• A federal appeals court was asked to decide whether a church’s constitutional rights were violated by a city ordinance prohibiting churches from meeting without a special use permit. An Evanston, Illinois zoning ordinance permits churches to locate anywhere in the city provided they obtain a special use permit from the city. To secure a permit, a church must file a detailed plan for the use of the facilities and pay a fee of approximately $400. The city zoning board then holds a hearing and renders a decision. The entire process takes between four and six months. Churches conducting services without a permit are guilty of a misdemeanor and are subject to fines of $25 to $500 per day. A small, fundamentalist church began conducting services in Evanston without a permit. The church met in the pastor’s apartment, and then in a rented hotel room. It sought a permanent location, but allegedly could not find one since landlords either were unwilling to rent to the church until it obtained a permit, or increased the rent to an unaffordable level. The church filed a lawsuit against the city in federal court, alleging that its constitutional rights were violated by the city’s permit procedure. Specifically, it argued that the procedure violated the constitutional guarantees of religious freedom and the “equal protection of the laws.” With regard to the equal protection claim, the church claimed that other organizations (e.g., theaters, funeral homes, hotels, community centers) were not required to obtain permits to operate, and thus the permit procedure treated churches differently and less favorably without any apparent basis. The federal trial court dismissed the church’s religious claim, but it did agree that the city’s permit procedure violated the church’s constitutional right to the “equal protection of the laws,” and it awarded the church nearly $18,000 in damages under title 42, section 1983 of the United States Code. This law (referred to as “section 1983” by lawyers) allows persons and organizations whose constitutional rights are violated to sue the offender for money damages—even if the offender is a city or other government unit. Significantly, the court granted the church a “summary judgment,” meaning that it found the church’s position so clearly correct that it refused to submit the case to a jury. The city promptly appealed this decision to a federal appeals court, which dismissed the case on the technical ground that the church lacked “standing” to challenge the city’s permit procedure. The federal Constitution, as interpreted by the Supreme Court, forbids the federal courts from resolving a case unless the plaintiff has “standing”—meaning that the plaintiff has suffered “some actual or threatened injury” and that the injury “fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” The appeals court concluded that the church lacked standing under this definition and accordingly could not maintain its lawsuit against the city. Why did the church lack actual or threatened injury? For two reasons. First, the city had never enforced the special permit requirement and accordingly there was no threat of legal consequences if the church disregarded it. The court observed: “A party must reasonably assert that it fears enforcement in order to establish standing. Here, given [the city’s] historic policy of non-enforcement and [the church’s] repeated violations of the ordinance without any municipal retaliation, [the church] cannot reasonably assert that they fear enforcement.” Second, the court rejected the church’s claim that its difficulty in locating permanent facilities was caused by the ordinance and established standing. The court found this claim too “conjectural” and “abstract” to create standing. It noted that the church had failed to produce any affidavits from landlords who refused to rent to the church because of its refusal to obtain a permit. It also observed: “[The church] relies on the mere possibility that, absent the ordinance, it could have more easily acquired rental property …. Such speculative claims cannot constitute distinct and palpable injury for purposes of standing. Claims of such vague economic harm are precisely the type of abstract or conjectural allegations spurned by the Supreme Court. [The church] never applied for a special use permit, nor was threatened with punishment for operating a church facility in violation of the ordinance. Thus, any fear of enforcement or increased difficulty in securing housing does not present any real controversy before the court.” This case is very significant (despite the appeals court’s crabbed interpretation of the standing requirement) since it represents another example of a court (in this case, the federal district court) awarding a church monetary damages under “section 1983” for a violation of a church’s constitutional rights. The importance of such rulings cannot be overstated—for they represent a recognition of an extremely potent weapon that is available to churches. To be sure, the federal appeals court dismissed the case, but it did so on for technical reasons that in no way diminish the significance of the trial court’s decision. Further, the appeals court seemed to concede that it would have affirmed the district court’s award of monetary damages had the city ever enforced its permit procedure, or had the church presented more evidence of the unwillingness of landlords to rent to the church. In many cases, these factors will be present, and presumably churches in such cases will be entitled to monetary damages. This, indeed, is a significant development that should be of interest to all church leaders, and their advisers. Love Church v. City of Evanston, 896 F.2d 1082 (7th Cir. 1990).
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