Leblanc-Sternberg v. Fletcher
United States Court of Appeals
for the Second Circuit (1994)

In describing the post-litigation developments in these cases, the court below observed: "With respect to synagogues, nothing other than the passing of the zoning code ... has occurred which even remotely bears on the issue." 839 F.Supp. at 1063. The "passing" of the zoning code, however, bears substantially on the issues presented in this case, because it affords an opportunity to evaluate whether the Village of Airmont is prepared adequately to safeguard the religious rights asserted by the plaintiffs.

The Village of Airmont zoning code is similar to the Town of Ramapo's. However, "[v]iewing the evidence in the light most favorable to the Government, we can foresee that the Planning Board and the Zoning Board [of the Village of Airmont]... will not adopt the Ramapo interpretation of the home professional office exception." 839 F.Supp. at 1064 (footnote omitted). Stated otherwise, the court below foresaw that the Village of Airmont might well prohibit the use of homes as houses of worship.

Yet the prospect of an outright Village ban on home houses of worship did not faze the court. Nor did the Village code's insistence on two-acre lots for neighborhood places of worship in non-R15 zones. Relying primarily on several federal circuit court rulings, the court below concluded that a municipality's interest in maintaining the integrity of its zoning laws could outweigh the religious rights of persons seeking to establish non-conforming houses of worship, so long as "the practice of religion... may be carried on in other locations." Id. at 1065.

Agudath Israel submits that this conclusion was erroneous. There is, concededly, a body of case law that minimizes the free exercise of religion protections available to religious practitioners and religious institutions when their interests conflict with a municipality's zoning standards. But there is also a body of case law that places higher value on free exercise considerations, and requires non-health-and-safety related general zoning interests to yield when they burden religious practice. We believe that the First Amendment's free exercise clause, as well as the recently enacted Religious Freedom Restoration Act (RFRA), compel the conclusion that this latter view is the correct view; and we call upon this Court, which has long been a champion of religious liberty, to align the Second Circuit with "the majority position,... [which] gives considerable deference to religious uses." Pearlman, Zoning and the Location of Religious Establishments, 31 Catholic Lawyer 314 (1988).

The Applicable Free Exercise Standard

In its most recent pronouncement in the field of free exercise jurisprudence, Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217 (1993), the Supreme Court summarized its current understanding of the First Amendment's protections:

Even if the zoning ordinances adopted by the Village of Airmont are deemed "neutral" and "generally applicable," thereby bringing them within the no free exercise protection rule of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), they still must be analyzed under the compelling interest test. That is because the Religious Freedom Restoration Act, which was signed into law in November 1993, statutorily mandates strict scrutiny even in cases where religious exercise is burdened only incidentally by a neutral law of general applicability. The relevant section of RFRA, 42 U.S.C. 2000bb-1, reads as follows:

The bottom line, therefore, is clear: Insofar as the Village of Airmont's zoning code substantially burdens religious exercise, it may do so only if it furthers a compelling governmental interest, and is narrowly tailored -- "the least restrictive means" -- to achieve that purpose.

The Substantiality of the Burden

The court below took the position that the burden on religious practice imposed by the Village of Airmont's zoning code was insubstantial. Relying on Messiah Baptist Church v. County of Jefferson, Colo., 859 F. 2d 820 (10th Cir. 1988), the decision below emphasized that the establishment of a house of worship -- as opposed to the act of prayer -- is not a fundamental tenet of religion. Thus, "requirements limiting the construction of a house of worship do not necessarily restrict the practice of religion, which may be carried on in other locations." 839 F.Supp. at 1065.

The view that local prohibitions against the establishment of houses of worship are not infringements on free exercise freedoms apparently had its genesis in Lakewood, Ohio Congregation of Jeohva's Witnesses v. City of Lakewood, Ohio, 699 F. 2d 303 (6th Cir.), cert. denied 464 U.S. 815 (1983), another case cited by the court below. At issue in Lakewood was the constitutionality of a city zoning ordinance prohibiting construction of houses of worship in virtually all residential districts, leaving only ten percent of the city available for such construction. The Sixth Circuit upheld the ordinance, finding that the building of a house of worship is a "purely secular act", entitled to no free exercise protection -- despite what the court characterized as the "indirect financial burden and a subjective aesthetic burden" the ordinance would concededly impose upon religious worshipers. 699 F. 2d 307.

