Ehlers-Renzi v. Connelly School of the Holy Child, Inc. , 224 F.3d 283 ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BIRGIT EHLERS-RENZI; VINCENT
RENZI,
Plaintiffs-Appellees,
v.
CONNELLY SCHOOL OF THE HOLY
CHILD, INCORPORATED,
Defendant-Appellant.
THE AMERICAN JEWISH CONGRESS;
THE BECKET FUND FOR RELIGIOUS
LIBERTY; THE CONVENTION OF THE
PROTESTANT EPISCOPAL CHURCH OF
No. 99-2352
THE DIOCESEOF WASHINGTON;
GENERAL CONFERENCE CORPORATION
OF SEVENTH-DAY ADVENTISTS;
NATIONAL JEWISH COMMISSIONON
LAW AND PUBLIC POLICY; THE ROMAN
CATHOLIC ARCHDIOCESE OF
WASHINGTON; UNION OF ORTHODOX
JEWISH CONGREGATION OF AMERICA;
AMERICAN CIVIL LIBERTIES UNION OF
MARYLAND; AMERICAN CIVIL
LIBERTIES UNION OF THE NATIONAL
CAPITAL AREA,
Amici Curiae.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
J. Frederick Motz, Chief District Judge.
(CA-99-1512-JFM)
Argued: May 2, 2000
Decided: August 14, 2000
Before WIDENER, MURNAGHAN, and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Reversed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Widener joined. Judge Murnaghan wrote a dissenting
opinion.
_________________________________________________________________
COUNSEL
ARGUED: John G. Roberts, Jr., HOGAN & HARTSON, L.L.P.,
Washington, D.C., for Appellant. Vincent D. Renzi, Potomac, Mary-
land, for Appellees. ON BRIEF: Gregory G. Garre, HOGAN &
HARTSON, L.L.P., Washington, D.C.; William K. Wilburn, Sara
Beiro Farabow, SEYFARTH, SHAW, FAIRWEATHER & GER-
ALDSON, Washington, D.C., for Appellant. Kevin J. Hasson, Eric
W. Treene, Roman P. Storzer, THE BECKET FUND FOR RELI-
GIOUS LIBERTY, Washington, D.C., for Amici Curiae American
Jewish Congress, et al. Arthur B. Spitzer, AMERICAN CIVIL LIB-
ERTIES UNION OF THE NATIONAL CAPITAL AREA, Washing-
ton, D.C.; Dwight H. Sullivan, AMERICAN CIVIL LIBERTIES
UNION OF MARYLAND, Baltimore, Maryland, for Amici Curiae
Unions.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Birgit Ehlers-Renzi and her husband, Vincent Renzi, Montgomery
County, Maryland, homeowners who live across from a Roman Cath-
olic school which is constructing improvements and additions to the
school without obtaining a "special exception," challenge the consti-
tutionality of Montgomery County Zoning Ordinance§ 59-G-2.19(c),
which exempts such schools from the special exception requirement.
The Renzis contend that the ordinance violates the Establishment
2
Clause of the First Amendment, as applied to the States through the
Fourteenth Amendment.
The district court, agreeing with the Renzis, declared the ordinance
unconstitutional and enjoined the school from continuing construc-
tion, except to complete a parking lot and sediment pond, on which
construction had already begun. For the reasons that follow, we
reverse.
I
The Connelly School of the Holy Child, Inc. ("Connelly School")
operates a non-profit, college-preparatory school for young women in
grades 6 through 12, under the auspices of the Roman Catholic
Church. In the school, according to its catalog,"Christian values are
not only taught in the classroom but put into practice," and students
are required to take religion courses and attend masses. Connelly
School opened in 1961 and is situated on ten acres of land on Bradley
Boulevard in Potomac, Maryland. The school and the land are owned
by the Society of the Holy Child Jesus, Inc., a Pennsylvania corpora-
tion, which also operates under the auspices of the Roman Catholic
Church. The school, which had an enrollment of 413 students during
the 1999-2000 academic year, operates from a large main building,
two modular classrooms located in trailers, and a home with an
attached chapel. The property also includes athletic fields and parking
lots.
