Photo of a church in Iceland by Ludo-Photos (CCO)
A virtual conference sponsored by Canopy Forum and the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners who will examine issues facing religious congregations, neighborhoods, towns, and cities where houses of worship are falling into disrepair or vacancy. View selected videos and browse all essays here.
“Pluralism and the Future of Religious Property”
Whittney Barth
Renewed attention is being paid to houses of worship that are for sale in cities and towns across the country, from the Carolinas to Atlanta, as religious communities grapple with what comes next — both for the people who gather there and for the physical space they have inhabited, sometimes for generations. With the COVID-19 pandemic and its ongoing impact on religious service attendance as part of this mix, circumstances that communities across the country have confronted for some time are now exacerbated and have become all the more far-reaching, underscoring the dynamism of the country’s religious landscape. Local officials, too, are trying to make sense of what these new realities mean for municipalities.
In her 2001 book, A New Religious America: How a “Christian” Country Became the World’s Most Religiously Diverse Nation, Harvard professor Diana Eck vividly maps the changing religious landscape of the U.S. — a result of increased immigration following changes to the law in 1965. In particular, Eck’s work highlights the growth of Muslim, Hindu, Buddhist, and Sikh communities across the United States. Over the years, these communities established themselves in unexpected places, like a retired Friendly’s restaurant turned mandir in Holbrook, Massachusetts. Others, like the Sikh community in Niskayuna, New York, have purchased property from different religious communities, often a church. Sometimes these efforts to give a house of worship new life are met with vocal and hostile opposition from neighbors and government officials alike, as I will elaborate on below. This essay argues that pluralism, as defined by Eck, can be a useful normative and narrative framework for religious groups, local officials, and broader communities encountering the sale of religious property. Eck describes pluralism as the “energetic engagement with diversity,” “active seeking of understanding across lines of difference,” an “encounter of commitments,” and “based on dialogue.” Employed in this way, pluralism both stands alongside law as a tool in the toolbox and informs it.
When animus toward religion seeps into government decision-making about land use, religious groups are protected by the First Amendment of the U.S. Constitution and by federal law. In 2000, a year before Eck published A New Religious America, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a landmark piece of legislation that sought, in part, to protect the religious liberty of individuals and organizations from substantially burdensome land use regulation. RLUIPA contains several provisions prohibiting different types of discriminatory land use regulation, including a provision that requires “equal treatment” of religious and nonreligious uses, and this essay is concerned primarily with the nondiscrimination provision that prohibits discrimination on the basis of “religion or religious denomination.” Part of the Congressional record includes a joint statement by Senators Orrin Hatch (R-UT) and Edward Kennedy (D-MA) describing subtle and overt discrimination in zoning, often targeting “new, small, or unfamiliar” religious communities and sometimes with explicit references to “race or religion” as a reason for exclusion. In a 2012 UNC law review article, veteran government civil rights litigator Eric Treene noted that churches and synagogues were the types of spaces most frequently referenced in the record. In the decades following September 11, 2001, RLUIPA became an important tool for challenging anti-Muslim backlash playing out at the local level.
In his remarks upon signing RLUIPA into law, President Bill Clinton thanked the Coalition for the Free Exercise of Religion “and the civil rights community for the central role they played” in crafting the legislation. “Their work in passing this legislation once again demonstrates that people of all political bents and faiths can work together for a common purpose that benefits all Americans,” he continued. Melissa Rogers, General Counsel for the Baptist Joint Committee on Public Affairs, highlighted the diversity of that coalition in a July 14, 2000 letter submitted into the Congressional record on behalf of the Coalition for the Free Exercise of Religion in which she names the American Civil Liberties Union, the Christian Legal Society, Americans United for Separation of Church and State, the Family Research Council, People For the American Way, and the National Association for Evangelicals all as RLUIPA supporters. Not included in the letter but also in the record is evidence of support from the Union of Orthodox Congregations and the American Jewish Committee.
RLUIPA was not the first major religious freedom law enacted during President Clinton’s tenure. In 1993, the Religious Freedom Restoration Act (RFRA), was passed with the stated purpose of restoring the “compelling interest test” for determining whether government action could substantially burden an individual or organization’s religious exercise. RFRA was a direct response to the U.S. Supreme Court’s decision in Employment Division v. Smith that held that the Constitution did permit religious exercise to be burdened under a neutrally applicable law. In his remarks at the signing of RFRA into law, President Clinton also thanked the Coalition for the Free Exercise of Religion and echoed Vice President Gore’s acknowledgment of the “broad coalition of Americans [that] came together to make this bill a reality.” After noting the bill was passed on a voice vote because it had such high numbers of support in the House, he remarked
I’m told that, as many of the people in the coalition worked together across ideological and religious lines, some new friendships were formed and some new trust was established, which shows, I suppose, that the power of God is such that even in the legislative process miracles can happen.
A few years later, in City of Boerne v. Flores, the U.S. Supreme Court declared RFRA unconstitutional as applied to the states, leading to the legislative moment that produced its “sister statute,” RLUIPA. While trust and collaboration among the diverse coalition that lobbied for RFRA began “fraying” as early as the City of Boerne decision, both have plummeted precipitously in recent years as RFRA has become a flashpoint in the “conscience wars.”
