Boyajian v. Gatzunis

United States Court of Appeals
For the First Circuit
____________________

No. 99-1760

MARGARET BOYAJIAN, CHARLES COUNSELMAN AND
JEAN DICKINSON,
Plaintiffs, Appellants,

v.

THOMAS GATZUNIS, BUILDING INSPECTOR OF THE
TOWN OF BELMONT; JOHN W. GAHAN III; AS MEMBER
OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT;
WILLIAM D. CHIN, AS MEMBER OF THE ZONING BOARD OF
APPEALS OF THE TOWN OF BELMONT; THOMAS P. CALLAHAN, JR.,
AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE
TOWN OF BELMONT; CARLO TAGARIELLO, AS MEMBER OF THE
ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT;
ANTHONY LECCESE, AS MEMBER OF THE ZONING BOARD
OF APPEALS OF THE TOWN OF BELMONT; JAMES D. HARRINGTON,
AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE
TOWN OF BELMONT; CHARLES H. REARDON, AS MEMBER OF
THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT;
KARL TOBIASON, AS MEMBER OF THE ZONING BOARD OF
APPEALS OF THE TOWN OF BELMONT; CORPORATION OF THE
PRESIDING BISHOP OF THE CHURCH OF LATTER DAY SAINTS;

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,
 and Boudin, Circuit Judge.

_____________________

G. Michael Peirce, with whom Mofenson & Nicoletti, Mark A. White,
R. Keith Partlow and O'Brien, Partlow & White, P.C. were on brief, for
appellants.
Paul Killeen, with whom Edward J. Naughton, Daniel K. Hampton and
Holland & Knight LLP were on brief, for appellee Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints.
David C. Hawkins and Morrissey & Hawkins for appellee Town of
Belmont.
Thomas F. Reilly, Attorney General of Massachusetts and LaDonna
J. Hatton, Assistant Attorney General, on brief for Commonwealth of
Massachusetts, amicus curiae.
James O. Fleckner, Mark A. Michelson, P.C. and Choate, Hall &
Stewart on brief for American Jewish Congress, amicus curiae.
Wilson D. Rogers, Jr., Law Offices of Wilson D. Rogers, Jr., P.C.,
Frederic J. Torphy, James F. Cosgrove, Cosgrove, O'Connell & Blatt John
J. Egan, Egan, Flanagan & Cohen, P.C. and Gerald D'Avolio on brief for
the Roman Catholic Archbishop of Boston, the Roman Catholic Bishop of
Fall River, the Roman Catholic Bishop of Worcester, the Roman Catholic
Bishop of Springfield and the Massachusetts Catholic Conference, amici
curiae.
Gerald J. Caruso, Ferriter Scobbo Caruso & Rodophele PC, Devra G.
Bailin and Urbelis, Fieldsteel & Bailin LLP on brief for American
Baptist Churches of Massachusetts, American Baptist Churches in the
USA, Baptist General Conference, Baptist Joint Committee, Evangelical
Covenant Church, Evangelical Lutheran Church in America, General
Conference of Seventh-Day Adventists, General Counsel on Finance and
Administration of the United Methodist Church, Presbyterian Church
(U.S.A.), Reorganized Church of Jesus Christ of Latter Day Saints,
United House of Prayer for all People of the Church on the Rock of the
Apostolic Faith, Worldwide Church of God and the First Church of
Christ, Scientist, amici curiae.

____________________

May 2, 2000
____________________
 COFFIN, Senior Circuit Judge. This case involves a constitutional

challenge under the Establishment Clause of the First Amendment to a

state law and a town ordinance that prohibit municipal authorities from

excluding religious uses of property from any zoning area. It is

brought by a group of residents of Belmont, Massachusetts, against

Belmont officials and the Church of Jesus Christ of Latter-Day Saints,

challenging the construction of a large temple on the edge of a

residential district in the town. The district court upheld both

provisions of law, granting summary judgment for defendants and

allowing construction to proceed. We affirm.

I. Background

The essential facts of this case are undisputed and were submitted

to the district court with cross-motions for summary judgment. We draw

our summary primarily from the district court’s opinion, supplementing

with details from the decision of the Belmont Zoning Board of Appeals

and other pertinent record materials.

Defendant Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints (the "Church" or "LDS") acquired an

8.9-acre parcel of land in the Town of Belmont in 1979. It constructed

a meeting house on the property, which is located entirely in a single

residential district, and has conducted religious services there since

the mid-1980s.

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 The Church later decided to build a temple on the site. An LDS

temple is a large facility, of which there are fewer than 100

worldwide, that is used solely for the Church’s most sacred ceremonies.

Although Belmont’s zoning by-law permits religious uses as of right in

residential districts, see By-law § 3.3, the Church filed an

application for a special permit, as required, because it sought to

exceed the allowable height limit.

After a series of public hearings in which opponents raised a

variety of concerns, the Zoning Board of Appeals in 1997 approved the

special permit. The Church voluntarily made numerous design changes in

response to neighborhood concerns and obtained unanimous approval of

its new design from the Board before it began construction. The final

plans call for the temple to occupy some 69,000 square feet and to

include one 139-foot-tall spire and several smaller towers.1 The temple

will be set back from abutters by at least 165 feet, and in most

locations more than that, although plaintiffs are quick to point out

that the setback will consist largely of a parking lot for over two

hundred vehicles.