After initiating a fund-raising campaign and hiring an architectural
firm, Connelly School finalized plans to remove two existing struc-
tures, as well as the trailers, and to construct a 30,000 square-foot,
two-story building to contain classrooms, a library, facilities for
music and art programs, and other educational areas. The plans also
provide for the construction of additional parking areas.
Before beginning construction, Connelly School informed neigh-
boring landowners that it would not seek a special exception for its
construction plans because § 59-G-2.19(c) of the Montgomery
County Zoning Ordinance ("Zoning Ordinance") exempts from the
special exception requirement parochial schools located on land
owned or leased by a church or religious organization. After receiving
3
that notice, the Renzis, who live across the street from Connelly
School, requested that Montgomery County determine whether Con-
nelly School was indeed exempt from the requirement to obtain a spe-
cial exception. When the County ruled that Connelly School was
exempt from the special exception requirement, the Renzis filed an
administrative appeal with the Montgomery County Board of
Appeals. They subsequently withdrew that appeal, however, and
instead filed this action for a declaratory judgment and injunctive
relief, alleging that the exemption and the school's reliance on the
exemption violate the Establishment Clause of the First Amendment.
On cross-motions for summary judgment, the district court ruled
that Zoning Ordinance § 59-G-2.19(c) violated the Establishment
Clause. See Renzi v. Connelly Sch. of the Holy Child, Inc., 61 F. Supp.
2d 440 (D. Md. 1999). Applying the test set forth in Lemon v. Kurtz-
man, 403 U.S. 602 (1971), the court determined that the exemption
in the Zoning Ordinance did not have a secular legislative purpose,
rejecting Connelly School's argument that it encouraged the private
use of under-utilized public-school facilities, promoted education, and
alleviated governmental interference with religion. The court rea-
soned that even if the exemption did minimize such interference, "that
purpose would be constitutionally insufficient" because it is "wholly
conjectural and does not relate to any identified risk of ``significant'
governmental interference with religious affairs." The district court
also ruled that the exemption impermissibly advanced religion
because it allowed religious schools to escape the density restrictions
in the Zoning Ordinance that were applicable to secular schools and
thereby more easily increase their enrollment and fulfill their financial
obligations.
This appeal followed.
II
The Montgomery County Zoning Ordinance ordinarily requires
private educational institutions and other nonresidential uses in resi-
dential areas to obtain a "special exception" before constructing
improvements and additions, such as those planned by Connelly
School. Zoning Ordinance § 59-C-1.31. To obtain a special exception,
a private school is required to file a petition containing specified
4
information, including a statement explaining "in detail how the spe-
cial exception is proposed to be operated," and supported by a plat,
drawings, and a site plan for the proposed construction. Id. §§ 59-A-
4.22(a), 59-G-2.19(b). The petition may be granted only after public
notice and hearing, see id. § 59-A-4.41(a), during which residents
may testify on the petition, and the Board of Appeals may grant a spe-
cial exception petition only if it finds that the private school's use
"will not constitute a nuisance"; that it will be "housed in buildings
architecturally compatible with other buildings in the surrounding
neighborhood"; that it will not "affect adversely or change the present
character or future development of the surrounding residential com-
munity"; and that it "can and will be developed in conformity with"
various specified requirements, id. § 59-G-2.19(a). The Zoning Ordi-
nance provides, in addition, that the special exception use must be
inspected annually for compliance with restrictions imposed in con-
nection with the special exception, that the special exception holder
must respond to any ongoing complaints of noncompliance, and that
the special exception use is subject to revocation. See id. § 59-G-
1.3(a), (b), (e).
The requirement to obtain a special exception, however, does not
apply to all nonresidential uses. In particular, Zoning Ordinance § 59-
G-2.19(c) provides the following exemption:
The requirements of this section shall not apply to the use
of any lot, lots or tract of land for any private educational
institution, or parochial school, which is located in a build-
ing or on premises owned or leased by any church or reli-
gious organization, the government of the United States, the
State of Maryland or any agency thereof, Montgomery
County or any incorporated village or town within Mont-
gomery County.
