Open Door Baptist Church v. Clark County , 140 Wash. 2d 143 ( 2000 )

Alexander, J.

Clark County issued a notice and order to the Open Door Baptist Church (Open Door), based on the County’s determination that Open Door’s church site did not conform with the County’s zoning code. The order required Open Door to either cease its business activities or apply for a conditional use permit. Open Door appealed the determination to the Clark County hearing examiner. The hearing examiner affirmed the notice and order. Open Door then obtained review by a writ of certiorari to the Clark County Superior Court. After a hearing, the superior court vacated the hearing examiner’s ruling based upon its finding that the County’s action would constitute a burden on Open Door’s free exercise of religion. The County appealed that decision to the Court of Appeals, arguing that Open Door had failed to demonstrate that applying for a permit would burden its free exercise of religion. Although the Court of Appeals reversed the trial court on this question, it affirmed its decision allowing the County to adjust the permit application fee if Open Door could show that it was unable to pay the fee. Open Door sought discretionary review in this court and we granted it. We affirm the Court of Appeals.

FACTS

Open Door has used the Clark County property at issue here as a church since 1990. The building, which is located on the property, had originally been devoted to church purposes, but had been used as an art school from 1978 until first occupied by Open Door. There is no dispute over the fact that this property lies within the County’s rural estate zoning district.

On January 12, 1995, Open Door’s pastor, Rocky Shanks, was served with a notice and order from Clark County which gave notice of the following violation: “No Conditional Use Permit for church in Rural Estate (RE) Zoning District as per Clark County Code 18.304.” Clerk’s Papers (CP) at 42. Open Door was ordered “to cease all business activities or apply for a conditional use permit within ten (10) days from the date of this notice and order.” CP at 42 (emphasis added). Open Door appealed to the Clark County hearing examiner, arguing that the notice and order was “against the Constitution of the Great State of Washington and the United States Constitution which is the Supreme Law of the Land.” CP at 33.

In March 1995, a hearing was held by the hearing examiner at which witnesses testified both for and against the notice and order. The previous owner testified about a meeting that she had attended with Shanks and a Realtor in which the Realtor advised Shanks that “the building was not approved as a church, and that the County needed to issue a conditional use permit to use it as a church.” CP at 62. The hearing examiner concluded that he did “not have jurisdiction to consider state or federal constitutional issues or federal statutory issues,” and could base his decision only on applicable land use laws. CP at 62. He found that the property was being used as a church without the necessary conditional use permit, and that the use of the property as a church was not a nonconforming use “because the right to use the Property for a church as a nonconforming use expired when the Property was not used as a church from 1978 to 1990.” CP at 63 (emphasis added). Accordingly, the examiner affirmed the notice and order, finding that “sixty (60) calendar days ... is a reasonable time in which to file a technically complete application for a conditional use permit, because the Appellants [Open Door] already have participated in a pre-application conference.” CP at 63. The examiner ordered that in the event that Open Door failed to file an application by the 60-day deadline, Open Door’s use of the property as a church should cease and, should it continue, a daily fine of $50 would be imposed.¹

Open Door obtained review of the examiner’s decision through a writ of certiorari to the Clark County Superior Court, alleging that enforcement of the zoning regulations violated its federal and state constitutional rights to free exercise of religion. In April 1996, following oral argument, the superior court judge vacated the hearing examiner’s order, stating that “Clark County and the Code Enforcement Division of Clark County failed to observe the appropriate legal standards under City of Sumner v. First Baptist Church.”² CP at 181. The trial court found that “[w]hat is lacking from the county’s presentation ... is a showing that less restrictive alternatives to a full blown conditional use permit with site plan review were considered.” CP at 181. It held that were the County “to seek further enforcement in this action,” it would “bear the burden of complying with the Sumner standard, and, in the event that there ensues an appeal to a hearings examiner, bear the burden of proving such compliance.” CP at 181. Accordingly, the trial court found that the County would have “to justify its regulations by demonstrating a compelling state interest and that it has chosen the least-restrictive alternative to accomplish that result.” CP at 184. Moreover, the trial court held that “the necessity of charging the Church the customary fees and costs associated with a conditional use permit, variance or any other application must also be assessed by the County under the same compelling state interest/least-restrictive alternative test.” CP at 184.

The parties later stipulated “that the cost of land use permits ... is not an issue. The permit process is the issue. Therefore, to the extent that the church has alleged that cost is an issue, Plaintiffs abandon that position.”³ CP at 349 (emphasis added). Open Door then moved for summary judgment, in an effort to obtain monetary damages allegedly caused by “prior enforcement activities of the county.” CP at 351. It asserted that the County had violated “the U.S. Constitution — Freedom of Exercise clause; the Washington State Constitution Freedom of Religion clause; and the Religious Freedom Restoration Act of 1993.” CP at 350. The trial court partially granted Open Door’s motion “on the issue of whether or not the proposed shut-down of plaintiffs’ church . . . would constitute a burden on plaintiffs’ free exercise of religion, under the religious freedom provision of Section 1 of the Washington State constitution and under the Religious Freedom Restoration Act.” CP at 354 (emphasis added). It denied summary judgment, however, on “the issue of plaintiffs’ entitlement to monetary damages” — finding no evidence of “any monetary damages,” a finding premised upon the fact that Open Door had not even applied for a conditional use permit. CP at 358. The trial court subsequently withdrew the grant of partial summary judgment in light of City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), wherein the United States Supreme Court struck down the Religious Freedom Restoration Act of 1993.

The County appealed the trial court’s ruling vacating the hearing examiner’s order. In an unpublished opinion, a panel of the Court of Appeals, Division Two, reversed the trial court on the question of whether applying for a permit would infringe upon Open Door’s free exercise of religion. It held that the mere process of applying for a permit did not impose an unconstitutional burden, although it wrote that “[njothing in this decision will affect Open Door’s right to challenge the denial of the conditional use permit” should such a denial occur. Open Door Baptist Church v. Clark County, No. 22285-0-II, slip op. at 6 (Wash. Ct. App. June 26, 1998) (emphasis added). It further concluded that if Open Door should first demonstrate its inability to pay the application fee, the burden would shift “to the County to demonstrate a compelling purpose for charging the fees.” Open Door Baptist Church, No. 22285-0-II, slip op. at 7-8. Thus, it concluded, “the County must ensure that its fees do not burden Open Door’s worship.” Open Door Baptist Church, No. 22285-0-II, slip op. at 8.