The Belmont by-law allowing religious uses by right in the

residential zone where the Church’s property is located is in

accordance with Mass. Gen. Laws ch. 40A, § 3, known as the "Dover

1 The original plan called for six spires exceeding the standard
permissible height limitation and a surface area of 94,100 square feet.

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Amendment." That law provides, in part, that a zoning regulation may

not restrict the use of land for religious or educational purposes when

the property is owned by the Commonwealth, a religious organization, or

a nonprofit educational corporation, except that "reasonable

regulations" are permitted concerning such characteristics as the bulk

and height of structures, open space, and parking.

Plaintiffs brought this suit challenging both Belmont’s by-law and

the Dover Amendment, claiming that they violate the Establishment

Clause of the First Amendment by favoring religious uses of property

without a secular purpose. The district court granted summary judgment

for the defendants in May 1999, finding that neither of the laws

constitutes an impermissible "establishment" of religion. Plaintiffs

then filed this timely appeal.

II. Discussion

The First Amendment to the United States Constitution states that

"Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof," a proscription that has been

extended to the States by virtue of the Fourteenth Amendment. As the

Supreme Court long has recognized, "tension inevitably exists between

the Free Exercise and the Establishment Clauses," Committee for Pub.

Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973) (citing

Everson v. Board of Educ., 330 U.S. 1 (1947) and Walz v. Tax Comm’n of

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City of New York, 397 U.S. 664 (1970)), and the Court has "struggled to

find a neutral course between [them]," Walz, 397 U.S. at 668. While

the Free Exercise Clause admonishes the government against impinging on

the religious beliefs and expression of its citizens, the Establishment

Clause cautions that the government may not adopt the cause of religion

as its own. The Seventh Circuit has noted the challenge of reconciling

the two Religion Clauses:

The juxtaposition of the two clauses, and the internal
tension they create, makes total separation between religion
and government impossible. Lynch [v. Donnelly, 465 U.S.
668, 673 (1984)]; Lemon [v. Kurtzman, 403 U.S. 602, 614
(1971)]. Indeed, "[i]t has never been thought either
possible or desirable to enforce a regime of total
separation" between religion and government. [Committee for
Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760
(1973).] Thus the Court has recognized that the First
Amendment "affirmatively mandates accommodation," Lynch, 465
U.S. at 673, and "that the government may (and sometimes
must) accommodate religious practices and that it may do so
without violating the Establishment Clause." Hobbie v.
Unemployment Appeals Comm. of Florida, 480 U.S. 136, 144-45
(1987) (footnote omitted).

Cohen v. City of Des Plaines, 8 F.3d 484, 491 (7th Cir. 1993); see

Corporation of the Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987) (quoting Hobbie,

480 U.S. at 144-45); Zorach v. Clauson, 343 U.S. 306, 312 (1952) ("The

First Amendment . . . does not say that in every and all respects there

shall be a separation of Church and State."). Our task in navigating

the course between the opposing mandates of the Religion Clauses is

thus to strike that appropriate balance referred to by the Court as a

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"benevolent neutrality," Walz, 397 U.S. at 669; see also Amos, 483 U.S.

at 334.

As a practical framework for analysis in cases such as this, the

Supreme Court has adopted the three-part test articulated in Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971), which states that a law does not

violate the Establishment Clause if (1) it has a secular legislative

purpose, (2) its principal or primary effect neither advances nor

inhibits religion, and (3) the statute does not foster excessive

government entanglement with religion. See, e.g., Amos, 483 U.S. at

335-39; Rojas v. Fitch, 127 F.3d 184, 187 (lst Cir. 1997). The parties

generally agree that the third requirement is satisfied in this case,

so we will focus, as the parties have done, on the purpose and effects

inquiries. Because the state statute (the Dover Amendment) effectively

requires municipalities to enact by-laws like that adopted by Belmont,

our conclusion that the Dover Amendment is constitutionally permissible

largely resolves the lawfulness of the ordinance as well. We therefore

discuss the ordinance only briefly in section B, infra.

A. The Dover Amendment

Section 3 of Chapter 40A of the Massachusetts General Laws limits

the zoning regulations that can be imposed on certain types of land

uses, including agriculture, religious use of property owned by either

the Commonwealth or a religious group, nonprofit educational uses,

child care facilities, access for physically handicapped persons to

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private property, solar energy systems, and antennas for federally

licensed amateur radio operators. The zoning of religious and

educational uses is addressed in the second paragraph of the section

and reads, in pertinent part, as follows:

No zoning ordinance or by-law shall . . . prohibit,
regulate or restrict the use of land or structures for
religious purposes or for educational purposes on land owned
or leased by the commonwealth or any of its agencies,
subdivisions or bodies politic or by a religious sect or
denomination, or by a nonprofit educational corporation;
provided, however, that such land or structures may be
subject to reasonable regulations concerning the bulk and
height of structures and determining yard sizes, lot area,
setbacks, open space, parking and building coverage
requirements.

