House Church Meetings: A Legal Analysis 1 (Gallagher)
Several prominent public policy issues must be considered when evaluating the question of regulating religious practices in a residential setting. These including the importance of private practice of religion that fosters a sound moral foundation for society, the greater protection and privacy that is afforded to a personís house, and the vulnerability of minority faiths with the need for protecting their inalienable rights. However, these considerations must be balanced with the governmentís responsibility to maintain a level of public health, safety, morals, and order.
The following discussion is prefaced with the understanding that there are balancing policy considerations. There is a potential for some religiously-motivated conduct to interfere with the health, safety, and morals of the surrounding community. The government has legitimate responsibilities, especially as regards to protecting the rights of neighbors to intervene to preserve the health, safety, and morals when there are substantial breaches. Such a situation could be large noisy late-night party in a densely populated area. So too, a religious gathering in a personís home could excessively affect the surrounding neighborhood to bring it within the health, safety, and morals jurisdiction of the government. The issue is where does legitimate government interests begin and what are the balancing principles?
Free exercise of religion is not only constitutionally protected, it is good public policy. America was founded on a bold and novel premise. While religion is a foundational support for individual morality and good government, the Bill of Rights grants freedom from governmental enforcement of religious doctrine and dogma.1 This was a major break with the European tradition from which America was birthed. Many European governments of colonial times were synonymous with state churches and religious coercion. In fact, it was this very coercion that brought many of the colonists to the shores of America, including the Pilgrims, Quakers, and Mennonites. (Even in the nineteenth and twentieth centuries, immigration due to religious persecution continued with the Irish Catholics and the German Jews, to the present day immigration of Jews from the former Soviet Union.) The United States embarked on a great experiment of limiting governmental jurisdiction over matters of faith and religious doctrine. Yet, it was clear that the Founders of the country recognized the supreme importance of religious influence to provide motivation for morality and self-restraint.2 However, they also recognized that governmentís tool of coercion was unable to direct and insure the development of voluntary religiously-motivated behavior.3 Rather, it was incumbent on the people themselves, to be responsible to initiate and pursue the development of faith, morality, and their duty to their Creator. The Foundersí experiment was whether in recognizing the inalienable right of persons to fulfill their duty to their Creator through voluntary associations, sufficient individual and civic morality would be maintained to sustain self-governance.
It was in this context that the Free Exercise Clause was framed and ratified. As government was limited from regulating religious matters through the prohibition on establishment, the individual liberty for religious exercise was recognized in the same First Amendment to the Constitution.4 From George Washington to Vice President Albert Gore, public officials have recognized the indispensable role that religion plays in our society.5 Yet, these same officials recognize that government is incapable of filling the void where morality and religion are missing.6 Therefore, it is of utmost importance that the government fosters an environment where the free exercise of religion can flourish while limiting governmental infringement on an individualís practice of religion. The Founders saw that the very survival of our country hung on a moral and religious people who would voluntarily restrain their conduct and choose to do right.
A public policy issue that is related to worship in oneís house is the need to be secure in oneís house. The U.S. Supreme Court recently citing from an old English case stated, "the house of every one is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose."7 While the U.S. Supreme Court was applying this to a Fourth Amendment, unreasonable secure and seizure case, oneís home has been recognized under the Fourth Amendment as worthy of receiving heightened protection. It is sound public policy to continue to grant wider latitude to religious expression in one's house because that is often the last or only refuge for those of minority or non-conformist faiths.
In addition, there are many that express a belief that oneís home is of special significance for demonstrating oneís faith or religious expression. The Amish have long eschewed church buildings or meeting houses because they adhered to a conviction that religious services should be held in the private houses of the local members of each district.8 Meetings of believers in the New Testament days of early Christianity were primarily based on gatherings in private houses.9 There is a growing movement of house churches that also hold the conviction that the home is to be the primary location for religious meetings.10 Many institutional churches are embracing the need for home groups, care groups, or home cells meeting in private houses. These home groups are seen as the place where relationships, discipling, outreach, and service most naturally occur. Synagogues, especially Orthodox Jewish, have long found that the home is an important, if not the primary place of their religious expression. Orthodox Jewish religious convictions, such as being within walking distance for Shabbat services and daily prayer meetings, have made the use of oneís house vital to religious services in some parts of the country.
In addition, history is replete with examples of oneís house being the final refuge for out-of-favored and persecuted believers. In China, an estimated 20 to 30 million believers meet in unregistered house churches.11 Chinese house church leaders are currently enduring increased persecution and imprisonment.12 This pattern can be found over and over again where people belonging to minority and nonconformist faiths are oppressed by the powers-that-be. As stated above, this country was populated and founded in significant part by people fleeing persecution of their minority religious status.