While Zoning Ordinance § 59-G-2.19(c) exempts from the special
exception requirement private schools located on property owned or
leased either by the national, state, or local government or by a church
or religious organization, it is the portion exempting a "parochial
school, which is located in a building or on premises owned or leased
by any church or religious organization" that the Renzis challenge as
improperly establishing religion.
5
Connelly School argues that the exemption created by Zoning
Ordinance § 59-G-2.19(c) represents an appropriate effort by Mont-
gomery County to accommodate religion "by simply excusing
religiously-affiliated entities from regulatory burdens placed on oth-
ers." It maintains that the exemption's purpose is to alleviate govern-
ment interference with the ability of religious organizations to fulfill
their religious missions; that its effect is to"make it easier" for reli-
gious organizations to advance religion; and that it avoids the entan-
glement "that would follow from subjecting religious schools to the
special exception process."
The Renzis contend, on the other hand, that Zoning Ordinance
§ 59-G-2.19(c) evinces no secular legislative purpose and that it does
not "remove a burden from the free exercise of religion" as required
for Connelly School's "``accommodation of religion' argument." They
argue that the exemption also indirectly aids religion. While they
acknowledge that such aid is permissible if it arises from a neutral and
generally applicable law, they maintain that it is impermissible when
it "only benefits religious landowners." Finally, the Renzis argue that
Zoning Ordinance § 59-G-2.19(c) fosters excessive government
entanglement with religion because it "is likely to cause or intensify
political fragmentation and divisiveness along religious lines."
We are thus confronted with the question of whether exempting a
parochial school from the procedures and restrictions otherwise
required to obtain a special exception in Montgomery County violates
the Establishment Clause of the First Amendment.
III
The Establishment Clause prohibits Congress and, through the
Fourteenth Amendment, the States from making any law"respecting
an establishment of religion." U.S. Const. amend. I; see also Cantwell
v. Connecticut, 310 U.S. 296, 303-04 (1940)."Establishment" con-
notes "sponsorship, financial support, and active involvement of the
sovereign in religious activity." Walz v. Tax Comm'n, 397 U.S. 664,
668 (1970). But recognizing that "this Nation's history has not been
one of entirely sanitized separation between Church and State," the
Supreme Court has noted that it "has never been thought either possi-
ble or desirable to enforce a regime of total separation." Committee
6
for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760
(1973). Thus, the principle is "fixed" that a government program or
law "which in some manner aids an institution with a religious affilia-
tion" does not, for that reason alone, violate the Establishment Clause.
Mueller v. Allen, 463 U.S. 388, 393 (1983).
But the prohibition against the establishment of religion does
require government neutrality toward religion and among religions.
See Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819,
839 (1995); Board of Educ. of Kiryas Joel Village Sch. Dist. v. Gru-
met, 512 U.S. 687, 696 (1994) (opinion of Souter, J.). And this neu-
trality may be a "benevolent neutrality." Walz, 397 U.S. at 669.
Indeed, the government is entitled to accommodate religion without
violating the Establishment Clause, and at times the government must
do so. See Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (The
Establishment Clause provides "ample room for accommodation of
religion"); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136,
144 (1987) ("[T]he government may (and sometimes must) accom-
modate religious practices"); Lynch v. Donnelly, 465 U.S. 668, 673
(1984) (The Constitution "affirmatively mandates accommodation,
not merely tolerance, of all religions"). The limits of this accommoda-
tion by government are not "co-extensive with the noninterference
mandated by the Free Exercise Clause." Amos , 483 U.S. at 334 (quot-
ing Walz, 397 U.S. at 673).
This authorized, and sometimes mandatory, accommodation of
religion is a necessary aspect of the Establishment Clause jurispru-
dence because, without it, government would find itself effectively
and unconstitutionally promoting the absence of religion over its
practice. See Lynch, 465 U.S. at 673 ("Anything less would require
the ``callous indifference' we have said was never intended by the
Establishment Clause"); School Dist. of Abington Township v.
