By Ken Howard

Part 1 – The Problem: An Increasingly Complicated and Adversarial Relationship

Part of the increasing uncertain environment faith-based communities and organizations are facing is their relationship with local government. Faith communities and local governments once saw each other as natural allies. But as local governments face increasing pressure to find new sources of revenue for essential services, they are beginning to see faith communities as competitors. After all, every new house of worship built takes another piece of property off the property tax roles.

Suffice it to say that the relationship between faith communities and local government is becoming much more complicated and frequently adversarial. If leaders are to help their faith communities survive and thrive in this increasing complex environment, they must understand the dynamics at work:

A Complex Relationship

The relationship between local governments and faith communities is becoming a complex network of shared and competing interests. In some areas they are natural allies, while in other areas they are natural competitors, while in still other areas they are a little of both.

Allies in Seeking the Common Good

In seeking the common good of the community, local governments and faith communities are natural allies. Both are called to serve the poor in their midst: feeding the hungry, clothing the needy, and housing the homeless. Both are called to promote civility, prevent violence, and resolve conflict. Both are called to care for creation: balancing the needs of human commerce and the health of the natural world.

Competitors on Taxation

In tax policy, local governments and faith communities are natural adversaries. In order to exist, provide basic services, and carry out their responsibilities to their communities, local governments rely primarily on property tax revenue. Meanwhile, by virtue of long-standing social contract, because of the services they provide communities in which they operate, and in deference to the First Amendment right of the free exercise of religion, since the founding of our country faith communities have been granted property tax exemption from local governments. This exemption from property taxation has traditionally covered the buildings designated as their houses of worship, as well as the property on which the buildings resided, in recognition of the fact that religious activity involved much more than simply worship and was not exclusively limited to the official worship structures. Given that the overwhelming majority of faith communities rely almost exclusively upon the uncompelled generosity of their members for their support, many would find it difficult or impossible to survive a loss of (or decrease in) property tax exemption, and those that did survive would find it difficult to continue to provide the very same human services on which local governments have come to depend. Meanwhile, local governments, increasingly strapped for cash and realizing that every property tax exemption eats into their tax revenue, feel intense pressure to roll back property tax exemptions already granted or to manipulate their land use policies and procedures in order to make it difficult for new faith communities to obtain or build on property in the first place. Clearly, when it comes to tax policy, the vested interests of local government and faith communities are in direct opposition. It was to address this competitive advantage of local governments over faith communities that congress passed the Religious Land Use and Institutionalized Persons Act of 2000, which forbade local governments from placing undue burdens on faith communities via land use policies and practices without a compelling public interest, and stated that maintaining their property tax base could not be considered a compelling interest under the statute.

On Land Use Policy… A Little Of Both

In land use policy, local governments and faith communities are a little of both. Local governments and faith communities are allies in some aspects of land use policy. Faith communities often support land use planning and zoning that maintain green areas, set aside agricultural and forest protection zones, and promote reforestation. They also support building construction and occupancy regulations that handicapped accessible and keep people safe. It is the manner in which in which local governments implement land use policy that frequently – and often inadvertently – turns the relationship between them and their local faith communities adversarial. Afforestation requirements (in which new forested areas are must be planted with new development to make up for forested areas previous lost to older development), especially when done in an all-or-nothing manner, may constitute an insurmountable burden for many smaller congregations. Zoning decisions may be used to limit where faith communities may locate, resulting in a higher percentage of faith communities operating out of rented space, thus maintaining more taxable property.

Conflicts in Local and Federal Law

Here’s  where things really get complicated. Federal Law is clear. According to the Land Use and Institutionalized Persons Act of 2000 (RLUIPA), local government land use policies may not impose a “significant burden” on faith communities without a “compelling public interest.” The law offers a further clarification that maintaining its property tax base is not be considered a compelling public interest under the law.

Simple. Right?

Well, yes… Except that local governments don’t always see it that way. Rather, they tend to think that as long as they are not actively discriminating (that is, showing a preference for one religion over another) that they are safe. As one local government official once told be, “But we’re not discriminating… We require the same things of faith communities as we do any other business.” And that’s true, but in treating non-profit faith communities as though they were commercial business, local officials are creating a systemic burden on all religious expression. When a faith community has to pay over $800,00 in costs directly related to land use policies – permitting, afforestation, widening highways and replacing culverts, installing neighborhood sidewalks, and other so-called “proffers” – to build a 1.3 million dollar worship center (as mine did), as well as enduring years of delays, construction of a place of worship becomes cost prohibitive, driving many prospective faith communities out of “business.”

So why not just take the local government to court?

Well…that’s what makes it so complicated.

I mean, you almost certainly will win your case in federal court… The problem is surviving the costly and lengthy battle it’s going to take to get there, fighting your way all the way up through largely unsympathetic local and state courts. It’s literally going to cost your faith community hundreds of thousands of dollars and years of continuing delay to get there. And unless your faith community is a megachurch and/or very wealthy and/or has a lot of constitutional lawyers waiting in the wings for pro bono work and/or a legal foundation willing to foot the bill, you are unlikely to survive long enough to have your day in federal court, let alone do your legal victory dance in the end zone.

And speaking of lawyers, legal fees, suing the government, and victory dances, most faith communities just aren’t into that sort of thing. Members give their money for things like feeding the hungry, clothing the poor, and providing for worship, spiritual formation, and fellowship, not suing people.

Nor do clergy want to take that route, either. They got into ministry to serve their congregation and community, to seek justice, and bring about the beloved community of God, not to fight legal battles over land use policies and property taxes. And they know that once you start down that road, there is is no turning back. Suing people, even governments… perhaps especially governments, is going to make your congregation a lot of enemies and will undermine all of the good work you have done in partnership with local government.

Doesn’t sound promising, does it?

Yet there may yet be room for hope.

In Montgomery County, where my congregation is located, and where I am a member of the Executive Committee of the Faith Community Advisory Council and the co-chair of its Religious Land Use Working Group, we are trying something new. After nearly two years of preparation, we have arranged with the U.S. Department of Justice to hold a forum at which the Special Counsel for Religious Discrimination will education faith leaders to their congregations’ rights and local governments’ responsibilities under RLUIPA. We hope this approach can become a viable middle way between spending years in court on the one hand and giving in to unjust government policies on the other.

This forum will be happening soon… tomorrow, in fact. So in my next post, I can tell you more about how we got here and how well this approach is working out.

Coming Soon…
Local Governments and Faith Communities – Part 2: A Proactive Solution?