Key point 7-09. A nuisance is any use of property that results in significant annoyance or discomfort to neighboring landowners. Some church activities may constitute a nuisance. The courts will weigh the annoyance and discomfort to neighboring landowners with the church’s constitutional right to exercise its religion. In some cases the courts may order a church to limit the activity causing the nuisance, or eliminate it entirely.
A federal district court in Rhode Island ruled that a city’s sound ordinance that exempted church bells did not violate the nonestablishment of religion clause of the First Amendment. A homeowner (the “plaintiff”) claimed that the excessive clapping, gonging, tolling, pealing, ringing, and chiming of the bells of two neighboring churches profoundly disturbed his right to the quiet enjoyment of his home, effectively forcing on him a “call to worship” that he does not want to hear. The plaintiff sued the city, claiming that its noise ordinance’s exemption of church bells violated his constitutional rights and constituted a public nuisance.
In 1995, a man (the plaintiff), his wife, and four children moved into an older home in the seaside Town of Narragansett, Rhode Island, located three blocks from the shores of Narragansett Bay. Because of the cooling effect of the Bay breezes, the home has never been air-conditioned. The family’s home was a block away from two churches, both of which had bell towers housing at least one bell. However, at that time, the bell in “Church A’s” belfry was inoperable and silent, while “Church B’s” bell was unamplified.
In 2001, Church A repaired and upgraded its bell, adding electronic amplification, a motor, a timer and a clapper. Church B also added electronic amplification. Since then, the bells of Church A chime four times on Saturday and Sunday, three times on Monday through Friday, in addition to marking weddings, funerals, and other special occasions. At 6 p.m. daily, the bells of Church A ring out a call to pray “the Christian prayer and devotion, the ‘Angelus.’ Meanwhile, the bells of Church B mark the hours during daylight. The plaintiff has measured the intensity level of the chiming, gonging, clapping, pealing, and pounding of these bells and alleges that it has approached 100 decibels.
The plaintiff claimed that the impact of this accumulation of sound has been catastrophic: despite no air-conditioning, he is forced to keep the storm windows closed and to wear earplugs, his marriage has collapsed, and he has been alienated from his children. Fearful of the impact of the amplified sound, he refrains from inviting his infant grandchildren to his home. Further, as someone who professes no religion, he alleges that he is deeply troubled by being forced to hear a call to worship in which he is not interested; he perceives that the amplified bells are forcing him to listen to proselytizing from which he cannot escape even in the privacy of his home.
The Town of Narragansett has had a noise ordinance that is designed to “promote an environment free from excessive noise without unduly prohibiting, limiting, or otherwise regulating the function of certain noise-producing equipment which is not amenable to such controls and yet is essential to the quality of life in the community.” The ordinance contains several exemptions, including “devices used in conjunction with places of religious worship” along with various secular bell exemptions.
The plaintiff sued the city of Narragansett, claiming its noise ordinance violated the nonestablishment of religion clause of the First Amendment. The court noted that the most common test for evaluating the constitutionality of a government practice challenged under the nonestablishment of religion clause was announced by the United States Supreme Court in a 1971 ruling, Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the so-called Lemon test, a government law or regulation must satisfy three criteria to survive a challenge under the First Amendment’s nonestablishment of religion clause: It must (1) reflect a clearly secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) avoid excessive government entanglement with religion. The court concluded that each of these three conditions was met, and therefore the noise ordinance did not violate the First Amendment:
First, the noise ordinance’s “expressly stated purpose is purely secular—it regulates decibels, blind to the content of the affected speech, to protect town residents from noise disturbances while permitting noises that are essential to the quality of life.” The court noted that the noise ordinance exempted “performances by the ringing of bells in a tower,” a purely secular exemption “unrelated to religion since it applied equally to bells in a school, university, governmental building, factory, in short anywhere, and represent the secular determination of the town council that bells are a positive contributor to the quality of life in Narragansett and should not be subject to restrictions on sound.” The court concluded, “Mindful of the history and tradition of bell-ringing in Rhode Island and New England, I find that the noise ordinance reflects a clearly secular purpose.”
Second, the court concluded that the noise ordinance’s primary effect was not the advancement of religion. It acknowledged that the ordinance may benefit places of worship that have bells, but noted that “the nature of the benefit is secular and totally unrelated to whatever content the churches might choose to inject. Moreover … allowing people with religious faith to advance their religions is not what is meant by ‘establishment of religion.'” The court noted that Church B used it bells solely to toll time—an activity devoid of religious significance.
Third, the court concluded that the noise ordinance created no excessive entanglement between church and state.
The court referred to prior rulings by the Supreme Court concluding that two “religious” practices (legislative chaplains and opening city council meetings with prayer) survived establishment clause challenges on the basis of their long-standing status dating back to the founding of the nation and its Constitution. For example, the very Congress that adopted the First Amendment itself opened sessions with prayer and approved the employment of chaplains. The appeals court summarized the historical significance of bell ringing:
In New England, at the time of the founding of the nation, “eighteenth-century Americans inhabited a world in which bells sounded frequently, in different ways, and for a variety of purposes,” quoting Lubken, Joyful Ringing, Solemn Tolling: Methods and Meanings of Early American Tower Bells, 69 Wm. & Mary Q. 823, 823 (2012). For example, “tolling bells rang in Providence, Rhode Island, on March 2, 1775, when the Sons of Liberty consigned East India tea to the flames of a bonfire. Most communities used ringing to mark the passage of time, to open markets, to summon churchgoers to religious services and civic leaders to meetings, and to call inhabitants to mutual assistance in moments of danger. Ringing was also the method used for veneration and celebration: to observe the king’s (and later the president’s) birthday, to honor the arrival of important figures, to mark significant dates such as Christmas Eve and the anniversary of the thwarted Gunpowder Plot, and to respond to news of military and political victories.” As one historian put it, “bells and other devices—some seldom thought of as sonic instruments—did more than ring out to the heavens; they rang in the state.” Rath, How Early America Sounded 50 (2003). “New England towns used instrumental sounds to order their worlds. Bells were important from the very beginning of Puritan New England.” Id. Since the seventeenth century, they have become deeply embedded in both the New England and the national tradition. Narragansett’s decision to exempt performing and signaling bells—both secular and sectarian—reflects this historic legacy … .
Accordingly, this court must “acknowledge a practice that was accepted by the Framers [of the Constitution] and has withstood the critical scrutiny of time and political change.” (quoting the Supreme Court’s decision in Town of Greece, 134 S.Ct. at 1819)
The court noted that the United States Supreme Court “has long recognized a zone of permissible accommodation of religion within which governments may, and sometimes must, exempt religious practice from regulation without running afoul of the Establishment Clause” (citing Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987)). It then added:
To the extent that they have considered the question, courts have concluded that an exemption to a noise ordinance for church bells and chimes, even when allegedly content-based because linked to religious services, is a legitimate accommodation to religious belief. Such an exemption is not an impermissible establishment of religion under the First Amendment because church bells are a common part of the background noise of a city, a “traditional and generally unobtrusive aspect of a tranquil environment,” and have become “part of the fabric of our society … a tolerable acknowledgment of beliefs widely held among the people of this country.”
What This Means For Churches:
This case represents the most thorough analysis of the constitutional status of city noise ordinances that exempt specified religious and secular uses of bells from regulation. To the extent that such ordinances are neutral in scope, and do not accord religious organizations special favor that is denied secular organizations, there is no constitutional violation. Devaney v. Kilmartin, 88 F.Supp.3d 34 (D.R.I. 2015).