditional use permit before being permitted to locate in a certain zoning district.7 In Open Door Baptist Church, the Court aligned itself more closely with the U.S. Supreme Court in holding that a regulation that impacts religious activity is valid if it is neutral toward religion and of general applicability.8 Although this has been viewed somewhat as a departure from earlier decisions, the balancing test announced in City of Sumner is still good law.
Open Door Baptist Church stands for the proposition that cities can require churches to follow an administrative land-use regulation process. The balancing test, however, entitles churches to “flexible and creative,” if not “preferential,” application of land-use regulations, including those relating to continuation of non-conforming structures, when regulation substantially burdens religious exercise.9
When the application of a land-use regulation substantially burdens religious exercise, the government must balance the strength of the public interest to be served by the application of such regulations against the group’s claim to free exercise under the Washington constitution.10 Simplified, the Washington test asks:
- Whether the party claiming an infringement has a sincere religious belief;
- Whether the governmental action burdens the free exercise of a religious group; and
- Whether the burden is offset by a compelling state interest.11
The Court in Open Door Baptist Church also clarified that application of land-use regulations burdens free exercise of religion when it results in a “coercive effect upon the party’s practice of religion.”12 However, churches are not per se exempt from zoning and other land-use codes.13
Neither the state nor the federal free exercise clause guarantees churches the right to be free from reasonable zoning and other land-use regulations.14 Churches can be required to follow the administrative process. It is only when a church shows a very specific hardship to justify an exemption from such regulations that the constitution steps in and requires accommodation by the local zoning authority.15
In 2000, Congress adopted the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA prohibits government from imposing or implementing a land-use regulation in a manner that imposes a substantial burden on a person’s religious exercise, unless it demonstrates that the imposition of the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering such interest.
“Religious exercise” is broadly defined and includes tangential functions such as schools, nursing homes and retreat centers operated by religious establishments.16 What constitutes a “substantial burden” has yet to be considered by the U.S. or Washington supreme courts.
Meanwhile, the Ninth Circuit, while affirming a city’s denial of a rezone and noting that the church was not precluded from operating its school elsewhere in the city, has interpreted RLUIPA narrowly to mean a “significantly great restriction or onus.”17 Our state Court of Appeals, following Open Door Baptist Church, affirmed Clark County’s denial of a conditional use permit for a church group wanting to locate its administrative buildings in an agricultural district.18 The church’s claims were based on RLUIPA and the state and federal constitutions.19
A local zoning authority’s land-use and zoning regulations process generally is applicable to churches. However, regulation is unconstitutional when it results in a coercive effect operating against the practice of religion (i.e., the challenged regulation somehow compels or pressures the individual to violate a tenet of his religious belief).
For example, restricting the location of a religious group’s administrative building or school is not coercive, but dictating architectural and exterior appearance of a religious structure may be coercive.
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W. Scott Snyder is a senior member and Bio Park is an associate in the Municipal Law Department of Ogden Murphy Wallace, PLLC. They can be reached at ssnyder@omwlaw.com and bpark@omwlaw.com.
1 See U.S. Const. amend. I and Wash Const. art. I, § 11.
2 Compare Employment Div. v. Smith, 494 U.S. 872 (1990), with First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 226, 840 P.2d 174 (1992).
3 See id.
4 97 Wn.2d 1, 639 P.2d 1358 (1982).
5 Id.
6 Id.
7 140 Wn.2d 143, 995 P.2d 33 (2000).
8 Id.
9 See Timberlake Christian Fellowship v. King County, 114 Wn. App. 174, 185, 61 P.3d 332 (2002).
10 See First Covenant Church of Seattle, 120 Wn.2d at 226–27.
11 Munns v. Martin, 131 Wn.2d 192, 199-200, 930 P.2d 318 (1997).
12 140 Wn.2d 143, 995 P.2d 33 (2000).
13 See id.
14 Id.
15 Id.
16 See 42 U.S.C. § 2000cc-5(7)(B).
17 San Jose Christian College v. City of Morgan, 360 F.3d 1024 (9th Cir. 2004).
18 North Pacific Union Conference Ass’n of the Seventh-Day Adventists v. Clark County, 118 Wn. App. 22, 74 P.3d 140 (2003).
19 Id.
