Under the Watchful Eye: Free Exercise of Religion in the Home?
Katherine B. Walton March/April 2000
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The U.S. Constitution does indeed afford students the right to pray while at school, so long as it is not state-sponsored or required. Many advocates of student-led prayer have fought to ensure this right. But who is fighting to ensure the rights of those individual citizens who want to gather in private homes to pray? Why don't we hear as much about prayer in homes as we do in schools? One reason may be that most of us take for granted our right to the free exercise of religion in our homes, and see a clear need to fight for the right to freely exercise our religion in public places such as schools. It seems only logical that the same laws protecting students who gather to pray in schools also protect individuals who gather to pray in their homes. However, officials in Baltimore County didn't see it that way.
County officials believed that Seth and Lisa Pachino had violated a zoning code by operating a religious institution out of their home. On April 13, 1999, the Pachinos were issued a citation for failure to obtain a change of occupancy permit. Then at a June 15 Baltimore County code enforcement hearing, code enforcement supervisor James Thompson testified that "the citation was issued based upon the complaint of the Pachinos' neighbor, Michael Kuntz, and based upon newspaper articles concerning the activities of the Pachinos."
Mr. and Mrs. Kuntz live adjacent to Seth and Lisa Pachino in a single-family residential neighborhood in Owings Mills, Maryland. According to the Associated Press story (printed August 5, 1999, by the Capital, a local newspaper of Annapolis, Maryland), Mr. Kuntz first took his complaint to the homeowners association. "Ethel Barrish, president of the Worthington Park Homeowners Association, said Mr. Kuntz complained to the association about the [worship] services before filing his complaint with the county, but won no support from the group. 'The board believes that it is outrageous and ridiculous to try to tell someone that they can't have prayer meetings or any other kind of group meetings in their home.'" However, Mr. Kuntz did win the support of Baltimore County officials who, according to the article, fined the Pachinos $1,000 after sending a series of warning letters.
At the hearing Mr. Kuntz complained about large numbers of people attending services at the Pachinos' and gave as evidence photos showing numerous cars parked at the Pachinos' property. In addition, Mr. Kuntz presented local news articles that indicated Seth Pachino=s desire to form an Orthodox synagogue in Owings Mills. But the Pachinos' attorney, Thomas J. Gisriel, showed that the facts presented at the hearing did not prove the Pachinos were operating a religious institution. Therefore, they did not violate the Baltimore County zoning code BOCA S107.1, which requires a change of occupancy permit to allow the use of a building for religious worship.
Although the Pachinos admitted to using the newspaper articles to attract others to attend the worship services in their home, Gisriel proved that Mr. Kuntz's complaints about parking and attendance were unfounded. In a June 28 post-hearing memorandum as directed by Stanley J. Schapiro, the code official hearing the case, Gisriel wrote, "Uncontradicted testimony stated that the maximum number of attendees at the prayer meetings is 15. Usually the gathering is less. While it is the intention of the Pachinos to form a minyan, a gathering of 10 men necessary for certain prayers under the Jewish tradition, the meetings have failed to attract enough participants to form a minyan on a number of occasions. The prayer meetings are gatherings of Sabbath-observant Jews who, for religious reasons, do not drive on the Sabbath. Thus, parking for the prayer meetings is generally not an issue."
Gisriel showed how other home minyanim operate in Baltimore County and are listed in Jewish publications in the county without citation from Baltimore County zoning officials. Furthermore, he pointed out, it is understandable for Mr. Pachino to want a Jewish synagogue in Owings Mills. "It is a long walk from Owings Mills to Pikesville, where the nearest Jewish synagogue is located," remarked Gisriel. But wanting to have a synagogue near his home does not mean Mr. Pachino intended to convert his home into a religious institution. Unfortunately, at a time when more and more people are commuting to their churches or places of worship, fewer and fewer people are empathetic to such a religious practice as walking to church. And more and more residential communities are fighting to keep churches from being built in their neighborhoods (see "Not in My Neighborhood," Liberty, September/October 1999, pp. 24-27).