We granted review upon Open Door’s petition for review.

ANALYSIS

The broad question that we are presented with here is whether the County’s order requiring Open Door to apply for a conditional use permit and pay the attendant fees, unconstitutionally burdens the church’s religious freedom guaranteed by article I, section 11 of the Washington Constitution. In light of the dissent in this case, we emphasize that we are not confronted in this case with the denial of a conditional use permit application, the anticipation of which animates the dissent. Rather, the case presents the question of whether a church must merely alert citizens and their government — through the conditional use application process — to its intention to locate in those zoned areas where churches, as is equally true of other uses, are not allowed as of right but are allowed to apply for conditional use status.

Under 18.303A.030 of the Clark County Code, churches are among the conditional uses listed for rural districts. Conditional uses are uses that “may be permitted, subject to the granting of a conditional use permit.” Clark County Code (CCC) 18.404.010. The purpose of the rural district, formerly known as the “rural estate” district, is defined as follows: “[T]o provide lands for residential living in the rural area. Natural resource activities such as farming and forestry are allowed and encouraged in conjunction with the residential uses in the area. These areas are subject to normal and accepted forestry and fanning [sic] practices.” CCC 18.303A.010. There is no reasonable dispute over the fact that this zoning is facially neutral with respect to churches.⁴ We have previously held that “[i]t is well established that zoning ordinances are constitutional in principle as a valid exercise of the police power.” State ex rel. Wenatchee Congregation of Jehovah’s Witnesses v. City of Wenatchee, 50 Wn.2d 378, 381, 312 P.2d 195 (1957) (citing State ex rel. Miller v. Cain, 40 Wn.2d 216, 242 P.2d 505 (1952); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016 (1926)). Moreover, “[governments may impose regulatory fees under their general police powers.” Covell v. City of Seattle, 127 Wn.2d 874, 878, 905 P.2d 324 (1995) (citing Margola Assocs. v. City of Seattle, 121 Wn.2d 625, 634-35, 854 P.2d 23 (1993); Wash. Const. art. XI, § 11)).

Nonconforming uses are disfavored under the law. See Christianson v. Snohomish Health Dist., 133 Wn.2d 647, 663, 946 P.2d 768 (1997); Anderson v. Island County, 81 Wn.2d 312, 323, 501 P.2d 594 (1972) (citing M.A. Leffingwell, Annotation, Zoning: Changes, After Adoption of Zoning Regulations, in Respect of Nonconforming Existing Use, 147 A.L.R. 167, 168 (1943)). “The policy of zoning legislation is to phase out a nonconforming use.” Anderson, 81 Wn.2d at 323 (citing Bartz v. Board of Adjustment, 80 Wn.2d 209, 492 P.2d 1374 (1972); State ex rel. Smilanich v. McCollum, 62 Wn.2d 602, 384 P.2d 358 (1963)). Where a nonconforming use is in existence at the time that a zoning ordinance is enacted, and thus allowed to continue, it “ ‘cannot be changed into some other kind of a nonconforming use.’ ” Coleman v. City of Walla Walla, 44 Wn.2d 296, 300, 266 P.2d 1034 (1954) (quoting approvingly 8 Eugene McQuillin, The Law of Municipal Corporations § 25.202, at 389 (3d ed. 1949)). Thus, even though the property in ques-. tion in this case was originally used as a church, it had been an art school for 12 years prior to Open Door’s purchase of it in 1990. Whatever original nonconforming use status it may have once enjoyed could not be passed along to Open Door.⁵

Const, art. I, § 11

Const, art. I, § 11 parallels the First Amendment’s religious Establishment and Free Exercise Clauses. At the threshold we note that determining whether the Washington Constitution provides broader rights than the United States Constitution generally proceeds only upon application by parties of the six nonexclusive factors laid out in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).⁶ We have written within the context of a seminal article I, section 11 case that “[i]f a party does not provide constitutional analysis based upon the factors set out in Gunwall, the court will not analyze the state constitutional grounds in a case.” First Covenant Church v. City of Seattle, 120 Wn.2d 203, 224, 840 P.2d 174 (1992) (First Covenant II) (citing Clark v. Pacificorp, 116 Wn.2d 804, 829, 809 P.2d 176, superseded by 118 Wn.2d 167, 822 P.2d 162 (1991)); see also State v. Motherwell, 114 Wn.2d 353, 368-69, 788 P.2d 1066 (1990) (declining to reach claim under Const, art. I, § 11 where Gunwall factors not analyzed). In this case, Open Door has not referred to Gun-wall in any of its briefs, nor has it made any analysis distinguishing Const, art. I, § 11 from the First Amendment. However, because we are reviewing decisions by the trial court and the Court of Appeals that relied upon Const. art. I, § 11 analyses, we will assess this case in light of Const, art. I, § 11,⁷ which we have determined “absolutely protects the free exercisé of religion, extends broader protection than the first amendment to the federal constitution.” First Covenant II, 120 Wn.2d at 229-30 (emphasis added).

We have previously stated that “[t]he first prerequisite for any free exercise challenge is that the parties have a sincere religious belief.” Munns v. Martin, 131 Wn.2d 192, 199, 930 P.2d 318 (1997). The County does not argue that Open Door is not the embodiment of a sincere religious belief.

