Unlawful Assembly
Deborah Baxtrom March/April 2003
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Illustrations by Paul Vismara
A Christian family living in the Soviet Union sometime in the mid-twentieth century gathers with a few close friends to take part in an illicit activity—Bible study and prayer. The door bursts open, and the KGB storms in. The frightened group is herded off for interrogation, possibly worse. This was a scene that characterized the continuing Soviet repression of religion.
Such a scenario could never happen in the U.S., of course, but a less dramatic, far more subtle form of religious discrimination may be taking place in American society, enforced not with guns, but with zoning laws.
In March of 1998 Diane Reiter began holding Bible study meetings every Thursday evening in her southeast Denver home. Between nine and 15 Christian women would gather at the Reiter residence for a potluck dinner, then pray and study the Bible or other Christian texts for about two to three hours. The women often carpooled, and about 10 vehicles would be parked outside the Reiters' home during an average gathering. Although the cars were legally parked, neighbors complained that the meetings were causing parking problems in the area. The Denver zoning administration stepped in and issued an order stating that the Reiters were violating a city ordinance that prohibited more than one "prayer meeting" at a private residence per month. The couple was told that if they allowed their friends to visit their home more than once each month for the purposes of prayer and fellowship, they could face criminal sanctions.
The Reiters appealed their case to the zoning board and lost. They eventually filed suit in federal court, alleging that the zoning order violates their right to free speech and peaceable assembly.
The Reiters' attorney, Jay Sekulow, of the American Center for Law and Justice (ACLJ), called the Denver ordinance "an example of religious hostility at its worst. It's an unprecedented attack on religious freedom. The idea that a zoning authority can restrict the number of Bible studies at a private home is incredible."
Denver zoning administrator Kent Strapko didn't seem to find the order incredible or even unusual. He claimed that the Reiters are not victims of religious persecution, but are simply being asked to comply with a once-a-month rule that applies to all gatherings, including book clubs and parties. But the zoning order received by the Reiters specifically states, "Prayer meetings [italics supplied] are [being] held more than once per month in a single-unit dwelling . . . in violation of cited section." The order does not mention other types of gatherings.
Perhaps more significantly, Diane Reiter stated that when she spoke with the director of the zoning board, Janice Tilden, she was told that if she had been holding a weekly "book club" in her home, rather than a "prayer meeting," it would probably have been "no problem."
The Reiters are hardly alone in their struggle. In fact, the number of lawsuits filed by religious groups and individuals against U.S. cities because of restrictive and possibly discriminatory zoning laws has been steadily increasing. In an effort to aid religion in the struggle against restrictive zoning ordinances, President Bill Clinton signed the Religious Land Use and Institutionalized Person Act (RLUIPA) into law in September 2000.
RLUIPA states, "No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest."
Attorneys for the Reiters state in their suit that "the city of Denver burdens [the free exercise of religion as a fundamental right] by flatly prohibiting [the Reiters] from exercising their faith through communal prayer more than once a month. The city offers no compelling interest to justify that prohibition. In fact, the only interest advanced to justify the discriminatory order is that some neighbors have had a negative reaction to the small group meeting. Disgruntled neighbors, however, do not constitute a 'compelling governmental interest.'"
While the Reiters acknowledged that the city has an interest in regulating traffic and parking in residential neighborhoods, their suit argued that the "city has no compelling interest in limiting the peaceable assembly of a few individuals within a private residence." According to Sekulow, "[the zoning order] is an abuse of the First Amendment."
In regard to the city's legitimate interests—the regulation of traffic and parking—there appears to be a double standard in the Reiters' case. Several commercial establishments are located near their residence, and patrons, visitors, and tradespeople are free to park on the street where the Reiters live. There is also a commercial tennis and pool club about a block away that "treats the street on which [the Reiters] reside as an overflow parking lot on almost every weekend during summer months." Curiously, no zoning order has been issued against this club or any other nearby commercial establishment.
The Reiters made every effort to avoid confrontation with their neighbors. No one was able to claim that their gatherings were disruptive—loud music was not played, and noisy conversations did not filter into the streets. Yet the zoning authority singled them out even though their meetings were quiet, orderly affairs.
As for their visitors' vehicles, the women parked their cars within the legal public right-of-way and did not block the driveways of other residents. When Diane Reiter was confronted by a neighbor about the number of cars parked on the block during a meeting, she immediately asked her guests not to park near that neighbor's house. A second neighbor later complained, and again Mrs. Reiter requested that her friends avoid parking near the second neighbor's home as well. When
the complaints continued, she finally asked her guests to park at the tennis and pool club in order to avoid the neighborhood streets altogether. Generally her guests complied. Nevertheless, the zoning authority soon became involved.