Although it seems ludicrous for private individuals to be questioned about religious activities in their home, the Pachinos admitted that religious worship takes place in their home. "Mr. Pachino testified that he prays three times daily in his home. He reads the Bible regularly in his home," wrote Gisriel, who went on to explain how religious services are common and expected in a Jewish dwelling (e.g., upon the death of an individual, it is customary for a Jewish family to sit shivah, which involves religious worship, in the home).
Nevertheless, religious services in the home are clearly not unique to Jewish families. Gisriel's memorandum points out that "the Christian sacrament of last rites is often administered in a home. Christians gather in their homes for prayer, including the praying of the rosary. The celebration of the Mass in a residence is a regular occurrence, especially for those unable to travel. . . . None of these activities require a change of occupancy permit to allow use of the building/dwelling for religious worship." Gisriel then cited two cases, Ballard v. Supervisor of Assessments of Baltimore County, 269 Md. 397 (1973) and Miles v. McKinney, 174 Md. 551 (1938). In the first case the court had to consider whether property used by a consecrated bishop as both his residence and a church should have tax-exempt status as a church. In the second case the court had to consider whether a property used as both a church and a residence should be considered a church in the context of determining the proper location of a gasoline station, which could not be located within 300 feet of a church. In both cases the courts ruled that the property had to be wholly or primarily used for religious purposes in order to be characterized as a church/religious institution or building used for religious worship. "The [Baltimore County] code speaks of 'buildings for religious worship,' not buildings in which religious worship takes place," wrote Gisriel.
The Pachinos' attorney also pointed out constitutional issues to be considered by the zoning administrative officials. He argued that the citation issued by the county officials violated the Pachinos' right to free exercise of religion. "The action of the county zoning enforcement officials in this matter directly regulates the exercise of religion in the home and as such is a violation of the First Amendment to the United States Constitution and Article 36 of the Maryland Declaration of Rights," he asserted.
"In relevant part, the First Amendment of the United States Constitution states: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .' Article 36 of the Maryland Declaration of Rights states in relevant part that '. . . no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State.'"
Accordingly, Gisriel concluded that "the citation issued in this matter is not the exercise of a religiously neutral regulation applied to religious activities, such as a regulation barring gatherings of a large number of people unless they comply with the fire code. The direct object of the citation and the interpretation of the county in this matter is religious worship.
"All parties conceded that other gatherings in the home, such as social parties celebrating Hanukkah or a social gathering to celebrate a child's birthday, are permissible. It is only the gatherings at the home for the purpose of religious worship which are objectionable to the county zoning enforcement officials."
Gisriel explained that the free exercise clause of the First Amendment mandates that government (1) not interfere with, burden, or deny the free exercise of a legitimate religious belief; or (2) demonstrate a state interest of sufficient magnitude to override the interest claiming protection under the free exercise clause.
It was clear that the Baltimore County officials did not prove a governmental interest that outweighed the Pachinos' First Amendment interest allowing gatherings in their home for religious worship. Gisriel noted, ""Maryland is called the Free State because of its longstanding tradition and practice of religious freedom and tolerance."
The Pachinos' attorney also established that the county officials' enforcement activity violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. "Baltimore County zoning officials treat gatherings in the home for religious worship differently from gatherings in the home for other purposes. The county acknowledged at the hearing that it does not regulate gatherings in a dwelling for social purposes. Thus, the Hanukkah party at the Pachino home was unobjectionable, as was the gathering at their home for the celebration of their daughter's first birthday. Similarly, there was no objection to the gathering at the Kuntz home for Mother's Day. Testimony indicated that gatherings for each of these celebrations generated more parking and more crowded conditions than the prayer meetings at the Pachino home."
The Pachino case is a clear example of why the Religious Liberty Protection Act, HR 1961, was passed in the U.S. House of Representatives on July 15, 1999. At the invitation of Congressman Henry Hyde, chair of the House Judiciary Committee, Clarence Hodges, the religious liberty director of the North American Division of Seventh-day Adventists, testified at the congressional hearings on this bill. Hodges spoke in favor of the bill. He emphasized the need to protect churches, church schools, and individuals from religious discrimination that is sometimes practiced by zoning boards, government employers, and other agencies.