We have also noted that “[t]he second question for analysis is whether the challenged enactment or action constitutes a burden on the free exercise of religion.” Munns, 131 Wn.2d at 200. In assessing the right to religious freedom in this state, we have said:

“Article 1, section 11 of the state constitution absolutely protects ‘freedom of conscience in all matters of religious sentiment, belief, and worship’ and guarantees that ‘no one shall be molested or disturbed in person or property on account of religion.’ This constitutional guaranty of free exercise is ‘of vital importance.’ Bolling [v. Superior Court], 16 Wn.2d [373] at 381 [(1943)]. If the ‘coercive effect of [an] enactment’ operates against a party ‘in the practice of his religion’, it unduly burdens the free exercise of religion. Witters v. Comm’n for the Blind, 112 Wn.2d 363, 371, 771 P.2d 1119, cert. denied, 493 U.S. 850 (1989); [City of] Sumner [v. First Baptist Church], 97 Wn.2d [1] at 5 [(1982)]. A facially neutral, even-handedly enforced statute that does not directly burden free exercise may, nonetheless, violate article 1, section 11, if it indirectly burdens the exercise of religion. Sumner, at 7-8; Bolling, at 385-86.”

Munns, 131 Wn.2d at 200 (quoting First Covenant II, 120 Wn.2d at 226) (alterations in original). We have indicated that “if an enactment does create a burden, the courts must analyze if the burden is offset by a compelling state interest.” Munns, 131 Wn.2d at 200.

The trial court and Open Door have placed great weight upon our opinion in City of Sumner v. First Baptist Church, 97 Wn.2d 1, 639 P.2d 1358 (1982), which the County contends is a holding based entirely upon the First Amendment. It is true that Sumner, despite a passing mention at its outset of a Const, art. I, § 11 claim, is a holding based exclusively upon a First Amendment analysis using opinions from the United States Supreme Court and courts from other states. See, e.g., Sumner, 97 Wn.2d at 10 (remanding and writing that “[t]he trial court should consider the practical effect uncompromising enforcement of the City’s building code and zoning ordinance will have on appellants’ First Amendment rights.” (emphasis added)).

Sumner predated the Gunwall decision in which we adopted the analytical framework for conducting independent state constitutional analysis. However, we have subsequently cited Sumner to illustrate principles under Const. art. I, § 11. See First Covenant II, 120 Wn.2d at 226-27. Thus, it is also a decision supportable under Const, art. I, § 11 — an important fact given that its First Amendment analysis, under the compelling interest test of Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), is no longer viable. See Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).

In Sumner, the City of Sumner found violations of its building code by a church-operated school, and the trial court “enjoined use of the building for school purposes until such time as it is brought into compliance with the code.” Sumner, 97 Wn.2d at 4. Sumner relied upon language from a United States Supreme Court opinion:

“[A]ny incidental burden on the free exercise of appellant’s religion may be justified [only] by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power . . .’ ” (Italics ours.) Sherbert v. Verner, 374 U.S. 398, 403, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963). The fundamental tenet involved need not be directly impacted for the regulation to be constitutionally infirm.

Sumner, 97 Wn.2d at 7-8 (alterations in original).

Under our use of the Sherbert test, after the complaining party first establishes that a governmental action has a coercive effect upon the practice of religion,⁸ the State must identify “whether the means chosen to enforce the governmental interest were necessary and the least restrictive available to achieve the ends sought.” Sumner, 97 Wn.2d at 8 (citing Sherbert, 374 U.S. at 407; Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)). In Sumner, four justices found that “it cannot be determined whether the City used the least restrictive means of achieving its compelling interest.” Sumner, 97 Wn.2d at 9. Justice Utter concurred in the views expressed by these justices. See Sumner, 97 Wn.2d at 14-15 (Utter, J., concurring). While a majority supported the result of dissolving the injunction and remanding to the trial court for full consideration of the church’s First Amendment claims, they did so for different reasons. See, e.g., Sumner, 97 Wn.2d at 15 (Williams, J, concurring) (“I would not. . . impose the rigorous standards suggested by the majority in areas such as this which do not directly impact the right to freely practice one’s religion.”).

The County points out that in Sumner, unlike here, the subject church had been lawfully located in a residential section of Sumner for a continual 75 years. However, the Uniform Building Code, which allowed for “grandfathered” nonconforming uses that were legal and existing at the time of its enactment, was only adopted by the City of Sumner in 1974. See Sumner, 97 Wn.2d at 11. The question, therefore, was whether the church’s use of its property for school purposes was a permissible, nonconforming use under these terms of the City of Sumner’s building code and the similar language of its zoning code, which also allowed for the “continuation of nonconforming uses existing at the time the zoning ordinance was adopted.” Sumner, 97 Wn.2d at 13. Relevant to this case was the fact that Sumner remanded the resolution of this question to the trial court, and we noted, without a hint of opprobrium, that “zoning would preclude church use of this property as a school, or even as a church, if an exception did not apply.” Sumner, 97 Wn.2d at 13.

Thus, Sumner does not support Open Door’s position in this case, where Open Door seeks to avoid even applying for a permit that would allow an otherwise disallowed use. Moreover, the Court of Appeals opinion in this case, quite unlike the injunction complained of in Sumner, allows Open Door to continue its operation pending resolution of its conditional use permit application. “In Sumner, First Baptist Church applied for a permit for its church school and was denied because of technical violations having no effect on public safety. ... In this case, however, Open Door did not apply for a permit and has not been denied.”⁹ Open Door Baptist Church, No. 22285-0-II, slip op. at 5 (emphasis added). The Court of Appeals went on to note that “Clark County cannot accommodate Open Door and balance those zoning requirements that do affect public safety and health with Open Door’s religious practice if Open Door may simply ignore the zoning requirements altogether by failing to apply for a permit.” Open Door Baptist Church, No. 22285-0-II, slip op. at 5. The Court of Appeals correctly concluded that the County has not run afoul of our decision in Sumner.