Mass. Gen. Laws ch. 40A, § 3.2 This provision is commonly known as the

Dover Amendment because its religion-focused component was enacted in

1950 in response to a zoning by-law passed by the town of Dover,

Massachusetts, prohibiting religious schools within that town’s

residential neighborhoods. See Trustees of Tufts College v. City of

Medford, 415 Mass. 753, 757-58, 616 N.E.2d 433, 437-38 (1993); Attorney

General v. Dover, 327 Mass. 601, 603-04 (1951); The Bible Speaks v.

2Other paragraphs of section 3 detail similar limitations on the zoning
of other types of uses. The first paragraph, for example, bars
unreasonable regulation of the use of land "for the primary purpose of
agriculture, horticulture, floriculture, or viticulture." The third
paragraph prohibits local laws limiting the use of land or structures
for child care facilities, except for the same types of "reasonable
regulations" permissible with respect to religious and educational
uses. Also included in section 3 is a provision protecting congregate
homes for the disabled from discriminatory health and safety laws or
land-use requirements and a prohibition against unreasonable regulation
of solar energy systems. See Mass. Gen. Laws ch. 40A, § 3.

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Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 28, 391 N.E.2d 279, 284

(1979).3 The protections for other types of uses were added in later

years.

Plaintiffs maintain that giving religious organizations the

advantage of preferred zoning status constitutes an impermissible

endorsement of religion, in violation of the Establishment Clause.

Under Lemon, our first step in evaluating the Dover Amendment’s

constitutionality is to ascertain whether it serves a "secular

legislative purpose." See Lemon, 403 U.S. at 612.

This does not mean that the law’s purpose must be unrelated
to religion – that would amount to a requirement "that the
government show a callous indifference to religious groups,"
Zorach v. Clauson, 343 U.S. 306, 314 (1952).

Amos, 483 U.S. at 335. We think the purpose of the Dover Amendment

fits easily within the established boundaries of "benevolent

neutrality," see id. at 334, in which religious exercise is supported

but not promoted.

There is no dispute that the law was enacted to prevent religious

discrimination of the sort embodied in the Dover by-law, which allowed

3In 1950, the Massachusetts Legislature inserted the following language
into Mass. Gen. Laws ch. 40, § 25, a predecessor of the current ch.
40A, § 3:

No by-law or ordinance which prohibits or limits the use of
land for any church or other religious purpose or which
prohibits or limits the use of land for any religious,
sectarian or denominational educational purpose shall be
valid.

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secular educational institutions but barred sectarian ones in the

town’s residential areas. Indeed, the provision was originally titled

"An Act Prohibiting Discriminatory Zoning By-laws and Ordinances." See

Tufts College, 415 Mass. at 757, 616 N.E.2d at 437-38 (purpose of the

Amendment was "to strike a balance between preventing local

discrimination against an educational [or religious] use . . . and

honoring legitimate municipal concerns that typically find expression

in local zoning laws"). Prohibition of religious discrimination is

unquestionably an appropriate, secular legislative purpose. See, e.g.,

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

532 (1993) ("Indeed, it was ‘historical instances of religious

persecution and intolerance that gave concern to those who drafted the

Free Exercise Clause.’"); cf. Walz, 397 U.S. at 673 (noting, in case

challenging property tax exemption for religious uses of property, that

"[g]overnments have not always been tolerant of religious activity" and

that "[g]rants of exemption historically reflect the concern of authors

of constitutions and statutes as to the latent dangers inherent in the

imposition of property taxes").

Appellants do not dispute the legitimacy of protecting religious

entities from discrimination, but they argue that the Dover Amendment

goes unconstitutionally beyond such a purpose to endorse and benefit

religious uses by removing "any type of real local zoning control of

religious sites" (emphasis in appellants’ brief). This argument

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brings us to the second Lemon prong, which examines whether,

irrespective of the government’s actual purpose, the practice under

review has the "principal or primary effect" of endorsing or

disapproving religion, Wallace v. Jaffree, 472 U.S. 38, 55 (1985)

(quoting Lemon, 403 U.S. at 612). Appellants maintain that the statute

provides such a substantial advantage to religious institutions that,

in effect, it constitutes an advancement of religion in violation of

the Establishment Clause.

We note as an initial matter that a law that simply protects

religious organizations from unfair treatment certainly cannot be

impermissible as an unconstitutional endorsement of religious activity.

See generally Wisconsin v. Yoder, 406 U.S. 205, 220-21 (1972) (The

Establishment Clause "cannot be allowed to prevent any exception" to

laws of general applicability which fosters the free exercise of

religion.). Yet, it is possible for government to extend itself so far

in preventing unfairness that it crosses the line from acceptable

accommodation to impermissible favoritism. See Amos, 483 U.S. at 334-

35 ("At some point, accommodation may devolve into `an unlawful

fostering of religion . . . .’") (quoting Hobbie, 480 U.S. at 145));

Yoder, 406 U.S. at 220-21.

Although the precise location of that threshold can be difficult

to detect, we are confident that it has not been reached here.

