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St. Thomas Law Review

First Page

157

Document Type

Article

Abstract

Mr. Justice Holmes, speaking for the Supreme Court in Schenck v. United States, stated: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." Today we revisit this theme in the context of a religious organization's right to build its houses of worship in neighborhoods whose elected representatives have determined are inappropriate locations for churches and synagogues. Does a religion have the right to disregard general zoning laws of neutral application, claiming its beliefs are in conflict and burdened, and asserting they have a superior right to locate wherever they desire? Case-in-point: The Town of Surfside in Miami-Dade County, Florida ("the Town"), is less than one square mile in size and has a population of approximately 4,400.' There are three churches and one synagogue in Surfside. The Town desires to preserve its business and tourist districts, which do not permit churches and synagogues, because they are essential to its residents and economic survival. So through its zoning laws, the Town restricted the location of churches and synagogues to a multi-family residential zoning district, which is centrally located in the Town, larger in size than either the business or tourist districts, and only two blocks away from the present location of two additional synagogues in the nonpermitted districts. Presently, two religious organizations are claiming that the law is unconstitutional under the federal Constitution and the Florida Religious Freedom Restoration Act ("RFRA"). They assert that the inconvenience of walking two blocks farther to their place of worship burdens their freedom of religion, particularly for orthodox Jews who walk to synagogue and cannot drive because of their religion! Despite the zoning laws, the religious organizations utilized the property in business and tourist zoning districts for the establishment and maintenance of the two synagogues. The Town did not seek judicial relief until Spring 1999, when one of the organizations dared the Town to take enforcement action against it, threatened to wage an adverse public relations campaign against the Town, and the other organization commenced operations. The Town filed suit for declaratory and injunctive relief. This case illustrates a concerted effort directed by various religious organizations against the Town of Surfside to secure religious freedoms under the Religious Freedom Restoration Act, using the act as a sword, rather than a shield, by disregarding Surfside's zoning laws with impunity. Such efforts can substantially tax a municipality's resources, even before the commencement of any litigation. How could this happen, and how can a municipality find its hands tied between enforcing its laws and appearing to be anti-religion? The answer lies in the controversy over the constitutionality and the applicability of the Religious Freedom Restoration Act, as well as in the courts' and legislature's inability to concur on what standard of review is appropriate in evaluating religious discrimination claims under the Religious Freedom Restoration Act and accompanying case law. While the two branches of government fight it out, more and more religious discrimination claims against municipalities are arising, making it harder for municipalities to defend themselves against such claims in the midst of confusion in the law. The following review will attempt to help municipalities defend against such suits by outlining (I) the evolution of the Religious Freedom Restoration Act, (II) what awaits the parties when confronted with a religious discrimination suit, and (III) how municipalities can shield themselves from liability.

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