Similarly, in Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983), also relied on by the court below, the Eleventh Circuit conceded that it did not "know the exact impact ... in terms of convenience, dollars or aesthetics, that a change of location would entail." It nonetheless concluded that a congregation that had been gathering for prayer services in an elderly rabbi's home, located in a residential area that prohibited houses of worship, could be compelled to relocate; the congregation "may conduct the required services in suitably zoned areas, either by securing another site away from their current house or by making their home elsewhere in the city." 721 F.2d at 739.

We urge this Court emphatically to reject the approach of Lakewood, Grosz and the other cases that attach no free exercise consequence to the costs imposed by zoning ordinances that severely restrict the permissibility of establishing houses of worship. As one commentator has noted, this approach would all but eviscerate religious freedom protections in the context of land use policy:

These considerations, applied to the zoning code adopted by the Village of Airmont -- a code that permits houses of worship in non-R15 areas only on two acre properties, and foreseeably prohibits home houses of worship -- demonstrate the substantial burden the code would impose on the free exercise rights of Orthodox Jews.

Communal prayer is an integral part of Orthodox Jewish practice. Synagogues must be within walking distance, for it is prohibited to travel on the Sabbath or Holidays. There are, moreover, numerous traditions within Orthodoxy, with different customs, rituals and prayer services.

Small home synagogues afford Orthodox rabbis realistic opportunities to lead congregations, and afford Orthodox congregants an opportunity to worship under the religious direction of a rabbi of their choosing. Moreover, they afford these opportunities in a manner that is affordable. To totally ban them, and then to insist that congregations of different backgrounds and customs within Orthodoxy join together under the direction of one rabbi at one location after acquiring a two acre parcel, is to impose a significant burden on religious exercise. Yet that is what the Village of Airmont's zoning code would do. The happenstance that the Village authorities apparently have chosen not to enforce these code requirements during the pendency of this litigation -- a fact to which the court below attached great significance, 839 F.Supp. at 1063 -- in no way diminishes the restrictive authority the code confers upon them.

What is striking is that the court below acknowledged most of these factors, though it failed to accord them any legal weight. Thus, in commenting on the "reasons for the popularity of shteebles" (home houses of worship), the court stated:

Contrary to the court's condescension, having a place of worship within walking distance is no mere "preference" for Orthodox Jews; it is an absolute prerequisite. Worshiping with a particular rabbi is also no mere "preference"; it is a fundamental aspect of religious freedom to be able to choose the clergyman under whose direction one wishes to worship and grow spiritually. If Orthodox residents of Airmont "adhere to two different rabbis," such adherence is at the core of free exercise values. Finally, the lower economic cost of establishing a small home house of worship is not merely a "reason for the popularity of shteebles"; for lower-income Orthodox Jews, who cannot afford to support a full-size congregation on a separate two acre plot, prohibiting home houses of worship effectively precludes them from joining the community.

To uphold the approach adopted by the court below would be to ignore the very real impositions on religious freedom imposed by the Village of Airmont. We urge this Court to adopt an approach more solicitous of free exercise values.

The Nature of the Governmental Interest

Courts that have evaluated the strength of the governmental interest in restricting the availability of houses of worship have spoken of a variety of factors. In Grosz, for example, the Eleventh Circuit recited some of the disruptions created by the presence of a home synagogue in a residential area of Miami Beach:

As noted above, however, in order for a governmental body to justify imposing a substantial burden on religious exercise, the interest it seeks to pursue through such imposition must be "compelling"; and the imposition must be narrowly tailored, "the least restrictive means," of achieving that interest. The concerns typically recited in support of zoning restrictions on religious institutions do not, we submit, rise to the level of a compelling governmental interest.

We would support the formulation advanced by Chief Judge Breitel, concurring in Jewish Reconstructionist Synagogue of North Shore v. Incorporated Village of Roslyn Harbor, 38 N.Y. 2d 283, 291-92 (1975): "Fundamentally, the law should move in the direction of requiring even religious institutions to accommodate to factors directly relevant to public health, safety, or welfare, inclusive of fire and similar emergency risks, and traffic conditions insofar as they involve public safety." Those, we agree, are compelling governmental interests. Not so is government's interest in safeguarding neighbors against the minor inconveniences and disruptions of having a house of worship in the neighborhood.

The Village of Airmont's zoning code seeks to advance many interests -- some of them arguably compelling, many of them not. Because the code is not narrowly tailored to address the types of fundamental concerns identified by Chief Judge Breitel, it fails the test of free exercise. The ruling of the court below to the contrary is erroneous, and should be reversed.