Schempp, 374 U.S. 203, 225 (1963) ("[T]he State may not establish
a ``religion of secularism' in the sense of affirmatively opposing or
showing hostility to religion"); Zorach v. Clauson, 343 U.S. 306, 314
(1952) (To hold that the government may not "respect[ ] the religious
nature of our people and accommodate[ ] the public service to their
spiritual needs" would be to "prefer[ ] those who believe in no reli-
gion over those who do believe").
7
The line between benevolent neutrality and permissible accommo-
dation, on the one hand, and improper sponsorship or interference, on
the other, must be delicately drawn both to protect the free exercise
of religion and to prohibit its establishment. In Lemon v. Kurtzman,
403 U.S. 602 (1971), the Supreme Court articulated a test for drawing
that line, a test that has since been frequently criticized in its applica-
tion.* See, e.g., Michael W. McConnell, Religious Freedom at a
Crossroads, 59 U. Chi. L. Rev. 115, 118 (1992) (in the Lemon test,
"the Court has contrived a formula for interpreting the Establishment
Clause that contains inconsistencies within a single test"). And while
cases since Lemon continue to apply and adapt the test to various cir-
cumstances, see, e.g., Mitchell v. Helms, 120 S. Ct. 2530, 2540 (2000)
(plurality opinion) (recognizing that the Lemon test has been "recast"
and "modified . . . for purposes of evaluating aid to schools"), it has
not been overruled, see Koenick v. Felton, 190 F.3d 259, 265 (4th Cir.
1999) ("[T]he general principles we have relied on to evaluate Estab-
lishment Clause claims have not substantively changed since the
Lemon line of cases was decided"). Under Lemon, for a legislative act
to withstand an Establishment Clause challenge, (1) it must have a
secular legislative purpose; (2) its principal or primary effect must
neither advance nor inhibit religion; and (3) it must not foster exces-
sive governmental entanglement with religion. See 403 U.S. at 612-
13. While the Lemon test thus provides "helpful signposts" for analyz-
ing Establishment Clause challenges, Hunt v. McNair, 413 U.S. 734,
741 (1973); Mueller, 463 U.S. at 394, the structure for its application
to a religious exemption, such as that before us in this case, is more
clearly provided by Amos, where the Court held that the exemption
of religious organizations from the prohibition against religious dis-
crimination in employment of Title VII of the Civil Rights Act of
1964 does not improperly establish religion in violation of the First
Amendment. See Amos, 483 U.S. at 339-40. Accordingly, we now
apply the Lemon test as refined in Amos to analyze the exemption of
_________________________________________________________________
*This criticism has come even from members of the Supreme Court.
See, e.g., Kiryas Joel, 512 U.S. at 718-19 (O'Connor, J., concurring); id.
at 750-51 (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas,
J.); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.
384, 398-400 (1993) (Scalia, J., concurring in the judgment, joined by
Thomas, J.); Wallace v. Jaffree, 472 U.S. 38, 68-69 (1985) (O'Connor,
J., concurring in the judgment).
8
religious organizations from the requirements imposed by the Mont-
gomery County Zoning Ordinance.
IV
Under the first of Lemon's three prongs, we ask whether Zoning
Ordinance § 59-G-2.19(c) has a "secular legislative purpose." Lemon,
403 U.S. at 612. And as refined in Amos for statutory exemptions, we
determine whether the government has "abandon[ed] neutrality and
act[ed] with the intent of promoting a particular point of view in reli-
gious matters." Amos, 483 U.S. at 335. This secular purpose prong
presents a "fairly low hurdle," Barghout v. Bureau of Kosher Meat &
Food Control, 66 F.3d 1337, 1345 (4th Cir. 1995), which may be
cleared by finding "a plausible secular purpose" on the face of the
regulation, Mueller, 463 U.S. at 394-95.