This decade has seen a trilogy of cases involving Const. art. I, § 11 challenges concerning the imposition of municipal historic preservation ordinances upon churches. See Munns, 131 Wn.2d 192; First United Methodist Church v. Hearing Exam’r, 129 Wn.2d 238, 916 P.2d 374 (1996); First Covenant Church v. City of Seattle, 114 Wn.2d 392, 787 P.2d 1352 (1990) (First Covenant I), vacated and remanded, 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d 208 (1991), judgment reinstated, First Covenant II, 120 Wn.2d 203. First Covenant I involved the application of the City of Seattle’s Landmarks Freservation Ordinance to a church. In First Covenant II we noted that such “[preservation ordinances further cultural and aesthetic interests, but they do not protect public health or safety.” First Covenant II, 120 Wn.2d at 222 (citing Society of Jesus v. Boston Landmarks Comm’n, 409 Mass. 38, 564 N.E.2d 571, 573 (1990); Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 496 N.E.2d 183, 202, 505 N.Y.S.2d 24 (1986) (Meyer, J., dissenting)). We found that the effect of Seattle’s ordinances was to “burden First Covenant financially, because they reduce the value of the church’s property by almost half.” First Covenant II, 120 Wn.2d at 219 (emphasis added). We held that under both the state and federal constitutions “[t]he City’s interest in preservation of aesthetic and historic structures is not compelling and it does not justify the infringement of First Covenant’s right to freely exercise religion. The possible loss of significant architectural elements is a price we must accept to guarantee the paramount right of religious freedom.” First Covenant II, 120 Wn.2d at 223.

The same City of Seattle Landmarks Preservation Ordinance, under similar facts, was at issue in both First Covenant and First United Methodist Church. In First United Methodist Church, the financial burden was similarly onerous. There we wrote that “[wjhile not all financial burdens have a coercive effect. . ., gross financial burdens violate the right to free exercise.” First United Methodist Church, 129 Wn.2d at 249 (citing First Covenant II, 120 Wn.2d at 219). The financial burden complained of there was the fact that “[ljandmark nomination . . . has prevented United Methodist from either remodeling its sanctuary or selling the church property.” First United Methodist Church, 129 Wn.2d at 244-45. Again, that burden was being imposed simply for aesthetic and cultural reasons, and, “[a]s a result of First Covenant I, landmark designation will be found unconstitutional once a religious institution demonstrates a burden on free exercise.” First United Methodist Church, 129 Wn.2d at 247.

Normally, with regard to potential harm, we would say that “[a] decision at this time would be advisory only. Although courts in some states do render advisory opinions, we do not do so in this jurisdiction.” Walker v. Munro, 124 Wn.2d 402, 414, 879 P.2d 920 (1994) (citing Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 164, 80 P.2d 403 (1938)). In other words, “this court will not render judgment on a hypothetical or speculative controversy.” Walker, 124 Wn.2d at 415. However, Open Door refers us to language in Munns¹⁰ that suggests another rule in article I, section 11 cases: “In our cases, the potential burden of an ordinance creates constitutional infirmity.” Munns, 131 Wn.2d at 207.

Munns involved the application of a City of Walla Walla demolition ordinance that provided for a waiting period where demolition was sought for “any structure over 50 years old, or ‘places of historic value.’ ” Munns, 131 Wn.2d at 202 (quoting Walla Walla Municipal Code 20.146.040). The actual delay ordered in Munns upon application by the Roman Catholic Church to demolish a parochial school was 70 days, but we found that “the potential of an additional 12 months of delay under the Walla Walla ordinance is an administrative burden.” Munns, 131 Wn.2d at 207. To illustrate the breadth of this rule, we cited the fact that “[t]he mere nomination of a building for historic status was sufficient in First United Methodist to constitute an administrative burden.” Munns, 131 Wn.2d at 207. We noted that Justice Dolliver in his First United Methodist Church dissent had decried “the theoretical nature of the administrative burden” of the Seattle ordinance challenged there. Munns, 131 Wn.2d at 207 (citing First United Methodist Church, 129 Wn.2d at 253 (Dolliver, J., dissenting)).

However, our citation to Justice Dolliver’s dissent in Munns was not to suggest that it was the law of First United Methodist Church. The majority in that case, after all, found that “[u]nder the Landmarks Preservation Ordinance, nomination alone carries with it severe restrictions.” First United Methodist Church, 129 Wn.2d at 244 (emphasis added). Chief among the actual, and not just “theoretical,” restrictions identified was the fact that even nomination for landmark designation “impedes United Methodist from selling its property and using the proceeds to advance its religious mission.” First United Methodist Church, 129 Wn.2d at 252. Moreover, to the extent that the justiciability bar has been lowered in article I, section 11 cases with regard to potential harm, it has been lowered only in a fact-specific context — where an imposition is placed upon a church’s free exercise of religion entirely for cultural or aesthetic (e.g., historic landmark designation), and not compelling, reasons. Munns is thus distinguishable. Indeed, counsel for the City of Walla Walla conceded in that case that no “compelling state interest” for the challenged ordinance existed. Munns, 131 Wn.2d at 209. Similarly, in First United Methodist Church, after we had found no compelling interest in landmark preservation under the same ordinance in First Covenant II, the City of Seattle conceded that it had no compelling interest in landmark preservation. See First United Methodist Church, 129 Wn.2d at 250. No such finding or concession guides our analysis in this case.

In the present case, the potential harm would seem to be too attenuated from the process of which Open Door complains. What is the “burden on the free exercise of religion” that Open Door has identified? Munns, 131 Wn.2d at 200. It speculates, based upon the testimony before the hearing examiner of a county official, without more, that a conditional use permit would probably not be granted. It writes that “the Church is being coerced into ceasing its mission and meeting for corporate worship because it fails to have a conditional use permit. The burden, therefore, is clear.” Resp’ts’ Br. at 11. Actually, this burden is quite zmclear. The peril that Open Door predicts will come to pass is just a prediction. With regard to this claim, the County is wholly correct that Open Door must still exhaust its administrative remedies. See First Covenant I, 114 Wn.2d at 400 (“The Church has exhausted its administrative remedies and the only forum now available for appeal is the judicial system.” (emphasis added)).

