Federal judge finds religious education advanced by land-use law

Wednesday, September 29, 1999

A Maryland county ordinance allowing churches and other religious institutions to build on their land without getting a permit violates the separation of church and state, a federal judge says.

The ordinance came under attack by some Potomac, Md., residents earlier this year when the Connelly School of the Holy Child started building on the land where it sits, which is owned by a religious group. The residents, who are neighbors to the school, sued the school in federal court. They claimed that the county’s zoning ordinance violates the First Amendment’s establishment clause because it exempts “any private educational institution, or parochial school, which is located in a building or on premises owned or leased by any church or religious organization” from having to obtain a building permit.

After the residents sued the religious school, Montgomery County officials intervened to defend the zoning law. They argued that the exemption for religious groups was necessary, in part to prevent the entanglement of religion and state.

Earlier this month, U.S. District Judge J. Frederick Motz ruled in favor of the residents, declaring the zoning ordinance unconstitutionally favored religion and ordering the religious school to stop its construction.

Motz said the Montgomery County zoning law failed a constitutional test created by the U.S. Supreme Court in 1971 to determine when a government action or law violates the establishment clause. In Lemon v. Kurtzman, the high court concluded that government actions or laws must have a secular purpose, can neither advance nor hinder religion, and must not entangle church and state. Motz said the county zoning ordinance unconstitutionally advanced religion and could only be remedied by extending exemptions to all private schools regardless of who owns the land they’re on.

Lawyers for Montgomery County argued that the zoning law had a secular purpose by encouraging “the promotion of education” and that requiring religious groups to apply for building permits would entangle church and state. Motz bought neither argument.

“Within the parlance of Establishment Clause jurisprudence, the proposition that a legitimate secular legislative purpose can be the promotion of religious education is an oxymoron,” Motz wrote. “Likewise, by definition, to promote private religious education alone has a primary effect of advancing religion.”

County officials claimed that zoning boards could use architectural-review requirements to block construction of facilities by unpopular religious groups. But Motz said the county’s claim was “wholly conjectural” and that “if the constitutionality of a statute could be upheld on such a thin reed, legislative bodies dominated by religious groups could run roughshod over the Establishment Clause.”