Connelly School advances several plausible secular purposes
revealed by the Montgomery County Zoning Ordinance. It notes that
by exempting parochial schools from the special exception procedure,
Montgomery County avoids the interference with such schools' reli-
gious missions that otherwise might result from subjecting the schools
to the scrutiny and procedures that the Zoning Ordinance otherwise
would require. Connelly School also notes that by"stepp[ing] out of
the way of religion," the County avoids the creation of a forum in
which anti-religious animus underlying opposition to a special excep-
tion petition might be expressed. These purposes are indeed plausibly
evident on the face of the ordinance and have been found valid in
analogous contexts by the Supreme Court in Amos and by this court
in Forest Hills Early Learning Ctr., Inc. v. Grace Baptist Church, 846
F.2d 260, 263-64 (4th Cir. 1988) (upholding exemption for religious
daycare centers from licensing requirements). See also Walz, 397 U.S.
at 673 ("Grants of exemption historically guard against the danger of
hostility toward religion").
In Amos, the Supreme Court applied Lemon 's first prong to an
exemption in Title VII of the Civil Rights Act of 1964 that permitted
religious organizations to discriminate in employment on the basis of
religion. The Court found that the exemption served a permissible
secular purpose because it "alleviate[d] significant governmental
interference with the ability of religious organizations to define and
9
carry out their religious missions." Amos, 483 U.S. at 335. This same
reasoning applies to the exemption contained in Zoning Ordinance
§ 59-G-2.19(c). This exemption spares Connelly School from the rig-
orous review of numerous subjective factors that otherwise could
interfere with implementation of its mission. The exemption from the
special exception requirement relieves Connelly School from having
to justify its religious or religion-related needs before civil authorities
and convince those authorities that the school's renovations and addi-
tions satisfy such subjective requirements as, for example, "architec-
tural[ ] compatib[ility]" or conformity with "the present character . . .
of the community." Would a cross on a building offend citizens in the
neighborhood? Would Gothic windows offend a neighborhood that
was determined to maintain an American colonial style? Would a
chapel or chapel bell or chapel organ offend? The exemption also
extricates Montgomery County from the resolution of disputes that
could have a religious underpinning. Would citizen challenges actu-
ally be cloaking anti-religion or anti-denomination animosity? In
short, the low threshold of this first Lemon prong is readily cleared
by the Zoning Ordinance's plausible purpose of extricating Montgom-
ery County from these involvements in religion.
We reached the same conclusion in Forest Hills , in which we
upheld an exemption of religious daycare centers from licensing
requirements. We concluded that the exemption had the legitimate
secular purpose of "avoid[ing] interference with the execution of reli-
gious missions in a nonprofit area in which a church operates" and
thereby "prevent[ing] state interference with church programs that
provide education and care for children," even though the instruction
at the daycare centers may not have been explicitly religious. Forest
Hills, 846 F.2d at 263-64.
When confronted with a similar circumstance, the Seventh Circuit
reached a similar conclusion in Cohen v. City of Des Plaines, 8 F.3d
484 (7th Cir. 1993), where it rejected a constitutional challenge to a
zoning ordinance exempting church daycare centers from the require-
ment of obtaining a special use permit. Even though the exemption
applied to daycare centers operated in churches irrespective of
whether they provided religious instruction, the court held that it had
"the secular purpose of minimizing governmental meddling in reli-
gious affairs notwithstanding that [it] does not explicitly state that
10
[daycare centers] operated in churches in residential areas must give
care or instruction defined as ``religious.'" Cohen, 8 F.3d at 491.
The Renzis urge that we reject the applicability of these precedents
to this case, arguing that Zoning Ordinance § 59-G-2.19(c) reveals no
secular purpose on its face because the literal language of the exemp-
tion reaches not only parochial schools but also any other private
school that happens to be located on land owned by a religious orga-
nization. They argue that the breadth of this exemption belies any pur-
pose to extricate Montgomery County from religious matters but
rather indicates a purpose to favor religious landowners. In support of
this argument, they conjure up hypotheticals involving use of the
exemption by secular entities, such as a cosmetology school, that
operate on land owned by a church. This argument fails on two levels.
