|
Summarized by Kent Larsen
Appeals Court hears Mormon temple suit
Belmont MA Citizen-Herald 5Jan00 N1
By Alan Silverman: Correspondent
BELMONT, MASSACHUSETTS -- The Belmont Citizen-Herald's coverage of the
U.S. First Circuit Court of Appeals' hearing Monday, January 4th on the
Boston Temple lawsuit contains interesting details about the arguments
presented to the court, and the questions that the court asked. While
the arguments presented by both the LDS Church and the Belmont Temple's
neighbors were as expected, the Court's questions seemed to imply that
the building's size is an issue in the case.
The Belmont neighbors of the temple site argued that the Belmont Zoning
Board of Appeals erred when it granted a building permit to the LDS
Church for the Temple, because it relied on Massachusetts' Dover
Amendment, which the neighbors claim is unconstitutional because it
establishes religion. They also claim that a related Belmont bylaw is
also unconstitutional. U.S. District Court Judge Douglas Woodlock issued
an opinion May 24, 1999, saying that the Dover Amendment was
constitutional. The neighbor's appealed that ruling to the Circuit
Court.
The neighbors' argument rests on interpreting the U.S. Constitution's
First Amendment, which says "Congress [and the states] shall make no law
respecting an establishment of religion..." The neighbors claim that
this means the government shouldn't favor religion over other uses,
which the Dover Amendment clearly does. It reads, "No zoning ordinance
or by-law shall ... regulate or restrict the use of land or structures
for religious purposes."
But the Church argued that the constitution merely intended to keep the
government from establishing a particular religion, as opposed to
religion in general. From this view, the Dover Amendment is actually
protecting religions from discrimination, keeping a local government
from using zoning laws to keep out religions it doesn't like. Judge
Woodlock agreed, "The Dover Amendment plainly stated that it intended to
prevent discrimination against land uses for religious purposes, but
nowhere did it state or suggest that it was sponsoring or endorsing land
use for religious purposes."
Michael Peirce, attorney for the neighbors, told the three-judge panel
that the Dover Amendment favors religions over non-religious groups. In
this case, Belmont zoning law normally forbids places of assembly from
residential areas, but the Dover Amendment allow religions to ignore
that provision. He argued that for the Dover Amendment to be
constitutional, it must have a secular purpose, instead of just
protecting religions.
The court then asked Peirce, "But isn't avoiding interference with
religion a secular purpose?" and Peirce responded that "There may be an
accommodation to religion, but not an abdication."
The court also pointed out that the town still could enact "reasonable
regulations concerning the bulk and height of structures" and restrict
parking and other issues that didn't concern the use of the land or use
of the building. The Church met Belmont's restrictions in these areas
The LDS Church's attorney, Paul Killeen, made this clear. He said that
the size of the building meets zoning requirements. "Anyone - a church,
a school, a homeowner" - can erect a six-story building on the nine-acre
parcel in Belmont, said Killeen. "If Bill Gates wanted to put up a
six-story building there, he could," he added after the hearing.
Killeen also argued that the Dover Amendment does have a secular
purpose. He told the court that it protects other uses besides religious
uses, including educational uses, day care and others. He also argued
that the law can benefit religion without establishing it. "Does it
promote religion or does it leave religion alone to do what it does?" he
argued.
While the Church was supported by several "friend of the court" briefs
from various religions and from the Massachusetts Attorney General's
Office, only the Church's attorney presented arguments.
Mark White, co-counsel with Peirce for the neighbors, told reporters
after the hearing that regardless of the decision, he expected an appeal
to the U.S. Supreme Court. He said that if his clients loose, they will
certainly appeal.
|