Appellants’ depiction of the statute as an impermissible legal hammer

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wielded in favor of religion both grossly exaggerates the reach of the

statute and understates the recognition that religion may be given

consistent with the Establishment Clause. As for the statute’s scope,

it does not exempt religious property uses from substantial standard

zoning requirements that are designed to ensure compatible uses of

land. As earlier noted, the statute explicitly states in a proviso

that limitations imposed on other property owners concerning such

specific features as the bulk and height of structures, lot area,

setbacks and required parking also may be imposed on religious

organizations. See ch. 40A, § 3. Thus, a religious institution, no

less than any other group, must comply with reasonable regulations

designed to preserve a comfortable, desirable community. See Tufts

College, 415 Mass. at 760, 616 N.E.2d at 439 ("[T]he Dover Amendment is

intended to encourage `a degree of accommodation between the protected

use . . . and matters of critical municipal concern . . . .’").4

As for the statute’s assertedly improper focus on religion,

plaintiffs err in two respects: the statute does not benefit only

4We recognize that facially neutral restrictions imposed under the
proviso may be subject to challenge as "unreasonable" if they
effectively would nullify a religious or other permitted use. See
Trustees of Tufts College v. City of Medford, 415 Mass. 753, 757-58 &
n.6, 616 N.E.2d 433, 437-38 & n.6 (1993). The Massachusetts Supreme
Judicial Court has stated that the question of reasonableness will
depend on the particular facts of each case, see 415 Mass. at 759, 616
N.E.3d at 438, with the burden on the institution to "prov[e] that the
local requirements are unreasonable as applied to its proposed
project," 415 Mass. at 759, 616 N.E.2d at 439.

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religious uses and, even if it did, such unique treatment can withstand

constitutional scrutiny.

We look first at the statute’s coverage. While the original

Dover Amendment was directed solely at religious uses of property, the

provision now includes a variety of uses linked together by the

legislature’s apparent judgment that these uses, though important to

all communities, would be at risk of exclusion from certain zoning

areas because of local prejudice unrelated to their compatibility with

the essential nature of the existing community. Our task is to consider

the validity of the statute before us, not the one enacted fifty years

ago. See generally Walz, 397 U.S. at 688 n.8 ("The only governmental

purposes germane to the present inquiry . . . are those that now

exist.").

It has long been accepted that religious entities may be the

beneficiaries of laws that, for secular reasons, provide benefits to a

variety of groups. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 10-

13 (1989) (plurality opinion); Rojas, 127 F.3d at 188-89. Among the

most prominent examples are the exemption from property taxes upheld by

the Supreme Court in Walz, 397 U.S. at 664, and the tax deduction for

the expenses of religious education allowed in Mueller v. Allen, 463

U.S. 388 (1983). In his concurrence in Walz, Justice Brennan observed

that New York included churches within the exempted class "not because

it champions religion per se but because it values religion among a

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variety of private, nonprofit enterprises that contribute to the

diversity of the Nation." Walz, 397 U.S. at 693.

We think an equivalent description applies to the state’s judgment

here. In protecting religious, educational, agricultural and the other

listed uses of property from exclusion -- whether resulting from

discrimination or simply from a general aversion to change in the

neighborhood -- Massachusetts evidences "an affirmative policy that

considers these groups as beneficial and stabilizing influences in

community life," wherever they are located, see id. at 673. The

Supreme Court has time and again made it clear that to include religion

in such a category is not to advance religion in contravention of the

Establishment Clause. The collection of favored uses in the Dover

Amendment is amply diverse in the context of zoning to support such a

determination. See Texas Monthly, 489 U.S. at 15 ("How expansive the

class of exempt organizations or activities must be to withstand

constitutional assault depends upon the State’s secular aim in granting

a tax exemption.").

Turning to our second point regarding the statute’s focus on

religion, we note that even a special status granted exclusively to

religious organizations is not always impermissible. This conclusion

is inevitably drawn from our analysis of three of the Supreme Court’s

more recent Establishment Clause cases. All address benefits that were

granted only to religious groups or solely on the basis of religion.

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One upholds the benefit granted, while the other two invalidate the

statutes at issue. Their holdings are instructive, for we see this

case as governed by the former and easily distinguishable from the

latter.

In Amos, the Supreme Court upheld section 702 of the Civil Rights

Act of 1964, which exempted religious organizations from Title VII’s

prohibition against discrimination in employment on the basis of

religion. See 483 U.S. at 327. Noting the Court’s longstanding

recognition that "`government may (and sometimes must) accommodate

religious practices and that it may do so without violating the

Establishment Clause,’" id. at 334 (quoting Hobbie, 480 U.S. at 144-

45), the Court endorsed state efforts "to alleviate significant

governmental interference with the ability of religious organizations

to define and carry out their religious missions," id. at 335. The

Court declined to invalidate the exemption on the basis that it singled

out religious groups for a benefit, stating that where "government acts

with the proper purpose of lifting a regulation that burdens the

exercise of religion, we see no reason to require that the exemption

comes packaged with benefits to secular entities." Id. at 338.