First, it must be recognized that the Renzis are challenging the uti-
lization of the exemption by a Roman Catholic school to construct
improvements and additions to a school located on property owned by
a corporation operated under the auspices of the Roman Catholic
Church. Thus, we do not have before us any of the hypothetical situa-
tions advanced by the Renzis. The Renzis respond by noting that they
styled their action as a facial challenge and that therefore they may
argue the constitutionality of the Zoning Ordinance under any hypo-
thetical set of circumstances. But their standing derives from their sta-
tus as neighbors challenging the particular improvements and
additions being constructed by Connelly School, a religious school
operated on property owned by a religious organization. The "tradi-
tional rule" is that one "to whom a statute may constitutionally be
applied may not challenge that statute on the ground that it may con-
ceivably be applied unconstitutionally to others in situations not
before the court." Los Angeles Police Dep't v. United Reported Pub-
lishing Corp., 120 S. Ct. 483, 489 (1999) (quoting New York v. Far-
ber, 458 U.S. 747, 767 (1982)); Tilton v. Richardson, 403 U.S. 672,
682 (1971) (plurality opinion) (under the Establishment Clause, "[w]e
cannot . . . strike down an Act of Congress on the basis of a hypotheti-
cal ``profile'" of a party not before the court).
Second, even if we look beyond the scope of the Renzis' challenge
against Connelly School in this case, the possibility that the exemp-
tion would be applied in a completely areligious setting is remote.
11
The Zoning Ordinance does not exempt landowners but rather school
uses. Thus, the ordinance exempts any private school located on prop-
erty owned by a religious organization. Whether the school is denom-
inated parochial or nonsectarian, the inquiry into the school's
operation and its relationship to religion would risk the same religious
entanglement. Because of this risk, in Forest Hills we expressly dis-
avowed any inquiry into whether the activities undertaken by reli-
gious organizations were actually religious and we rejected the
argument that an exemption for a religious organization is valid only
if it performs a demonstrably religious function. See 846 F.2d at 263;
see also Amos, 483 U.S. at 336 ("[I]t is a significant burden on a reli-
gious organization to require it . . . to predict which of its activities
a secular court will consider religious"); Cohen, 8 F.3d at 490 ("It is
not up to legislatures (or to courts for that matter) to say what activi-
ties are sufficiently ``religious'"). As James Madison put it in his
Memorial and Remonstrance Against Religious Assessments of 1786,
such an inquiry would "impl[y] . . . that the civil magistrate is a com-
petent judge of religious truth," which is "an arrogant pretension." The
Complete Bill of Rights: The Drafts, Debates, Sources, and Origins
48 (Neil H. Cogan ed. 1997). Because the exemption applies to any
private school located on land owned by a religious organization, reli-
gion is the defining aspect of the exemption, and we therefore believe
that the exemption plausibly aims to alleviate government interfer-
ence with religion.
At bottom, the exemption at issue in this case frees Connelly
School from obtaining a special exception only because the school
has a religious connection. The very existence of the school is prem-
ised on a religious mission. See Walz, 397 U.S. at 671 ("[T]o assure
future adherents of a particular faith" is "an affirmative if not domi-
nant policy of church schools"). And necessary to the fulfillment of
this mission is the existence of facilities which Connelly School
deems adequate to carry on its religious instruction. An official of the
school stated this explicitly, averring that the school "needs to reno-
vate in order to meet the educational and religious mission of the
Roman Catholic Church, the Society [of the Holy Child Jesus], and
the School." By removing the requirement to obtain a special excep-
tion, Montgomery County not only lifts a burden from the school's
exercise of religion but also extricates itself from potential interfer-
ence with the school's religious mission.