Open Door makes the additional argument that “[i]f there is no compelling interest in a government restricting a church in its ability to alter a church body, there must be no compelling interest in restricting a church from existing in the first place.” Resp’ts’ Br. at 20-21. This is an over-broad statement, though, of both of our holdings and of what is at stake in this case. We did not say, for example, in Munns that the Roman Catholic Church was somehow free to destroy its parochial school without obtaining any demolition permit, but instead held that the conceded absence of a compelling state interest meant that there was no support for burdening religious free exercise through the delay in the issuance of a permit for aesthetic reasons alone. Indeed, Munns expressly did not pass upon any of the “traditional physical environmental factors such as air, water, traffic, or the like” that are attendant to a zoning decision. Munns, 131 Wn.2d at 209 n.5. As the Court of Appeals in this case noted, unlike the situation in Munns, here “[t]here is no waiting period imposed in the Clark County Code and, if the County approved the permit, then Open Door’s right to meet and worship on the property will not have been abridged.” Open Door Baptist Church, No. 22285-0-II, slip op. at 6. Under the decision of the Court of Appeals, Open Door is allowed to continue its operations unimpeded pending resolution of its conditional use permit application, given that the County failed to demonstrate a compelling state interest that would be offended by such interim operation.¹¹ See Munns, 131 Wn.2d at 200. Thus, Munns is simply inapposite.

Open Door also argued before the Court of Appeals that the cost of compliance, an estimated $5,523 to apply for the conditional use permit, is a financial burden. Open Door cannot renew this complaint in light of the Court of Appeals resolution of this issue,¹² requiring the County to reduce or waive the fee following a showing of an inability to pay by Open Door,¹³ and thus its circumstances are distinguishable from the financial burdens identified in First Covenant II and First United Methodist Church. Without this component, however, Open Door’s “burden” argument upon petition for review is a bit threadbare and based upon little more than the inconvenience of filling out paperwork. It is left to make overbroad assertions that, perhaps unintentionally, reveal the implications of what a holding in its favor would signify: “Absent a valid state interest in reasonable health, fire and safety standards, there is no compelling reason to require a church to make application for a conditional use permit.” Pet. for Review at 8. Most succinctly this reduces to “[a]bsent a health, fire and safety standard, there is no compelling reason to regulate where a church should be located.” Pet. for Review at 8. In practical effect, Open Door and the dissenters to this opinion are inviting us to find that zoning restrictions do not apply to churches, despite the fact that we “simply do not possess the power to amend zoning ordinances or to rezone a zoned area, and . . . cannot and should not invade the legislative arena or intrude upon municipal zoning determinations, absent a clear showing of arbitrary, unreasonable, irrational or unlawful zoning action or inaction.” Bishop v. Town of Houghton, 69 Wn.2d 786, 792-93, 420 P.2d 368 (1966) (emphasis added) (citing State ex rel. Gunning v. Odell, 58 Wn.2d 275, 362 P.2d 254 (1961); McNaughton v. Boeing, 68 Wn.2d 659, 414 P.2d 778 (1966)).

First Amendment

As we have done in all other Const, art. I, § 11 cases, we can also look to the reasoning of opinions construing the Free Exercise Clause of the First Amendment for persuasive guidance. Those cases can be looked upon as constituting a floor of protections below which we cannot descend, but they do not limit our ability to build upon them in construing our own constitution’s more expansive guarantee of religious free exercise.¹⁴

The United States Supreme Court has placed limitations upon the use of the Sherbert test in First Amendment cases:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied. In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all.

Smith, 494 U.S. at 883 (citations omitted). “The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability.” City of Boerne, 521 U.S. at 513. Accordingly, “Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U.S. 507, 514, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997). As the Court noted in Smith: “[T]o say that a nondiscriminatoiy religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts.” Smith, 494 U.S. at 890. The Court warned against “a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” Smith, 494 U.S. at 890.

Congress subsequently attempted to overrule Smith by passing the Religious Freedom Restoration Act of 1993 (RFRA), the stated purpose of which was “ ‘ “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” ’ ” City of Boerne, 521 U.S. at 515 (emphasis added) (quoting 42 U.S.C. § 2000bb(b)(l)). The United States Supreme Court struck this act down on the basis that it was beyond the power of Congress to enact. See City of Boerne, 521 U.S. 507. The facts there were that the City of Boerne, Texas, had denied a church’s permit application in which the church sought to enlarge its church. In not issuing the permit, the city had relied upon a preservation “ordinance and the designation of a historic district (which, they argued, included the church).” City of Boerne, 521 U.S. at 512. The church alleged that this violated the RFRA. However, the United States Supreme Court found this act to be unconstitutional, and used language directly relevant to this case in doing so:

It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.

City of Boerne, 521 U.S. at 535. Moreover, the Court further conveyed its disapproval of misuse of the Sherbert test, noting that the “least restrictive means requirement . . . was not used in the pre-Smith jurisprudence RFRA purported to codify.” City of Boerne, 521 U.S. at 535 (emphasis added). In striking down the RFRA it noted that Congress could not defy “a judicial interpretation of the Constitution already issued.” City of Boerne, 521 U.S. at 536.

Prior to Boeme, the United States Supreme Court had already vacated and remanded, in light of its holding in Smith, an opinion of this court that had relied heavily upon Sherbert in holding unconstitutional the application of a Seattle landmark ordinance to a church. See First Covenant I, 114 Wn.2d 392. Upon remand, we conceded that the rule of Smith “applies in both civil and criminal cases and may apply in this case if the City’s preservation ordinances are neutral and generally applicable.” First Covenant II, 120 Wn.2d at 213. We were able to distinguish Smith, though, because Smith “is a police power case and this case is not.” First Covenant II, 120 Wn.2d at 218. Accordingly, in First Covenant II we returned to our prior use of the Sherbert test and applied it to the facts before us. However, Sumner, it should be noted, was a police power case involving “the police power of the City of Sumner.” Sumner, 97 Wn.2d at 5. Thus the First Amendment underpinnings of that decision are untenable.