Massachusetts’ effort to eliminate local zoning discrimination is

fully in line with the Court’s approval of government actions aimed at

lifting burdens from the exercise of religion. Not only was the Dover

Amendment at its origin a defensible response to an actual incident of

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discrimination, but protections against land use bias continue to be

supportable fifty years later. Two recent law review articles

canvassing discrimination against religion in the land use context

report numerous instances of zoning actions that reflect local

sentiments ranging from outright hostility to indifference to the needs

of religious organizations, with minority religions particularly hard

hit. See Douglas Laycock, "State RFRAs [Religious Freedom Restoration

Acts] and Land Use Regulation," 32 U.C. Davis L. Rev. 755, 771, 778-80

(1999) [hereinafter "State RFRAs"]5; Von G. Keetch & Matthew K.

Richards, "The Need for Legislation to Enshrine Free Exercise in the

Land Use Context," 32 U.C. Davis L. Rev. 725, 729-30 (1999).

Of particular note is the phenomenon of churches being unwanted

either in residential areas – because of increased traffic or noise, or

impact on aesthetics – or in business zones – because tax-exempt

churches dampen the vibrancy of commercial developments. See "State

RFRAs," 32 U.C. Davis L. Rev. at 761-62, 774-75; see also, e.g.,

Christian Gospel Church v. San Francisco, 896 F.2d 1221, 1224 (9th Cir.

1990) (upholding denial of permit for church to hold worship services

in residential neighborhood, noting that zoning "protects the zones’

inhabitants from problems of traffic, noise and litter") (citation

omitted); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464,

5Indeed, Professor Laycock notes that churches are now facing more
difficulty in the land use context than in the past. See "State
RFRAs," 32 U.C. Davis L. Rev. at 764.

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467 ( 8th Cir. 1991) (quoting city council resolution excluding churches

from the town’s central business district because "no business or

retail contribution or activity is generated"). Certainly in the face

of such evidence, the state’s decision to give religion an assist in

the local land-use planning process is consistent with the Supreme

Court’s holding in Amos that legislation isolating religious groups for

special treatment is permissible when done for the "proper purpose" of

alleviating a burden on the exercise of religion. See Amos, 483 U.S.

at 337-38.

Neither of the Court’s two other cases, both of which struck down

benefits given exclusively for religious reasons, points to a contrary

result in this case. In Estate of Thornton v. Caldor, 472 U.S. 703

(1985), the Court invalidated a Connecticut statute guaranteeing

employees the right to take their chosen Sabbath day off from work.

The Court noted that the "absolute and unqualified right" given to

Sabbath observers required employers to conform their business

practices to an employee’s religious practices without any

"consideration as to whether the employer has made reasonable

accommodation proposals," see id. at 709-10, conveying a message of

"endorsement of a particular religious belief, to the detriment of

those who do not share it," id. at 711 (O’Connor, J., concurring).

As we have observed, the Dover Amendment does not give religious

organizations an "absolute and unqualified right" to build whatever

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structures they desire in residential or other zones. The protection

given religious uses is moderated by the community’s countervailing

interest in minimizing adverse impacts to communities, which is

reflected in the requirement that religious uses conform to the

standard physical limitations imposed on all buildings located in that

zone. Moreover, in a further distinction from the Connecticut statute,

the Dover Amendment does not protect one type of religious activity,

but "extends . . . to all religious beliefs and practices," Thornton,

472 U.S. at 712 (O’Connor, J., concurring). We think it clear,

therefore, that "an objective observer would perceive it as an anti-

discrimination law rather than an endorsement of religion or a

particular religious practice." Id.

Finally, in Texas Monthly, 489 U.S. at 1, five justices in two

separate opinions struck down a Texas statute exempting religious

periodicals, and no other publications, from state sales tax.6 In the

view of this combined majority of the court, the statute failed for

lack of a secular objective. See id. at 14-15; 28. In his concurring

opinion joined by Justice O’Connor, Justice Blackmun observed that "[a]

statutory preference for the dissemination of religious ideas offends

our most basic understanding of what the Establishment Clause is all

6The statute exempted "`[p]eriodicals that are published or distributed
by a religious faith and that consist wholly of writings promulgating
the teaching of the faith and books that consist wholly of writings
sacred to a religious faith.’" Texas Monthly, 489 U.S. at 5.

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about and hence is constitutionally intolerable." Id. at 28. Here,

by contrast, the statute both has an express secular purpose and it

embraces a variety of land uses likely to encounter similar local

opposition. As such, it does not suffer from the Texas Monthly

constitutional flaws.

In our view, the favorable attitude toward religion reflected in

the Dover Amendment does not constitute a fostering of, or favoritism

toward, religion over non-religion, but represents a secular judgment

that religious institutions, by their nature, are compatible with every

other type of land use and thus will not detract from the quality of

life in any neighborhood.

An impressive body of case law and scholarly texts and articles

supports this conclusion. See Walz, 397 U.S. at 689 (Brennan, J.,

concurring) ("[G]overnment grants exemptions to religious organizations

because they uniquely contribute to the pluralism of American society

by their religious activities."); Concerned Citizens of Carderock v.

