Land-use ordinance doesn’t advance religion, federal appeals panel rules

Wednesday, August 16, 2000

A Maryland county ordinance that allows parochial schools to build on
their land without obtaining a special permit does not violate the
establishment clause, a divided federal appeals court panel has ruled.

The Connelly School of the Holy Child, a Roman Catholic School for
girls in grades 6-12 in Montgomery County, began constructing improvements and
additions to the school without obtaining a building permit.

A county ordinance exempts parochial schools located on land owned or
leased by a church or religious organization from having to obtain the

Birgit Ehlers-Renzi and her husband Vincent Renzi, an attorney,
challenged the constitutionality of the zoning ordinance in federal court. The
Renzis contended that exempting the religious school from having to obtain the
building permit impermissibly advanced religion.

In August 1999, U.S. District Judge Frederick Motz ruled that the
ordinance violated the establishment clause because it had no secular purpose
and advanced religion by favoring parochial over secular schools.

On appeal, a three-judge panel of the 4th U.S. Circuit Court of
Appeals reversed the district court by a 2-1 vote in
Ehlers-Renzi v. Connelly School of the Holy Child,

Judges Paul Niemeyer and H. Emory Widener reasoned that the land-use
ordinance was a constitutional and necessary form of accommodation of religion.
“Indeed, the government is entitled to accommodate religion without violating
the Establishment Clause, and at times the government must do so,” Niemeyer
wrote in his Aug. 14 opinion.

“This authorized, and sometimes mandatory, accommodation of religion
is a necessary aspect of the Establishment Clause jurisprudence because,
without it, government would find itself effectively and unconstitutionally
promoting the absence of religion over its practice,” he wrote.

The panel majority analyzed the constitutionality of the ordinance
under an establishment clause test created by the U.S. Supreme Court in the
1971 case Lemon v. Kurtzman. Under
the Lemon test, a regulation
survives judicial scrutiny if:

It has a secular purpose.

It neither advances nor inhibits religion.

It doesn’t excessively entangle government with religion.

The majority found several secular purposes for the law, including
avoiding interference with schools’ religious missions. “In short, the low
threshold of this first Lemon prong
is easily cleared by the Zoning Ordinance’s plausible purpose of extricating
Montgomery County from these involvements in religion,” the panel concluded.

The majority cited numerous opinions in support of its decision,
including a 1988 4th Circuit decision, Forest Hills
Early Learning Center, Inc. v. Grace Baptist Chruch
, in which
the court upheld an exemption for religious daycares from licensing

The Renzis argued that the county ordinance favored religious

The panel disagreed, citing the U.S. Supreme Court’s 1987 decision in
Corporation of the Presiding Bishop of the Church
of the Jesus Christ of Latter-Day Saints v. Amos
. The majority
wrote: “an exemption’s effect of simply allowing a religious school to better
… advance its purposes does not” unconstitutionally promote

As for the “excessive entanglement” prong of the
Lemon test, the majority said that
the county ordinance had a “disentangling effect” by “avoiding government
intrusion into matters of religious education.”

The majority concluded that the “exemption removes the State from
forums in which religious conflict might otherwise require improper State

Judge Francis D. Murnaghan Jr. dissented. He ruled that requiring the
school to obtain a building permit “would not significantly interfere with the
school’s ability to define and carry out its mission.”

Murnaghan distinguished the Renzis’ suit from the decisions in
Amos and Forest Hills Learning Center, writing: “There is
an important difference between regulations that reach into an organization’s
program and personnel, on the one hand, and those that only impact the
development of its physical facilities.”

Kevin Hasson, president and general counsel for the Becket Fund for
Religious Liberty, praised the decision. “This is a very important victory for
the fundamental principle that governments may accommodate religion, as they
have long done in Montgomery County and many other communities all across the
country,” Hasson said in a news release.

Maureen Appel, headmistress of the Connelly School of the Holy Child,
said she was “very pleased with the result.”

“This is especially gratifying because of the diverse groups who
supported Connelly School on this appeal,” she said. Appel was referring to the
fact that numerous groups filed friend-of-the court briefs on behalf of the
school, including the Becket Fund, the American Jewish Congress and the
American Civil Liberties Union of Maryland.

The Renzis could not be reached for comment.

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