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Richard Hammar, editor of Church Law & Tax Report, said that one federal court has found RLUIPA unconstitutional. The case is now in appeal. Hammar says that despite challenges to the law, it was carefully drafted to avoid the constitutional problems of its predecessor, the Religious Freedom Restoration Act. "I would be very surprised if it were declared unconstitutional by the Supreme Court," Hammar told CT.

"RLUIPA is for the moment secure," said The Becket Fund's Korten. "In practice, it has proven the wisdom of Congress in enacting it. Certainly in all the cases we are involved in, it is having a very salutary effect in enabling us to get local governments to recognize the religious liberties they've been threatening."

Jay Sekulow, chief counsel for the American Center for Law and Justice (ACLJ), said the Abington decision may set a RLUIPA precedent of establishing noise and traffic concerns as a "compelling interest" for blocking church projects.

"The dangerous aspect of this case is that by saying that religious use is incompatible with residential areas, it basically establishes a compelling interest in keeping churches out of these areas," he told CT. "That's a very dangerous analysis and a misunderstanding of the compelling interest doctrine."

Korten of the Becket Fund said the crucial consideration is whether the zoning regulations overstep protection of residents and become unconstitutional burdens on the free exercise of religion.

"Nobody would argue, certainly not us, that localities should not take residential concerns into consideration," Korten told CT. "Our point though is that they must also take into consideration whether they are crossing the line constitutionally. In virtually all the cases we have been involved in, they crossed that line. They do not merely regulate the establishment of churches, they constrict it to the point where it burdens or rules out the free exercise of religion."

ACLJ's Sekulow says that in many cases in which church projects are prohibited, the rights of homeowners are not the first priority. "The primary reason why religious groups are being denied the ability to open up is tax revenue," he told CT. "That's what this is all about—money."

Hammar of Church Law & Tax Report says that religious entities don't have an inherent right to build wherever they please. RLUIPA, he says, strikes a good balance between the rights of homeowners and churches: it ensures there is no bias but also does not favor the church unequivocally. Local governments are given opportunities to prove a compelling interest.

"How many of us would like to see a megachurch locate across the street from our home?" Hammar said. "I can empathize with neighbors who are upset when they hear that a large church wants to locate in their neighborhood.

"It must be acknowledged, however, that churches are different from Wal-Marts. The constitution does not protect the right to shop at discount stores. But it does guarantee the free exercise of religion. So, at the end of the day it should take a compelling case to deny a church the right to locate in residential area."

Todd Hertz is assistant online editor for Christianity Today.

Copyright © 2002 Christianity Today. Click for reprint information.

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October (Web-only) 2002, Vol. 46