Lastly, new and fledging congregations many times have to meet in private houses due to a lack of resources.13 Public policy and jurisprudence must allow for small communities as well as established, well-funded institutions, and use common sense to understand the distinctions in worship facilities.14
Over the last 200 years, the United States has been a leader in setting a new paradigm for protecting religious liberties. This experiment has allowed private religious faith to flourish. While we are not currently seeing believers imprisoned for refusing to submit to government regulation of their church or synagogue, just how much protection do current laws and prevailing jurisprudence provide to believers to meet in their houses? The following discussion is a selection of some of the conflicts that have come to the public attention either through the press or the judicial system.
In 1981, a minister in Franklin Township, New Jersey was charged with violating a zoning ordinance because he was using his home "for activities other then [sic] permitted use." 15 The basis of the charge was that the minister conducted an one-hour service for approximately twenty-five people in his home once a week. The enforcement action "arose after one of the defendant's neighbors reported that the religious service could be heard eighty feet from the defendant's home, and that cars parked on the street by those attending the service hindered the passage of traffic."16 The minister had to fight the case through the New Jersey Supreme Court which decided the zoning ordinance was unconstitutionally over-broad and void for vagueness. The minister, ordained in a small denomination, resorted to conducting services in his house because they could no longer afford the rent for the local school.17
Also in 1981, a rabbi in Miami Beach, Florida was threatened with prosecution for conducting religious meetings at his house in violation of the city zoning ordinance.18 Services usually consisted of between ten to thirty people, but occasionally reached fifty people during the winter.19 Daily services usually cause no substantial disturbance to the neighborhood, but well-attended services have disturbed neighbors as a result of persons seeking directions to the Grosz shul, as a result of chanting and singing during the services ..."20 The rabbi, Armin Grosz, and his wife, Sarah Grosz, filed a suit in federal district court seeking declaratory judgment and injunctive relief from prosecution. The district court refused to find that the zoning ordinance was vague or overbroad, but the court did find it substantially burdened the Groszís free exercise rights without having a compelling state interest. However, the appeals court found that the trial court erred in its compelling interest balancing test and reversed the finding of unconstitutionality.
More recently, a house synagogue in a neighborhood of Los Angeles sought City Counsel approved of a special zoning permit needed to legally operate.21 The City Counsel unanimously rejected their request although the synagogue had a 25 year history in that neighborhood. The synagogue originally operated out of the home of the father of the current rabbi. When the father grew too old, the son moved the services to a rented house on a busy intersection three blocks away from the fatherís home. The Hancock Homeowners Association was the leading opponent of the special use permit. However, a neighbor did testify that the synagogue had no discernable impact on the neighborhood.22
Another recent controversy involving home synagogues occurred in the Village of Airmont, New York.23 Several small villages had been incorporated in the area. "A couple of the villages were formed by Orthodox Jewish groups for the admitted purpose of creating Hasidic enclaves so that the village residents could comply with Orthodox Jewish law."24 However, the Village of Airmont was incorporated and implemented changes in the housing and zoning laws which some Orthodox Jewish rabbis of house synagogues viewed as discriminatory towards Orthodox Jews. A Federal appeals court reversed a trial courtís interpretation of a jury verdict and found that the Village violated the rabbiís Free Exercise Clause rights.
A resident of Stratford, Connecticut was charged with violating the zoning code because he was holding fellowship meetings of up to ten people three times per week in his house.25 In response to a complaint from a neighbor that religious services were being conducted in William Nicholsí house, a zoning enforcement officer initiated an inspection. The enforcement officer then threatened Nichols with $100 to $250 fines per violation if he did not cease all religious meetings in his house. He appealed the zoning officerís decision to the local zoning appeals board and his appeal was rejected. A Federal district court found that the special permit requirement for "other religious use" of a residence was unconstitutionally vague, both on the face and as applied.26
In Denver, a women is currently fighting a cease-and-desist order that is seeking to limit her home prayer meetings to no more than once a month.27 Diane Reiter had been holding weekly bible studies in her home. Between nine and 15 women would begin with dinner and spend two to three hours praying and discussing the Bible. After losing an appeal before the zoning board, Ms. Reiter has filed a suit for violation of her constitutional rights. An issue in this case appears to be whether the zoning ordinance is applied neutrally to all residential gatherings or specifically to religiously oriented gatherings. This case is still pending at the time of this writing.
The majority of conflicts do not appear to be a result of communities and states actively seeking to strictly enforce zoning laws, but rather local zoning boards or local political bodies responding to neighbor complaints. However, once the government enforcement mechanisms go into effect, persons find themselves on the receiving end of government prosecution.28