In October of 1998 a city zoning specialist wrote to the Reiters to demand a "routine zoning inspection" in regard to the prayer meetings being conducted in their home. Mrs. Reiter explained that several different activities took place during her gatherings, including religious fellowship, study, and a potluck meal, and that prayer was just one aspect of the meetings. She also explained that though her husband is an assistant pastor for a nondenominational Christian center, her meetings were unrelated to his job. But the city persisted in labeling the gatherings "prayer meetings" and ordered the Reiters to discontinue all such meetings beyond one per month.
"Whether discrimination is present or not must remain an open question for the moment," the Reiter suit states. "However, there is no doubt that the order is invalid because this vague and arbitrary application of the city's power cuts too close to the heart of rights guaranteed by the First Amendment."
Attorneys for the Reiters believe that the zoning authority's regulations not only violate RLUIPA, but also Fourteenth Amendment due process rights of private citizens. "The order, and the underlying zoning regulation that prohibits private individuals from gathering to pray in a private home more often than once a month, are invalid because they are vague in definition and arbitrarily applied."
Zoning administrator Strapko has stated that a former administrator was asked to ban all meetings, but instead decided that one meeting per month was permissible—a decision that could easily be considered "arbitrary." Yet Strapko maintains he does not act on the 10-year-old ordinance prohibiting "excess" prayer meetings unless neighbors file complaints.
But what about the vague criteria for defining what constitutes a "prayer meeting"? The Reiters cannot know when an ordinary social gathering in their home might violate the zoning order because communal prayer is such a large part of their lives. Strapko claimed to be in possession of written records that would document the intent and scope of the determination upon which he rested his decision, but when the Reiters' attorneys repeatedly requested these records, Strapko failed to produce them.
Since the Denver zoning authority gave no clear definition of what comprises a prayer meeting, the Reiter suit holds that the zoning order is unconstitutionally vague. It states, "Simply put, no one with ordinary intelligence knows when a social gathering in their home may suddenly evolve from a permissible activity into a forbidden 'prayer meeting.'"
According to Grayned v. City of Rockford (1972): "Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly . . . . A vague law impermissibly delegates. . . basic policy matters to [government officials] on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications."
The Reiters claimed that they had been denied the equal protection of the laws. "If the city is to maintain that what [the Reiters] are doing is a 'prayer meeting,' then it must admit that its order is directed precisely at religious speech and that it burdens the fundamental rights of free speech, free association, and free exercise of religion."
In addition, since the Reiters' home meetings are protected by the First Amendment, "there is no need in this situation to eviscerate First Amendment rights that protect private speech within a private home. If, as those who petitioned in opposition alleged, there are violations of parking regulations, then the remedy is to enforce the parking regulations, not to suppress free speech."
Attorneys for the ACLJ also believe that the zoning order violates the Reiters' free exercise rights. "Prohibiting 'prayer meetings' is nothing less than an impermissible content-based ban. 'It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys' (Rosenberger v. Rector and Visitors of University of Virginia [1995]. . . . 'If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read. . . . Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds' (Stanley v. Georgia [1969]."
Recent rulings in similar cases seem to indicate that the law may ultimately agree with
the arguments set forth in the Reiter suit, in part because of limitations imposed on cities through the Religious Land Use and Institutionalized Persons Act.
One dispute in Owings Mills, Maryland, involved an Orthodox Jewish couple that held monthly prayer services in their home for about 10 Jewish men. Once again, neighbors complained, and Seth and Lisa Pachino were fined ,000 and ordered to halt the meetings. The Pachinos won their case on appeal. A Baltimore County zoning code official said there was insufficient proof to indicate that the couple was operating a religious institution.
And in Connecticut, a federal judge ordered New Milford town officials to allow members of the Murphy family to hold prayer meetings in their home until their lawsuit against the town was settled. The family had been barred from holding prayer meetings by a city zoning order after neighbors complained about traffic problems in the area.
Vincent P. McCarthy, attorney for the Murphys and senior Northeast counsel for the American Center for Law and Justice, said, "The judge based her injunction on RLUIPA, and said that the town hadn't shown a sufficient reason for prohibiting these prayer meetings; that there's no legitimate purpose that's served under the zoning regulation. RLUIPA has changed things by requiring cities to show a compelling state interest in order to justify any of its regulations when those regulations burden religious beliefs."
In the Murphy case, U.S. Magistrate Judge Holly B. Fitzsimmons did indeed cite the Religious Land Use and Institutionalized Person Act, as well as the First Amendment, in her ruling. Judge Fitzsimmons appeared to be swayed by the testimony of individuals who stated they were intimidated by the zoning order. In her ruling, Fitzsimmons wrote, "The court finds that the allegation that people are afraid to attend a prayer meeting because they fear being arrested is a substantial burden that the defendants have imposed on the prayer group participants."
Small-group religious gatherings in one's home would seem to be part of our religious heritage and within the rights of all American citizens—without the threat of intimidation by governmental forces. We cannot allow zoning laws or any form of local regulation to be invoked in a prejudicial way to restrict religious activities.
Deborah Baxtrom is a freelance writer living in Los Angeles, California. She has a keen interest in religious liberty and has been a regular contributor to Liberty.