12
The second prong of the Lemon test prompts inquiry into whether
the statutory exemption has a "principal or primary effect" that "nei-
ther advances nor inhibits religion." 403 U.S. at 612. The Renzis
argue that the exemption impermissibly advances religion by "provid-
ing religious organizations an exclusive benefit." While Connelly
School acknowledges that Zoning Ordinance § 59-G-2.19(c) "may
well indirectly promote the ability of religious organizations to carry
out their own religious mission through the operation of the schools
located on their property," it argues that the Establishment Clause
only forbids advancement of religion by the government itself.
An exemption's effect of simply allowing a religious school to
"better . . . advance [its] purposes" does not rise to a constitutionally
prohibited magnitude. Amos, 483 U.S. at 336; see also Mueller, 463
U.S. at 393. An unconstitutional effect occurs when"the government
itself has advanced religion through its own activities and influence."
Amos, 483 U.S. at 337. In Forest Hills, we applied Amos to uphold
a law that "adopt[ed] a hands-off policy" in order to permit religious
organizations "to advance their own teachings." Forest Hills, 846
F.2d at 263. Similarly, in this case, Montgomery County has relieved
religious schools of the administrative burden of pursuing the special
exception procedure. Any advancement of religion that follows would
be the result of the religious schools' own acts in light of the exemp-
tion, as opposed to Montgomery County's elimination of an otherwise
applicable requirement. See Cohen, 8 F.3d at 492 ("The religious
component of child care and education activities in[the city] will
come from church members or leaders, not from government offi-
cials"); cf. Mitchell, 120 S. Ct. at 2540 (plurality opinion) (examining,
in the context of aid to schools, "whether any religious indoctrination
that occurs in those schools could reasonably be attributed to govern-
mental action"). Thus, when the district court in this case observed
that Zoning Ordinance § 59-G-2.19(c) would advantage Connelly
School over "non-profit nonsectarian private schools" by exempting
Connelly School from density restrictions, it identified a potential
benefit resulting from Connelly School's enrollment policy and
attraction of students, not from Montgomery County's policy of non-
interference. See Walz, 397 U.S. at 658 (identifying sponsorship, sup-
port, or involvement of the government in religion as the concerns of
the Establishment Clause). Echoing Amos,"we do not see how any
advancement of religion" that is achieved by Connelly School "can be
13
fairly attributed to [Montgomery County], as opposed to the Church."
Amos, 483 U.S. at 337.
Finally, Zoning Ordinance § 59-G-2.19(c) plainly satisfies Lemon's
third requirement that it not "foster ``an excessive entanglement with
religion.'" 403 U.S. at 613 (quoting Walz, 397 U.S. at 674). Indeed,
the parties appear to agree that it has a disentangling aspect, avoiding
governmental intrusion into matters of religious education. See Amos,
483 U.S. at 339 ("It cannot be seriously contended that [the chal-
lenged act] impermissibly entangles church and state; the statute
effectuates a more complete separation of the two and avoids . . . [an]
intrusive inquiry into religious belief"); Cohen, 8 F.3d at 493. While
the Renzis rely on language in Lemon to argue that the exemption
presents "divisive political potential," 403 U.S. at 622, the Supreme
Court subsequently confined this Lemon entanglement test to "cases
where direct financial subsidies are paid to parochial schools or to
teachers in parochial schools," Mueller, 463 U.S. at 403-04 n.11.
V
Religion and the State wisely function in different arenas, but the
people attending each arena are the same. Keeping religion and State
distinct, while at the same time protecting the freedom of the people
to act fully in both arenas, requires the State to recognize and even
interact with religion, but not to manage or incorporate the religious
arena itself by favoring religion over non-religion, by favoring non-
religion over religion, by favoring one religion over another, or by
distinguishing among religions. The State does not engage in any of
these establishment activities when it exempts religious institutions
from land-use regulations. Rather, such an exemption removes the
State from forums in which religious conflict might otherwise require
improper State action.
By providing an exemption to parochial schools or to any private
school on property owned by a religious organization, Montgomery
County has permissibly accommodated religion by allowing these
schools to operate or renovate their facilities without obtaining a spe-
cial exception. We plow no new ground in reaching this conclusion,
which follows ineluctably from the holdings in Amos, Forest Hills,
and Cohen.