Hubbard, 84 F. Supp.2d 668, 674-75 (D. Md. 2000) ("It is . . .

reasonable to presume that `churches . . . and other places of worship’

. . . belong [in the] category of uses [that are] wholly compatible

with single family home life." (citing E.C. Yokley, Zoning Law and

Practice § 35-14, at 35 (4th ed. 1980, Supp. 1999) ("`Since the advent

of zoning, churches have been held proper in residence districts.’")));

Kenneth H. Young, Anderson’s American Law of Zoning § 12.22 at 578 ( 4th

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ed. 1996) ("[R]eligious uses contribute to the general welfare of the

community, and can contribute most when located in residential

districts . . . .");7 Terry Rice, "Re-Evaluating the Balance Between

Zoning Regulations and Religious and Educational Uses," 8 Pace L. Rev.

1, 3 (1988) (The "dominant status" of churches and schools "is based on

a recognition that religious and educational institutions are, by their

very nature, beneficial to the public welfare."); cf. Texas Monthly,

489 U.S. at 12 (property tax exemption for churches "possessed the

legitimate secular purpose and effect of contributing to the

community’s moral and intellectual diversity").

It is of some note, as well, that proximity to their houses of

worship is for some groups a significant component of their religious

practice. Orthodox Jews, for example, believe they are prohibited by

the Torah, the Jewish Bible, from using automobiles on their Sabbath.

They therefore must live within walking distance of a synagogue. See,

7The authors of this treatise note that there are "sound reasons" for
excluding churches from residential districts, including the traffic
associated with large numbers of people attending services and
meetings, see § 12.22 at 578. They ultimately conclude, however, that
"an ordinance which excludes [religious] uses from residential zones
does not further the public health, safety, morals, or general
welfare," id., observing:

Religious uses serve people best when they are accessible to
homes. Religious buildings provide convenient meeting
places for youth groups and civic associations. This need
can be filled best when the religious institution is
convenient to the residents who attend.

Id.

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e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 430 (2d Cir. 1995);

"State RFFAs," 32 U.C. Davis L. Rev. at 779-80. Although we do not

suggest that the Free Exercise Clause mandates the Dover Amendment,8 the

fact that the law may serve to avoid a possible barrier to

participation in communal worship highlights its effect as an

accommodation, rather than a promotion, of religion. See Wallace v.

Jaffree, 472 U.S. at 83 (O’Connor, J., concurring) ("[I]n determining

whether the statute conveys the message of endorsement of religion . .

. courts should assume that the `objective observer’ . . . is

acquainted with the Free Exercise Clause and the values it promotes.");

cf. Forest Hills Early Learning Ctr. v. Grace Baptist Church, 846 F.2d

260, 263 ( 4th Cir. 1988) (exempting religious child care centers from

state licensing requirements should be perceived as "‘an accommodation

of the exercise of religion rather than as a government endorsement of

religion’" (quoting Amos, 483 U.S. at 349 (O’Connor, J., concurring)).

In sum, the law does not take any of the paths forbidden by the

Establishment Clause. It does not endorse an individual religious

faith, it does not provide a direct financial subsidy to any religious

organization, it does not inject religious activity into a nonreligious

8"It is well established . . . that `[t]he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause. Amos, 483 U.S.
at 334 (quoting Walz, 397 U.S. at 673). Some courts, however, have
held that it is unconstitutional to exclude churches from residential
areas. See 2 William W. Bassett, Religious Organizations and the Law
§ 10:15 (1997).

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context, and it does not "place [the state’s] prestige, coercive

authority, or resources" behind religious faith in general, see Texas

Monthly, 489 U.S. at 9, other than to acknowledge its presence and

value -- as does the Constitution -- as "an element of our societal

mosaic," Walz, 397 U.S. at 693 (Brennan, J., concurring). The concerns

underlying the Establishment Clause arise not when religion is allowed

by government to exist or even flourish, but when government sets a

religious agenda or becomes actively involved in religious activity.

See Amos, 483 U.S. at 337. By protecting religious uses of land among

others that are favored by communities generally, but that may

encounter particular neighborhood disfavor, the Dover Amendment does

not itself advance religion but clears the way so that churches

themselves may do so. This is a permissible effect under Lemon. See

Amos, 483 U.S. at 337. ("A law is not unconstitutional simply because

it allows churches to advance religion, which is their very purpose.

For a law to have forbidden `effects’ under Lemon, it must be fair to

say that the government itself has advanced religion through its own

activities and influence." (emphasis in original)).

B. The Belmont By-law

As originally enacted in 1925, section 3 of Belmont’s zoning by-

law stated:

In a single residence district,

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 (a) No building or structure shall be erected, altered
or used for any other purpose than the following, including
customary incidental uses:
(1) Single-family detached dwelling;
(2) Clubhouse . . . ;
(3) Lodging or boarding house . . . ;
(4) Educational or religious use . . . .

The by-law was later amended to reflect the requirements of the Dover

Amendment, and the Schedule of Use Regulations that now constitutes §

3.3 permits in all zoning districts "Religious or educational use

exempted from prohibition by [the Dover Amendment]."

The Belmont by-law reflects the same benevolent attitude toward

religious uses of land that is implicit in the Dover Amendment and, as

discussed earlier, we think it a passive preference that is consistent

with constitutional principles. Among the by-law’s stated purposes are

"to encourage water supply, drainage, sewerage, schools, parks, open

space and other public requirements" and "to encourage the most

appropriate use of land throughout the Town." See Belmont Zoning By-

law § 1.2 (emphasis added). A legislative judgment that religious

activities are suitable in all neighborhoods, whether made on the state

or local level, does not by itself promote the practice of religion.