Opinions from those courts charged with the everyday application of First Amendment law, the. federal circuit courts of appeals, are instructive and demonstrate that the County’s action here would pass muster. The Ninth Circuit Court of Appeals has upheld the denial of a conditional use permit where an attempt was made to establish a church in a residential neighborhood. See Christian Gospel Church, Inc v. City & County of San Francisco, 896 F.2d 1221 (9th Cir. 1990). The Ninth Circuit wrote that “[t]he burdens imposed by this action are ... of convenience and expense, requiring appellant to find another home or another forum for worship. We find that the burden on religious practice in this zoning scheme is minimal.” Christian Gospel Church, 896 F.2d at 1224. In contrast, “[a] zoning system ‘protects the zones’ inhabitants from problems of traffic, noise and litter, avoids spot zoning, and preserves a coherent land use zoning plan.’ ” Christian Gospel Church, 896 F.2d at 1224 (quoting Grosz v. City of Miami Beach, 721 F.2d 729, 738 (11th Cir. 1983)). The Ninth Circuit wrote that “[t]hese concerns are particularly strong in this case since the Church is applying for nonresidential use in a residential neighborhood. San Francisco has a strong interest in the maintenance of the integrity of its zoning scheme and the protection of its residential neighborhoods.” Christian Gospel Church, 896 F.2d at 1224 (citing City of Memphis v. Greene, 451 U.S. 100, 127, 101 S. Ct. 1584, 67 L. Ed. 2d 769 (1981); Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974)). Accordingly, “the burden on religious practice . . . does not warrant an exemption from the zoning scheme.” Christian Gospel Church, 896 F.2d at 1225.

The Tenth Circuit Court of Appeals has upheld the denial of a special-use permit where a permit was sought to build a church building on property belonging to the church in an area zoned for agricultural use. See Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988). Similar to our case, churches were expressly among the exceptions to a county’s zoning regulation allowed by special-use permit. The Tenth Circuit held that “Megulation of the location of church construction is not an impediment to religious observance in the sense of a prohibition,” for the church was still free to worship — even though, “[a]rguably, the zoning regulations affect secular activity and make the practice of religion more expensive, and therefore impose an indirect burden on the exercise of religion.” Messiah Baptist Church, 859 F.2d at 825. This case predated Smith, so the court even applied the Sherbert test in upholding the county’s permit denial by

consider[ing] whether an alternative means exists whereby the County may accomplish its purpose by means which do not impose an indirect burden. Without question, the zoning district plan, one of true differentiation and upheld as sound under . . . due process analysis, cannot be implemented effectively without-the resulting financial burden on the Church.

Messiah Baptist Church, 859 F.2d at 825. The Tenth Circuit concluded that, “[i]n short, there is no infringement of the Church’s religious freedom. A church has no constitutional right to be free from reasonable zoning regulations nor does a church have a constitutional right to build its house of worship where it pleases.” Messiah Baptist Church, 859 F.2d at 826 (citing Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971)).

The Sixth Circuit Court of Appeals has upheld the denial of an exception to a residential zoning ordinance where a church sought to build a church building on land that it had purchased. See Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983). In this pre-Smith case the Sixth Circuit even applied the exacting Sherbert test in finding that “[a]t most the Congregation can claim that its freedom to worship is tangentially related to worshipping in its own structure. However, building and owning a church is a desirable accessory of worship, not a fundamental tenet of the Congregation’s religious beliefs.” Lakewood, 699 F.2d at 307. The court wrote that “[t]he ordinance prohibits the purely secular act of building anything other than a home in a residential district.” Lakewood, 699 F.2d at 307. It made the following finding:

No pressure is placed on the Congregation to abandon its beliefs and observances. While it is true that the Congregation would face penalties if it began building on the proposed site, the penalties would not have the purpose or the effect of dissuading the Congregation from practicing its faith. In short, the burdens of the ordinance are the increased cost of purchasing land and the violation of the Congregation’s aesthetic senses, if the Congregation chooses to build a new church in Lakewood.

Lakewood, 699 F.2d at 307. Accordingly, under the Sherbert test the Sixth Circuit found that “[t]he answer to the threshold question is that there is no infringement of religious freedom.” Lakewood, 699 F.2d at 308 (emphasis added).

In sum, the much more significant impacts upon religious free exercise countenanced by the federal courts clearly belie the dissent’s exaggerated assertion that we are endorsing “an absolute prohibition unlike any which we have seen before.” Dissenting op. at 174. The dissent’s means of distinguishing these similar First Amendment religious free exercise cases is to ignore them. Instead the opinion resorts to quoting general statements from an inapposite First Amendment freedom of expression case, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969), and a law student’s article. See Dissenting op. at 181, 185 n.26, 196-97.

Discussion

Under both Const, art. I, § 11 and the First Amendment, Open Door has simply not met its threshold requirement of establishing that Clark County’s actions caused anything more than an incidental burden upon the free exercise of religion. Even if it had, the County appears to be correct when it writes that “[t]here is no less restrictive alternative to requiring Open Door Baptist Church to file applications and follow the administrative process.” Resp’ts’ Supplemental Br. at 13. After all, “[i]f churches are not [even] subject to the application process, they will be largely exempt from zoning and other land use codes as a practical matter.” Resp’ts’ Supplemental Br. at 14 (emphasis added). The necessity or validity of zoning as an exercise of police power, something a bit more substantive than landmark preservation, cannot be in serious question.

The dissent writes that “Clark County attempts to zone Open Door out of existence by use of the conditional use permit process.” Dissenting op. at 196. This is no more true than an assertion that the County is attempting to zone “out of existence” cemeteries, most schools, golf courses, kennels, riding stables, recreational facilities, veterinary clinics, government facilities, private ambulance dispatch facilities, or residential care homes simply because their establishment in rural districts is also contingent upon the granting of a conditional use permit. See CCC 18.303A.030. The permit requirement applies equally to these uses. This, of course, is not to say — as the dissent suggests — that we somehow elevate dog kennels to the same constitutional status as churches. Rather, what these conditional uses all undeniably have in common is the fact that they are not “[n]atural resource activities such as farming and forestry” exempted from the zoning district’s purpose to “provide lands for residential living in the rural area.” CCC 18.303A.010. Even the dissent, after all, cannot argue that a church is a residence, a farm, or a forest.