Section 3.b.1 of the Religious Liberty Protection Act deals with the enforcement of constitutional rights and limitations on land use regulations. Parts B and C under this section are as follows:
"(B) No government shall impose or implement a land use regulation in a manner that does not treat religious assemblies or institutions on equal terms with nonreligious assemblies or institutions.
"(C) No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination."
In a phone interview, the Pachinos' attorney remarked, "I presented two options at the hearing: either (1) Baltimore County officials misinterpreted the zoning code; or (2) the zoning code was unconstitutional. According to legal documents and testimony from the Baltimore county code inspector, the following factors are considered in determining whether a religious institution is being operated:
The frequency of the religious activity.
The existence of dues-paying members and compensated employees, such as a rabbi.
The presence of school buses at the building.
Exterior evidence that the property was operating as a religious institution.
Whether the religious gathering was referred to by an organizational name.
Happily, on August 4, 1999, Schapiro, the code official hearing the case, ordered that the citation be dismissed. He wrote that "the testimony indicated that almost none of these criteria were present in this case except for reference to the gathering by an organizational name. Certainly, having an occasional prayer meeting with personal friends and acquaintances does not establish that a premise is being utilized for the operation of a religious institution. Indeed, the facts presented in this case suggest that the residence is utilized as a dwelling by residents who from time to time invite guests to join them in personal worship consistent with the central tenets of their faith. Such activity does not establish a violation of county law."
Obviously Schapiro concluded that county officials misinterpreted the zoning code law and accepted the first option that Gisriel presented. "Baltimore County zoning officials had crossed the line," said Suzanne Smith, of the American Civil Liberties Union of Maryland. She went on to say that the ACLU was watching the case but saw no need to get involved, since the Pachinos had competent counsel.
Clearly the Pachinos had an excellent attorney. But what about individuals who don't know their rights or are unable to obtain competent counsel? What if the Pachinos had complied with the series of warning letters from the Baltimore County officials?
Certainly the Pachinos are not the only individuals who have incorrectly received citations from Baltimore County officials. According to the Associated Press article mentioned earlier, county officials said that the law was frequently applied when homes were used for regular worship services.
Fortunately, the religious liberty bill, HR 1961, reaffirms the religious protections provided by the First and the Fourteenth Amendments of the U.S. Constitution and can aid local governing bodies as they must consider or rule upon constitutional issues raised in cases involving religious institutions and their practices. (As of this writing, the bill must still be ratified by the Senate and pass scrutiny by the Supreme Court. A previous bill, the Religious Freedom Restoration Act, was deemed unconstitutional by the Supreme Court.)
After reviewing this case and the recently passed bill, HR 1961, it seems that zoning laws and the enforcement of those laws need to be reevaluated. This case not only highlights possible abuses of zoning laws across the United States (including Baltimore County), but reminds us that we should never take for granted any of our constitutional rights. Certainly many Christians in the United States never give a second thought as to whether or not they can have a Bible study group or a group prayer meeting in their home. But after incidents such as this, one can't help thinking twice and wondering, "Will I be the next victim of misinterpreted laws?" or "Will my neighbors report my religious activities to authorities and gather evidence against me?"
On the other hand, it is easy to understand why Baltimore County officials might misinterpret the zoning code. The phrase "for religious worship" can be misconstrued. The first of the five criteria used to determine if a religious institution is being operated is ambiguous. In determining the frequency of the religious activity, one must first decide what they consider to be frequent. Obviously there will be different opinions. Some might think once a week is frequent. Or, as indicated in the article, some might view biweekly religious meetings as a violation of the zoning code, simply because they are regularly scheduled.
Katherine B. Walton is a freelance journalist with a longtime interest in religious liberty. She writes from Annapolis, Maryland.