Strengthening Constitutional Self-Government

No Left Turns

Churches and the environment

It will be interesting to watch what happens in Montgomery County, Maryland as churches seek to take advantage of their entitlement to build in the suburban county’s "agricultural reserve," virtually its last affordable real estate. For the most part, Montomery County (which sits on the northwest border of Washington, D.C.) si densely developed, though roughly one-third has intentionally been left in agriculture (with the aforementioned exemption for churches).

Now, a number of growing and rather large churches are seeking to build sanctuaries and campuses there. These same churches likely couldn’t afford to build elsewhere in the county and, given their size and the traffic they would generate, wouldn’t necessarily be welcomed with open arms in or near residential neighborhoods. (This, by the way was one of the issues that led to the passage of the Religious Land Use and Institutionalized Persons Act of 2000.) In this case, however, the churches are’t facing NIMBYs but rather NIMARs (Not In My Agricultural Reserve)--environmentalists and lovers of green spaces. That some of the congregations that are seeking to build are African-American adds yet another complicating dimension to the issue.

As I said, it will be interesting to see how the county’s elected officials (mostly Democrats, I would imagine) deal with this hot potato.

Discussions - 5 Comments

FWIW, upper Montgomery County (AKA "Monkey County" or MoCo as we natives sometimes call it), where a lot of this "greenspace" is located, is not as uniformly Democratic as the downcounty areas. In fact, IIRC, there may even be a GOP state delegate or two sent to Annapolis by the area.

That said, of course the county as a whole is thoroughly dominated by Democratic officials and voters, so we’ll see how this plays out. There are fast-growing Hispanic Protestant congregations in the county as well, and one wonders if they’ll become drawn into this issue as well. A few years ago, some of their pastors gave the liberal-dominated school board a bit of a shock when the board tried to pass some measure having to do with gay causes (I forget just what the measure was, exactly) and found the opposition being spearheaded by a bunch of vocal Latino churches whose congregants are not wealthy enough to opt out of the county schools and who emphatically did not want this agenda being pushed on their kids. Again, IIRC, the board wound up backing and filling in pretty short order, and it members seem pretty flustered as they hadn’t expected minorities who don’t conform to liberal stereotypes actually to exist, much less be assertive and well organized.


The statute you refer to limits governments more than the 1st amendment does (I am assuming since there would be no reason to have the law if it did not). The federal government claims authority for this statute on the basis of the spending clause and the commerce clause. I do not suppose there are any conservatives principled enough to denounce this statute?

I grant that the bill is consistent with post 1937 (esp post Civil Rights Act of 1964) commerce clause jurisprudence, but I think originalists ought to admit churches have very little to do with commerce as understood at the founding.


The issue in Montgomery County isn’t RLUIPA-related, since it’s the County’s own rules that would seem to exempt churches from the agricultural reserve exclusion. I mentioned RLUIPA just to exemplify the kinds of conflicts that arise between churches and land-use regulators.

I realize that I’m dodging your big theoretical point, but in the world in which the 14th Amendment is said to incorporate the 1st Amendment, I’m on the side of religious freedom and the "compelling state interest" test. If we could roll back the clock and all the First Amendment decisions in the aftermath of incorporation, including all those that overturned state attempts to assist religion, I might be with you. But those deeply flawed decisions have created a culture suspicious of state aid, so that my fear is that a legal return to the status quo ante Cantwell (is that the incorporation case for the First Amendment religion clauses?) would mean no aid and no exemption, rather than differing sorts of accommodation regimes, varying from state to state.


Your argument confuses me. You claim that modern 1st amendment jurisprudence has made people and courts suspicious of State government aid towards religion, although it might be legitimate. In order to clear this hurdle, you claim we need federal government aid towards religion. I fail to see how this solves any 1st amendment theoretical problem. Can you clarify your position? The only practical benefit that might be derived from this law is that it will be subject to fewer lawsuits than 50 different state laws concerning the issue, and it forces States not inclined to protect religious uses for land, protect those uses.

I would favor States dealing with the matter as they see fit. States have traditionally dealt with zoning, eminent domain, and other land use issues. I see no reason for the federal government to start encroaching in any of these areas. I have no faith that people in Washington, D.C., know how to use a vacant parcel or building better than the local zoning board.

A consistent "originalism" would seem to hold that the First Amendment religion clauses restrict only Congressional (or, more broadly, federal) action, not state action. If the 14th Amendment is read narrowly (or, if you will, faithfully), it doesn’t obviously incorporate the Bill of Rights, applying it to the states, which in most (if not all) cases have their own "establishment" and "free exercise" constitutional provisions. I could live with, and, indeed, embrace, this, if we could at the same time erase the last sixty or so years of history and the way in which the Supreme Court’s First Amendment decisions have affected the culture.

What we have now is a situation in which many accommodations are called (following Sandra Day O’Connor)impermissible "endorsements," as well as one in which many failures to accommodate are justified because they are said to follow from neutral and generally applicable laws (following Antonin Scalia in Smith). In some cases, the state may not accommodate (or aid); in others, it need not accommodate.

I fear that, if we abandon the Congressional attempt through RFRA and RLUIPA, to restore the "compelling state interest" test in free exercise cases, we weaken the protection of religious liberty on the one side, while leaving intact a certain hostility to "endorsement"-style accommodation on the other, not just as a matter of law, but rather as a matter of public sentiment (or rather elite legal sentiment).

Stated another way, for all practical purposes, we’re not going to return to a situation in which the Bill of Rights is understood to apply only to the federal government and in which the 14th Amendment is going to be read properly (with full force being given, for example, to the "privileges or immunities" clause). Under those circumstances, I’d rather have a regime that maximally accommodates religious liberty.

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