It simply recognizes the widely valued role of religious entities

within our communities by guaranteeing them a physical place.

Although the by-law lacks the state statute’s explicit anti-

discrimination purpose, we do not consider that additional rationale

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necessary to validate a zoning scheme that gives wide range to

religious uses of property among other uses that are similarly

important to all communities. Moreover, because the current version of

the by-law specifically incorporates the Dover Amendment, we think it

fair to view it as implicitly incorporating its anti-discrimination

purpose.

In short, the Belmont by-law, like the Dover Amendment, is

sufficiently secular in purpose and effect to fall within

constitutional boundaries; it recognizes the value of religion without

impermissibly promoting its exercise.

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 III. Conclusion

We therefore conclude that both the state statute and the town by-

law pass constitutional scrutiny. Accordingly, we affirm the district

court’s grant of summary judgment for appellees.

Dissent follows.

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 TORRUELLA, Chief Judge (Dissenting). I am largely in

agreement with the majority as to the legal standards which--fuzzy as

they may be--apply to this case. However, my application of those

standards leads me to a different result than that reached by the

majority, and I must respectfully dissent.

My first principal disagreement with the majority is that I

do not understand the Dover Amendment to be an anti-discrimination

statute. Had the Commonwealth of Massachusetts intended to prohibit

discrimination against religion and religious land uses, it easily

could have enacted a law saying "No municipality may discriminate

against a proposed use of land on the basis of the religious nature of

the use or the religious beliefs or affiliation of the user." Such a

genuine anti-discrimination law would be plainly permissible under the

Establishment Clause. However, Massachusetts has instead prohibited

any zoning ordinance that "prohibits, regulates or restricts" religious

uses. The effect of this broader language goes far beyond prohibiting

religious intolerance, by exempting religious users from the ordinary

zoning process and by granting them a "free pass" with regard to

perhaps the most important issue in zoning regulation--location.9 In

my view, either the Dover Amendment responds to a purpose substantially

9While the Dover Amendment allows for "reasonable regulation" of certain
aspects of physical structures, there can be no dispute that the
statute requires that religious uses be permitted on each and every
parcel of land in every zoning district in the Commonwealth.

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broader than merely preventing religious intolerance, or the statute is

substantially broader than its purpose. Either way, the statute should

not receive a "free pass" of its own as if it were merely an anti-

discrimination measure.

Second, the Dover Amendment does not embody the "benevolent

neutrality" deigned by the Supreme Court to be the proper balance

between the competing mandates of the Religion Clauses. A "neutral"

statute, in any ordinary sense of that word, would permit (and require)

religious uses and religious users to operate on an even playing field

with other uses and users, without special hindrances and without

special advantage. The Dover Amendment, in contrast, eschews

neutrality to place religion in an exalted position, exempt from the

ordinary land-use decision making process.

The majority justifies this special treatment by holding

that, here, religion is just one beneficiary of a law that provides

benefits to a variety of groups and that, even if the benefit were

restricted just to religion, the Dover Amendment would be justified as

an attempt to remove an obstacle to the free exercise of religion.

Although I would agree with either justification in principle, neither

is applicable here.

The majority is of course correct to recognize that religious

entities may be the beneficiaries of laws that, for secular reasons,

benefit a variety of groups. See Majority Op. at 11 (citing Walz v.

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Tax Comm'n of City of New York, 397 U.S. 664 (1970), and Mueller v.

Allen, 463 U.S. 388 (1983)). The lesson that I draw from cases such as

Walz and Mueller is that, when religion is logically a member of some

cohesive group to which a benefit is granted for a secular purpose, the

Constitution does not demand the strange result of denying an otherwise

available benefit to a group solely because of the group's religious

nature. However, the uses protected by the various provisions of

Chapter 40A, § 3, of the Massachusetts General Laws do not comprise any

cohesive scheme comparable to that in Walz and Mueller. It is hard to

imagine what common secular purpose unites such apparently divergent

interests as religious land users, HAM radio operators, and residents

who choose to use solar power in their homes. The only common scheme

that the majority offers is that "these uses, though important to all

communities, would be at risk of exclusion from certain zoning areas

because of local prejudice unrelated to their compatibility with the

essential nature of the existing community." Majority Op. at 11. Even

assuming arguendo that these uses are in fact "important to all

communities" and that there is a real "risk of exclusion," I submit

that neither the appellees nor the majority have shown that such

exclusion would be "unrelated to compatibility with the essential

nature of the existing community." Other than outright discrimination,

which I heartedly agree could be properly prohibited (by an appropriate

anti-discrimination statute), the majority can only suggest vaguely

-28-
that religious uses might be excluded based on a "general aversion to

change in the neighborhood." See Majority Op. at 12. More telling,

however, are the motivations noted by the majority in another section

of its opinion--increased traffic and noise, aesthetic considerations,

and impact on commercial development. See id. at 14. These concerns,

of course, are directly related to the compatibility of a particular

use or user with the essential nature of the existing community. In

fact, far from evidencing some kind of religious intolerance (none of

which is alleged in this case, by the way), these are precisely the

kinds of secular concerns which form the basis for all zoning

regulation.