The paperwork “burden” of the permitting process, as detailed in an epic footnote in the dissent, see Dissenting op. at 186 n.28, is no less for secular uses than that imposed upon Open Door. Yet, curiously, the dissent makes no claim that the ordinance is also “openly and expressly hostile[,]” Dissenting op. at 194, to, say, residential care homes. The dissent would apparently have us believe that such secular land uses were made subject to conditional use permits only in order to mask Clark County’s sinister “antireligious inquisition.” Dissenting op. at 196. As for the “burden” imposed upon conditional uses, much of the information in the bound volumes of information that Open Door must submit consists of materials (e.g., maps) prepared and provided by the County itself. See CCC 18.404.025-.030. Surely this cannot reasonably be likened to religious persecution “practiced in some totalitarian nations.” Concurrence in Dissent at 172. In truth, the potential injury to Open Door (i.e., closure) that the dissent assumes will occur is possible only because Open Door first opened its doors before seeking permission to do so. It set up this possibility through an undeniable zoning violation and now complains of the opportunity it has been given to avoid closure.

We agree with the Tenth Circuit Court of Appeals that “[a] church has no constitutional right to be free from reasonable zoning regulations.” Messiah Baptist Church, 859 F.2d at 826. Where does Open Door’s position lead us? Under its position and that of the dissent, would churches within the City of Seattle be able to require Seattle City Light to make an individualized showing of “whether the means chosen to enforce the governmental interest were necessary and the least restrictive available to achieve the ends sought,” Sumner, 97 Wn.2d at 8, when that public utility seeks to collect on a church’s power bill?

Resonant through the dissent’s rhetoric is an animus not so much toward the zoning at issue here but toward zoning itself, or, as the dissent calls it, “state coercion backed by naked force.” Dissenting op. at 199. This, then, takes on the appearance of refighting battles already lost. See, e.g., Development Servs. of Am., Inc. v. City of Seattle, 138 Wn.2d 107, 121-33, 979 P.2d 387 (1999) (Sanders, J., dissenting to 8-1 decision upholding city’s denial of conditional use permit for rooftop helistop). Let us recognize the extraordinary implications of the dissent’s viewpoint. Under its position, a church would be free to construct a church building of apparently unlimited size in a residential neighborhood, without having to go through a process in which neighbors receive notification and an opportunity to be heard at a hearing.¹⁶ Requiring the church to go through such an open, public process, the dissent asserts, would risk “potential tyranny.” Dissenting op. at 176. According to the dissent, so long as basic “health and safety ordinances of general application” were complied with by that church, Dissenting op. at 195, the residential character of a neighborhood would he irrelevant, just as the rural residential nature of the zoning district in this case is immaterial to the dissent. Thus, for example, one could choose to five in a neighborhood for its entirely residential nature, wake up one morning and find that all other houses on one’s block had been replaced by church buildings, and he left without any recourse. This could be so because, as the dissent argues, the values inherent in zoning are irrelevant, unless “peace and safety” are “compelling[ly]” infringed upon. Dissenting op. at 195.

We cannot subscribe to the dissent’s view. The better approach, we think, is one advanced in First Covenant I by a noted guardian of religious free exercise, Justice Robert Utter, wherein he advocated that “we ought to require a very specific showing of hardship to justify exemption from land use restrictions in the future.” First Covenant I, 114 Wn.2d at 415 (Utter, J., concurring). This is in keeping with the fact that, as stated before, we “simply do not possess the power to amend zoning ordinances or to rezone a zoned area, and . . . cannot and should not invade the legislative arena or intrude upon municipal zoning determinations, absent a clear showing of arbitrary, unreasonable, irrational or unlawful zoning action or inaction.” Bishop, 69 Wn.2d at 792-93 (emphasis added).

Contrary to the dissent’s claims, the centrality of religious free exercise among the protections enshrined by our state constitution is undisputed, and quite undiminished, by the very limited scope of this opinion. We simply observe that a

“tension inevitably exists between the Free Exercise and the Establishment Clauses and ... it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of ‘neutrality,’ neither ‘advancing’ nor ‘inhibiting’ religion.”

Kallas v. Department of Motor Vehicles, 88 Wn.2d 354, 358, 560 P.2d 709 (1977) (quoting Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973)). We find that the Court of Appeals in this case struck a reasonable balance on that delicate scale between the rights of the County and those of Open Door when it reversed that part of the trial court’s ruling exempting Open Door from applying for a conditional use permit, while affirming that part of the ruling which required the County to “ensure that its [application] fees do not burden Open Door’s worship” should Open Door demonstrate that such a burden would otherwise be present. Open Door Baptist Church, No. 22285-0-II, slip op. at 8. To agree with Open Door and the dissent in this case would add too much weight on one side of the scale that Kallas describes, for Open Door simply has not shown how the application process alone unconstitutionally burdens its religious free exercise. “ ‘ “[T]he measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” ’ ” Lee v. Weisman, 505 U.S. 577, 598, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992) (quoting School Dist. v. Schempp, 374 U.S. 203, 308, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (Goldberg, J., concurring)).

CONCLUSION

In conclusion, Open Door must comply with Clark County’s conditional use application process. Unlike the dissent, we are not allowed to rule on the hypothetical outcome of this process, see Walker, 124 Wn.2d at 415, and can say only that Open Door might yet prevail in a free exercise claim if the conditional use permit it must seek is denied.¹⁶ Finally, we agree with the Court of Appeals that Open Door should be permitted to use its building as a church during the permit process. The Court of Appeals is affirmed.

Guy, C.J., Johnson, Madsen, Talmadge, and Ireland, JJ., and Kennedy, J. Pro Tem., concur.

1 The examiner also identified various conditions that “pose an imminent threat to public health, safety and welfare” and ordered remedies (e.g., fire and health inspection of the well and septic system) which were not subject to later appeal by Open Door. CP at 64.

2 97 Wn.2d 1, 639 P.2d 1358 (1982).

3 Open Door would later assert that “[t]he waiver of the issue of finances related only to the civil rights claim for damages,” although no such restriction is apparent on the face of the stipulation. Resp’ts’ Br. at 24.