RLUIPA, on the other hand, continues to enjoy bipartisan support (although, to be sure, some groups have expressed misgivings from the start). Why has RLUIPA not shared RFRA’s fate? To start, RLUIPA is more targeted in its purview; as Baptist Joint Committee Executive Director Amanda Tyler and former Director of the White House Office of Faith-Based and Neighborhood Partnerships Melissa Rogers observed in their essay marking the statute’s twentieth anniversary: “Congress did not address every religious liberty problem with RLUIPA.” This naturally provides less opportunity for innovation and expansion. Tyler and Rogers also observe that the U.S. Department of Justice has been responsive to the needs of minority religious communities that face “a disproportionate level of discrimination in zoning matters,” according to a 2016 Justice Department report. Further, RLUIPA was explicitly tailored not to interfere with other civil rights statutes (unlike the earlier-drafted but never-passed Religious Liberty Protection Act that did not contain such protections). I also suspect that support for RLUIPA is a result not just of its self-imposed limits, but also from the fact that it recognizes that having a place is important and it attempts to curb animus-infused efforts to make others seem out of place (local, grassroots interfaith efforts can also combat animus in this way, as I began to sketch out in this 2015 essay in the Journal of Interreligious Studies).
Controversies over the establishment of certain houses of worship are not new. In 2000, just months before RLUIPA’s passage, controversy erupted in Palos Heights, Illinois, when word spread that a local Muslim community intended to purchase a church building belonging to the Reformed Christian community in town. Although the building had been up for sale for two years, it was not until the Muslim community’s intention to purchase was made known that two city council members led a campaign to convince the city to purchase the property for a recreation center. Amid vocal opposition and anti-Muslim public statements, the proposal was made to offer the Muslim community $200,000 to walk away from the deal, a proposal the mayor — appalled by the controversy — vetoed.
A 2010 report from the Institute for Social Policy and Understanding describes opposition to the building of mosques since the 1980s, often resulting in Muslim communities spending years “searching for developments before finally succeeding … [it’s also] not unusual for them to settle for parcels that were undesirable but more likely to be approved [by planning and zoning boards], or to make considerable compromises in their original plans” due to opposition. The report describes a shift in the expression of that opposition, visible by 2010, wherein the controversies over mosque-building that had previously been largely confined to local, public sessions “and within the framework of public debate,” had given way to “vocal and organized opposition in the streets with placards and bullhorns, shaping public opinion through national media coverage.”
Although RLUIPA is an important tool for protecting religious groups from discrimination, challenges remain. Outcomes are uncertain with litigation. Once in court, plaintiffs face a host of legal obstacles to surmount, not to mention that federal circuit courts are inconsistent in analyzing RLUIPA claims. There are also financial concerns. A Sikh community in Oyster Bay, New York, filed suit against the town in 2016, alleging that for years, the town created roadblocks as it sought to build its new gurdwara, purportedly influenced by the animus toward Sikhs expressed by some of the temple’s neighbors. The parties settled later that same year, with the temple’s attorney citing legal fees as a burden that contributed to the Sikh community’s decision to settle. Protracted legal challenges also cause groups to run out of money before their new house of worship is completed, as was the case for a church in South Hackensack, New Jersey which, at the time of a 2017 profile in The Atlantic, continued to worship in unfinished space.
The late Yale University Law Professor Robert Cover wrote that “[o]nce understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.” That world (or nomos, as he called it), is normative and those very narratives not only imbue law with meaning but shape the world(s) in which we live. To find those meanings, different sources might be consulted. For example, social and political debates leading to a bill’s proposal and adoption or executive statements when signing a bill into law offer windows into the moral, social, and legal imaginations of the individuals and groups involved. Even photographs taken at the signing lend weight to particular narratives about who had a seat at the table. Over time, the effects of a law — what it prohibits, protects, and encourages — can also be a source for its narrative and, by extension, the normative world that it builds.
From her work mapping the religious landscape of America, Diana Eck articulates a vision for religious pluralism that is comprised of four key components: 1) pluralism is not diversity alone, but the energetic engagement with diversity; 2) pluralism is not just tolerance, but the active seeking of understanding across lines of difference; 3) pluralism is not relativism, but the encounter of commitments; and 4) pluralism is based on dialogue. In this context, pluralism speaks to the civic, rather than theological domain, and is “not primarily about common ground” but takes “the reality of difference as its starting point.” For Eck, pluralism is at once a normative and descriptive enterprise — or, put in Cover’s terms, pluralism is crucial as both nomos and narrative.
The crafting and passage of RLUIPA itself arguably fits within this framework of pluralism. And while the passage of RLUIPA held — and continues to hold — great promise, it should be seen as one tool in the toolbox of civic life. As religious communities grapple with the future of the physical spaces and potential buyers may be new neighbors or long-established but previously less visible groups, local officials and community members might turn to Eck’s framework of pluralism as instructive for building and maintaining partnerships around physical space that might otherwise be considered to be largely within the private sphere of a particular religious community.
Whittney Barth is executive director of the Center for the Study of Law and Religion at Emory University and Charlotte McDaniel Scholar. She holds a JD from the University of Chicago Law School, MDiv from Harvard Divinity School, and BA from Miami University. This essay is part of a larger project celebrating the scholarly achievements of Professor Diana L. Eck. Views expressed are the author’s own and do not necessarily reflect those of CSLR.
Recommended Citation
Barth, Whittney. “Pluralism and the Future of Religious Property.” Canopy Forum, May 3, 2023. https://canopyforum.org/2023/05/03/pluralism-and-the-future-of-religious-property/.
