Alabama case could be test of religious land-use law
___By Keith Clines
___Religion News Service
___HUNTSVILLE, Ala. (RNS) --A small, run-down house in this city's downtown is at the center of a legal dispute that could determine how much control government has over a religious organization's use of its land.
___Temple B'nai Sholom claims a city board's refusal to let the synagogue demolish a house in a historic district violates the synagogue's First Amendment right of freedom of religion and its rights under the Religious Land Use and Institutionalized Persons Act of 2000.
___Attorneys for both sides say they aren't seeking to make the lawsuit a national test case. But one nationally known lawyer has offered to help the city fight the synagogue, and the synagogue is talking to national legal firms that specialize in freedom-of-religion laws.
___The case could vault onto the national stage if advocacy groups on each side decide it would be the best vehicle to ask the U.S. Supreme Court to rule on the constitutionality of the Religious Land Use law.
___"This is not the only case out there," said law professor Tom Berg, an expert on church and state issues. "There are probably 15 to 20 out there. It's one of the earliest."
___The temple sued the city in state Circuit Court after the Huntsville Historic Preservation Commission in April denied--for the third time--the temple's request to demolish the house in the Old Town Historic Preservation District.
___The city's Community Development inspectors had cited the temple for violating building safety laws. A cited landowner usually has two choices: repair a building to meet code or demolish it. The historic preservation board's decision eliminates the demolition option.
___"We are of the opinion, like their neighbors are, that (the temple) should abide by the rules and regulations of the Historic Preservation Commission," said attorney Michael Fees, who is representing the city in the lawsuit. "If they're not, then that puts all historic properties owned by religious organizations in danger."
___Marci Hamilton, a law professor in New York City, has offered to help the city, Fees said. Hamilton was the lead attorney when the Supreme Court ruled unconstitutional the 1993 Religious Freedom Restoration Act after a Texas church used the act to justify an expansion.
___Congress passed legislation last year to replace the 1993 law. The new law requires local governments to have a compelling interest, such as public safety, to enforce land-use regulations that impose a substantial burden on religious activities. And the law says a local government must find the "least restrictive" way to satisfy the public interest.
___Word of the Huntsville dispute percolated up to the National Trust for Historic Preservation. Trust officials contacted Hamilton because they thought the case could affect historic neighborhoods elsewhere.
___David Block, Temple B'nai Sholom's attorney, said the synagogue is considering bringing in lawyers who specialize in prominent religious freedom cases.
___"A number of religious freedom experts are very interested in our case," Block said.
___He argued that the federal Religious Land Use law doesn't allow the city to force the synagogue to spend money repairing the house.
___The temple wants to demolish the house and use the property as open space for a playground and outdoor religious activities until it is ready to expand the synagogue.
___It would cost about $80,000 to make the house livable, Block said. That is government interference in the congregation's religious activities because it takes money away that could be used to pay a rabbi's salary or to buy religious materials, he argued.
___Berg, a professor at Samford University's Cumberland School of Law, believes the temple has a good argument.
___"The standard in the act is if the government puts undue restrictions on the freedom of religious exercise," he said. "Making them spend a substantial amount of money on repairs may be a substantial burden on the church."
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