4 The dissent would have us reach an issue not raised in this case, by arguing that “to establish a church use anywhere in Clark County . . . religious practitioners must first submit to an expensive and extremely detailed permitting process of doubtful outcome administered wholly at the discretion of secular authorities.” Dissenting op. at 184-85 (emphasis added); see also Dissenting op. at 184 (referring to a “countywide prohibition” on “all new churches lacking a conditional use permit” (emphasis added)); Dissenting op. at 195 (referring to the County’s “refusal to exempt Open Door from the conditional use permit requirement it imposes on each and every church across the county” (emphasis added)). Not only is this not an issue in this case, see RAP 13.7(b), but it is incorrect and contradicted in one sentence of the text and in a footnote in the dissent itself, which contains the rhetorically inconvenient concession that the current Clark County Code allows “churches without a conditional use permit in several zones.” Dissenting op. at 184 n.25 (citing CCC 18.313.020). To dispel some hyperbole, it is worth noting that the “antireligious inquisition” in Clark County that the dissent accuses us of sanctioning, Dissenting op. at 196, has apparently been quite unsuccessful, the Clark County/Vancouver telephone directory containing over 200 listings for churches or synagogues.

5 Open Door does not renew in its petition for this court’s review its earlier claim, rejected by the Court of Appeals, that “[wjhere the County allows a nonconforming use of the building as an art school/studio without a conditional use permit and then allows the church to be a nonconforming use for five years, without permit, then the County should be estopped from asserting a violation of the conditional use permit code.” Resp’ts’ Br. at 22-23. The County has, however, informed the church, as part of the conditional use permit preapplication process, that “[t]he historic status of the church may be influential in meeting the variance criteria, in justifying an ‘unusual circumstance’ that applies to the property.” CP at 107.

6 But see State v. White, 135 Wn.2d 761, 958 P.2d 982 (1998). In White we concluded, in light of guidance from a wealth of cases differentiating Const, art. I, § 7 from the Fourth Amendment, that “[ojnce we agree that our prior cases direct the analysis to be employed in resolving the legal issue, a Gunwall analysis is no longer helpful or necessary.” White, 135 Wn.2d at 769. However, we added the caveat that “[a] Gunwall analysis is nevertheless required in cases where the legal principles are not firmly established.” White, 135 Wn.2d at 769 n.7. This is certainly such a case.

7 Const. art. I, § 11, in relevant part, provides as follows:

“Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.”

8 First United Methodist Church v. Hearing Exam’r, 129 Wn.2d 238, 246, 916 P.2d 374 (1996). This step went unmentioned in Sumner, which appeared to merely assume (not unreasonably, in light of the injunction) that the threshold coercive effect was present.

9 Open Door quarrels with this reading of Sumner, but its own interpretation does not in any way contradict the facts as recounted by the Court of Appeals. See Pet. for Review at 6; see also Sumner, 97 Wn.2d at 17-18 (Dolliver, J., dissenting) (explaining facts regarding church’s special use permit application).

10 Munns is an especially important case for purposes of Const, art. I, § 11 analysis, because we analyzed the issues in Munn exclusively under Const. art. I, § 11, despite the fact that the First Amendment was also raised. See Munns, 131 Wn.2d at 199 n.3 (citing State v. Hendrickson, 129 Wn.2d 61, 69, 917 P.2d 563 (1996)).

11 Although it is not expressly stated in the Court of Appeals unpublished opinion, see Dissenting op. at 198 n.34, we find that the practical effect of the decision is to vacate the portion of the hearing examiner’s order limiting hours of operation, which the dissent points out might have had the effect of prohibiting midnight services on Christmas Eve or Easter sunrise services.

12 It appears as though Open Door is revisiting this issue in its petition for review when it writes:

“The Court of Appeals ruled that the church should make application for a conditional use permit, the county may waive its fees, but the church must justify waiver of the fees. This the Court of Appeals does without any authority.

“. . . Here, at the trial court, it was contended by the church that the financial burden would be a prior restraint on religious conduct because the church state interest, where there is no authority justifying a state interest at this time.” Pet. for Review at 10-11. Frankly, whatever argument is being made here is incomprehensible.

13 An inability to pay argument has always been the lesser of Open Door’s arguments, as evidenced by its earlier stipulation “that the cost of land use permits ... is not an issue. The permit process is the issue.” CP at 349 (emphasis added).

14 See First Covenant II, 120 Wn.2d at 234 (Utter, J., concurring) (“A truly independent state constitutional discourse cannot occur if we resort solely to federal jurisprudence in defining rights protected under our state constitution.” (emphasis added)) (citing James A. Gardner, The Failed Discourse of State Constitutionalism., 90 Mich. L. Rev. 762 (1991-92)).

16 In a statement with overbroad implications, the dissent asserts that we “would precondition the right of worship to a neighborhood public hearing.” Dissenting op. at 176. Again, we are not reaching the question of what would happen if the result of this public process were a denial of the church’s conditional use permit. However, even in the abstract, it is worth noting that the “right of worship” is always intact, quite apart from the settings in which it might be exercised. As the United States Supreme Court has written, “[i]f there is any-fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628, 147 A.L.R. 674 (1943). Moreover, this court, time and again, has proven its willingness to confront the sort of raw majoritarianism that the dissent fears might result in the denial of a church’s conditional use merely because its message is unpopular. See, e.g., State ex rel. Bolling v. Superior Court, 16 Wn.2d 373, 133 P.2d 803 (1943) (overturning, as a violation of Const, art. I, § 11, a trial court ruling removing three minor children from their parents’ custody for not obeying, due to their religious upbringing as Jehovah’s Witnesses, a state law requiring public school students to pledge allegiance to the United States flag).

16 Should that day occur, it is, of course, quite implausible to suggest, as the dissent does, that this court would analyze the denial of a conditional use permit for a church in the same fashion that it would analyze the denial of such a permit for a dog kennel or other conditional use. See Dissenting op. at 199 n.37. Religious free exercise remains an area around which government must tread very lightly. Precedent makes it clear that closure of a church would require a compelling state interest. See Sumner, 97 Wn.2d 1 (in absence of a compelling state interest, dissolving injunction preventing use of church-operated school).