Recently, Jerry Falwell Ministries and Liberty Counsel merged.
Liberty Counsel’s founder, Mathew Staver, and my son, Jerry Falwell Jr.,
now serve as co-general counsel of Liberty Counsel. I asked these two
young constitutional attorneys, Mat and Jerry Jr., to write a commentary
on an exciting new federal zoning law that was recently passed by the
U.S. Congress and signed into law. Every pastor and church leader in
America should read Mat and Jerry’s following comments on this important
topic. Their article follows.
On Sept. 22, 2000, the Religious Land Use and Institutionalized
Persons Act of 2000 was signed into law. The act will be a powerful
tool for religious liberty. This law received unprecedented support
from both liberal and conservative religious organizations and was
overwhelmingly supported by both Democrats and Republicans. The law
prohibits the government from discriminating against religious
institutions (including places of worship) in land-use regulations, such
as zoning, and also protects the religious rights of prisoners. Zoning
has long been a threat to religious liberty. Zoning laws effectively
give government the power to regulate religion and religious
institutions. Oftentimes these zoning laws have been used to create
religion-free zones. At other times, zoning laws have been used to
prohibit churches from expanding their ministry.
For example, in Homestead, Fla., the City passed a law which
prohibited religious institutions from locating in the downtown area for
more than two years. At the end of the two-year period, the religious
institution was forced to leave the area. Incredibly, the location
which was used by the religious institution could never again be used by
any other religious organization. The law therefore created a
religion-free zone. The longer the law remained in effect, the more
religion-free zones occurred within the downtown area.
The southern Florida town of Surfside passed a law prohibiting
churches and synagogues from locating within the city limits. Members
of an orthodox Jewish synagogue filed suit to obtain the right to build
a synagogue within the city. Orthodox Jews do not travel on the
Sabbath. Thus, Orthodox Jews must live within walking distance of the
nearest synagogue. Despite the substantial burden on the Jewish
congregants, the city refused to repeal the law and the court sided with
the city. This new religious land-use law will reverse this decision.
In Oregon, one city allowed a church to meet only if its membership
did not exceed one hundred people. The city imposed additional
restrictions stating that the church could not perform weddings or
funerals on Saturday and must cease any church activity by 4:00 p.m. on
Sunday. In Texas, a Catholic church sought to add a structure to its
existing building in order to minister more effectively to the
community. The church was denied the right to build on its own property
because it was located within a historical landmark district.
Many churches have been denied the right to carry out their ministry
of feeding the hungry and clothing the homeless. In Wisconsin and
Georgia, two couples received zoning citations threatening sanctions if
they did not immediately cease conducting Bible study and prayer
meetings in their homes. In Denver, Colo., a couple was told by city
zoning officials that they could meet only one time per month for a
prayer meeting in their private home because more frequent meetings were
banned by the city zoning code.
The power to zone is the power to destroy. The power to grant a
license to conduct worship and the power to withhold that license has
often been used to stifle religious freedom.
As a result of these ridiculous zoning decisions throughout the
country, a wide array of religious institutions supported this new act.
The new Religious Land Use and Institutionalized Persons Act applies to
any case in which 1) a substantial burden is imposed on a program or
activity that receives federal financial assistance, or 2) the
substantial burden affects, or the removal of that substantial burden
would affect, interstate commerce, or 3) the substantial burden is
imposed in the implementation of a land-use regulation such as zoning.
The law defines a “program or activity” to include all of the
operations of any government or private entity that receives federal
funding. The term “government” under the act includes a state, county,
municipality, or any other governmental entity created under the
authority of a state, or any branch, department, agency,
instrumentality, or any official action on behalf of one of these
entities, or acting under authority of state law. The term “government”
also includes the United States and any of its branches or any person
acting under federal authority. The act therefore encompasses anything
that you would normally consider to be government.
The law is very significant for several reasons. First, the act
applies to religious institutions — even if the same government
restriction applies equally to secular institutions — if the government
restriction imposes a substantial burden on the religious institution.
Second, the law applies in any land use or zoning regulation. Third,
the law also applies to any incarcerated prisoner, whether in state or
federal prison, if the program or activity receives federal funding.
Under the Religious Land Use law, the government must, at a minimum,
treat religious institutions as equal to secular institutions. Applying
this to the state of Virginia would mean that the Virginia law
restricting church ownership of property will no longer withstand
challenge. The state of Virginia has an ancient law that prohibits
churches from owning more than a specified number of acres of real
estate. No similar restriction is imposed on secular property holders.
Churches in Virginia have been forced to create separate corporations
in order to hold additional land in excess of the allowed acreage. The
problem with this approach is that it is discriminatory because the
churches must pay taxes on any property over the allowed limit.
Moreover, Virginia law prohibits a church from selling its property
without court approval. The same burden is not imposed on secular
property holders. The act also states that the government shall not
impose or implement a land use regulation that “totally excludes
religious assemblies from a jurisdiction.” This means the situation in
Homestead and Surfside where the cities created religion-free zones will
no longer be permissible. The act also states that the government shall
not impose or implement a land use regulation that “unreasonably limits
religious assemblies, institutions, or structures within a
This section of the act will remedy the bizarre zoning restrictions
in Oregon, where a church was only allowed to exist under unreasonable
restrictions. Moreover, the government will no longer be able to bully
people into shutting down their Bible studies and home prayer meetings.
The application of this act is extremely broad — as broad as the
coalition that supported its passage. In case government officials
still don’t get the message after reading the act, the act itself states
that it must be “construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by the terms of this Act and
the Constitution.” Government officials should wake up and take notice
of this new law because a new day has arrived.
We have received calls from pastors all over the country. They are
concerned about starting a small church, or expanding their existing
church. Many churches begin with Bible studies or prayer meetings in
private homes. This new law will be a key to unlocking the door which
zoning officials have oftentimes shut on religious activity.
Attention all prison ministries
In addition to the above application, the new law also applies to
protect prisoners in the exercise of their religious practices.
Sometimes prisoners have been told they can’t read the Bible and
missionary groups have been prohibited from visiting prisoners to
minister to them. In order to uphold any restriction on a prisoner’s
religious activity, the government must now muster a compelling interest
of the highest magnitude to justify the restriction on religious
activity. Even if the government can muster such an interest, the
government must achieve the interest in the least restrictive means
available. As in the zoning context, prisons are no longer
Contact Liberty Counsel for free help
If your local church, prison ministry, home Bible study group or
other religious organization has been harassed or restricted in its
activities or growth by a governmental authority through the use of
zoning laws, please contact
Counsel. Liberty Counsel is an affiliate of Jerry Falwell Ministries and will give you free advice regarding your rights as a religious entity under the new RLUIPA. We are affiliated with approximately 300 constitutional attorneys nationwide who are ready to help protect your rights.