14
Accordingly, we hold that Zoning Ordinance § 59-G-2.19(c) does
not violate the Establishment Clause of the First Amendment, and the
judgment of the district court is therefore
REVERSED.
MURNAGHAN, Circuit Judge, dissenting:
The natural tension that exists between the Establishment and Free
Exercise Clauses of the First Amendment requires that delicate lines
be drawn. Although I agree with the analytical approach taken by the
majority, I disagree with where they have drawn the line in this case.
Because I do not agree that Montgomery County Zoning Ordinance
§ 59-G-2.19(c) is a permissible accommodation of religion, I con-
clude that it violates the Establishment Clause of the First Amend-
ment and, accordingly, I dissent.
Relying on the rationale of Corporation of the Presiding Bishop of
the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.
327 (1987), the majority concludes that Montgomery County Zoning
Ordinance § 59-G-2.19(c) passes the first prong of the test laid out in
Lemon v. Kurtzman, 403 U.S. 602 (1971), because it has a legitimate
secular purpose: to alleviate "significant governmental interference
with the ability of religious organizations to define and carry out their
religious missions." Amos, 483 U.S. at 335. Specifically, the majority
found that the challenged ordinance "spares Connelly School from the
rigorous review of numerous subjective factors that otherwise could
interfere with implementation of its mission." (Ante at 10).
I disagree. Application of the County's special exception proce-
dures to the Connelly School would not significantly interfere with
the school's ability to define and carry out its mission. There is no
danger that Montgomery County will become involved in regulating
the school's program of religious education by simply enforcing the
generally applicable zoning rules and special exception procedures at
issue in this case. The special exception procedures do not burden the
exercise of religion in the same way or to the same degree as did the
employee hiring requirements at issue in Amos or the daycare pro-
gram regulations at issue in Forest Hills Early Learning Center v.
Grace Baptist Church, 846 F.2d 260 (4th Cir. 1988). There is an
15
important difference between regulations that reach into an organiza-
tion's program and personnel, on the one hand, and those that only
impact the development of its physical facilities, on the other. What
goes on within the walls of the church buildings is of far greater sig-
nificance than the configuration of those buildings. By failing to draw
a meaningful line between "significant" and"incidental" interference
with religious institutions, I fear the majority is inappropriately
expanding the Amos principle and, as a result, traveling down a path
that will ultimately render the Establishment Clause meaningless.
I find further support for my conclusion that the challenged ordi-
nance does not serve the secular purpose of avoiding governmental
interference with the church's mission in the language of the ordi-
nance itself. On its face, County Zoning Ordinance§ 59-G-2.19(c)
applies not only to religious schools, but also to secular schools oper-
ated on property owned or leased by religious institutions. If the ordi-
nance were a legitimate effort to avoid interference with the mission
of religious schools, it would not be written so as to extend its bene-
fits to schools that are not engaged in any sort of religious mission.
The overinclusive language of the ordinance belies the legislative pur-
pose accepted by the majority. For both of these reasons, therefore,
I conclude that County Zoning Ordinance § 59-G-2.19(c) was not
enacted with the legitimate secular purpose of avoiding governmental
interference with the free exercise of religion.
In Amos, the Supreme Court marked a path for legislative actions
which relieve religious institutions from generally applicable regula-
tory burdens in order to better accommodate the free exercise of reli-
gion. This court followed that path in Forest Hills by upholding a
legislative exemption in Virginia which relieves religiously affiliated
daycare centers from the burdens of licensing requirements applied to
secular daycare facilities. In both Amos and Forest Hills, one can eas-
ily discern a genuine effort to allow religious institutions to operate
programs and thereby fulfill their missions without significant, sub-
stantive interference from the government. In this case, however, I do
not see any such genuine effort. Instead, I see something that looks
very much like ordinary favoritism for religious property owners in
Montgomery County. Because I believe that such favoritism is pre-
cisely what the Establishment Clause forbids, I would hold that Mont-
gomery County Zoning Ordinance § 59-G-2.19(c) is invalid.
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