The Dover Amendment insulates religion, HAM radio operators,

solar energy users, et cetera, from these typical zoning concerns for

one simple reason, which the majority recognizes--the state considers

these uses "beneficial." Although the state may generally be free to

protect a use or activity solely on the basis that the state likes it,

the Establishment Clause prohibits such bare favoritism where the

beneficiary is religion.

Nor do I think that the Dover Amendment can be justified as

a governmental action aimed at lifting burdens on the free exercise of

religion. See Maj. Op. at 12-13 (relying on Corporation of the

Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.

Amos, 483 U.S. 327 (1987)). The majority states broadly that religious

-29-
users face local sentiments "ranging from outright hostility to

indifference to the needs of religious organizations." Maj. Op. at 14.

Apart from religious intolerance, however, (which, again, I fully agree

can and should be prohibited by a proper anti-discrimination measure),

the majority points only to routine zoning considerations such as

concern with traffic, noise, aesthetics, and commercial stimulus as

presenting potential "burdens" on the free exercise of religion. It

may be true that religious users face these common obstacles in the

zoning context, but only to the extent that all land users face them.

Frankly, I cannot see that requiring religious users to participate in

the ordinary process by which local land-use decisions are made amounts

to such a burden on the exercise of religion as to justify a blanket

preference like the Dover Amendment. Cf. Amos, 483 U.S. at 336

(finding that uncertain threat of liability imposed a "significant

burden" on religious groups). Nor can I agree that the Dover Amendment

merely "allows religious groups to advance their own cause" rather than

constituting state promotion of religion. Through the Dover Amendment,

Massachusetts has enacted a bare preference for religious uses of land

and has placed the entire weight of the Commonwealth behind that

preference. "Benevolent neutrality" and appropriate accommodation of

religion are laudable and constitutional objectives, but the Dover

Amendment simply goes too far, in my opinion. See Amos, 483 U.S. at

-30-
334-35 ("At some point, accommodation may devolve into 'an unlawful

fostering of religion . . . .'").

Furthermore, just as I differ with the majority somewhat in

my reading of Walz, Mueller, and Amos, I also have difficulty accepting

the majority's distinction of other Supreme Court precedents. Unlike

the majority, I find the Supreme Court's decision in Estate of Thornton

v. Caldor, 472 U.S. 703 (1985), quite persuasive here. In the

fundamental zoning consideration of location, the Dover Amendment

provides religious users with precisely the kind of "absolute and

unqualified right" rejected in Thornton. Id. at 709. Just as in

Thornton, the Dover Amendment makes "no exception for special

circumstances, . . . no exception when honoring the dictates of

[religious users] would cause . . . substantial economic burdens or

when . . . compliance would require the imposition of significant

burdens on other[s, and] . . . no consideration as to whether the

[municipality] has made reasonable accommodation proposals." Id. at

709-10.

Likewise, I read the Supreme Court's fractured decision in

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), to support striking

the Dover Amendment. As Justice Brennan stressed on behalf of three

justices:

[W]hen government directs a subsidy exclusively
to religious organizations that is not required
by the Free Exercise Clause and that either

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 burdens nonbeneficiaries markedly or cannot
reasonably be seen as removing a significant
state-imposed deterrent to the free exercise of
religion, . . . it "provides unjustifiable awards
of assistance to religious organizations" and
cannot but "convey a message of endorsement" to
slighted members of the community.

Texas Monthly, 489 U.S. at 15. Justices Blackmun and O'Connor stated

that "[a] statutory preference for the dissemination of religious ideas

offends our most basic understanding of what the Establishment Clause

is all about," id. at 28 (Blackmun, J., concurring), and I believe the

same is true of a statutory preference for religious users in zoning

matters.

In summary, I cannot agree with the majority's acceptance of

the Dover Amendment as a tolerable accommodation of religion. I would

hold that the statute fails both the purpose and effects prongs of the

Lemon test, and I would declare the Dover Amendment unconstitutional.

I am slightly more troubled by the need to strike down the

Belmont bylaw. Unlike the majority, I am not entirely persuaded that

the Dover Amendment and the Belmont bylaw must stand or fall together.

After all, what troubles me about the Dover Amendment is largely the

fact that it removes religious users from the ordinary land-use

decision making process and thus places them in a position of

considerable advantage over nonreligious uses and users. The Belmont

bylaw would not necessarily raise such concerns, because a local zoning

bylaw merely represents the product of precisely that ordinary local

-32-
decision making process which, if done on a "level playing field,"

properly determines local land-use issues. However, because the

Belmont bylaw is so closely tied to the Dover Amendment, I would find

that it is incurably infected with the unconstitutionality of the state

statute and must be stricken. I do not suggest, however, that the

Establishment Clause would prohibit the Town of Belmont from enacting

a bylaw permitting religious uses in any or all of its zoning

districts, so long as such bylaw were enacted through the ordinary

land-use decision making procedures.

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