Key point 7-08. Most cities have enacted building codes that prescribe minimum standards in the construction of buildings. The courts have ruled that these laws may be applied to churches so long as they are reasonably related to the promotion of public health and safety.
Many municipalities have enacted building codes prescribing minimum standards in the construction of buildings. Such codes typically regulate building materials, construction methods, building design, fire safety, and sanitation. The validity of such codes has consistently been upheld by the courts.173 See YOKLEY, supra note 126, at § 31-2.
The courts consistently hold that churches must comply with municipal building codes that are reasonably related to the legitimate governmental purpose of promoting the public health, safety, morals, or general welfare. To illustrate, one court ruled that “the building of churches is subject to such reasonable regulations as may be necessary to promote the public health, safety, or general welfare.”174 Board of Zoning v. Decatur, Ind. Co. of Jehovah’s Witnesses, 117 N.E.2d 115, 118 (Ind. 1954). Accord City of Solon v. Solon Baptist Temple, Inc., 457 N.E.2d 858 (Ohio App. 1982); City of Sherman v. Simms, 183 S.W.2d 415 (Tex. 1944); Wojtanowski v. Franciscan Fathers Minor Conventuals, 148 N.W.2d 54 (Wis. 1967); Hintz v. Zion Evangelical United Brethren Church, 109 N.W.2d 61 (Wis. 1961).In another case, a municipality brought an action against a church in order to prevent the continued use of a church school that did not comply with the building code.175 City of Sumner v. First Baptist Church, 639 P.2d 1358 (Wash. 1982).The church school was allegedly deficient in several respects, including inadequate floor space, inadequate ventilation, no approved fire alarm system, no fire extinguishers, no fire detectors, no sprinkler system, no fire-retardant walls, no exit signs, uneven stairs, and doors that did not open outward. The Supreme Court of Washington acknowledged that application of the building code to the church school would result in a closing of the school, and that this in turn would impair the church members’ constitutional right to guide the education of their children by sending them to a church-operated school. However, the court observed that this constitutional right was not absolute, but could be limited by a showing that the building code was supported by a compelling state interest and that it was the least restrictive means of accomplishing the state’s interest.
Similarly, another court upheld the action of a municipality in ordering substantial renovations in a church-operated school to bring it into compliance with the building code.176 Faith Assembly of God v. State Building Code Commission, 416 N.E.2d 228 (Mass. 1981).The court rejected the church’s claims that the less stringent building code provisions applicable to church buildings should apply to the school, and that application of the more stringent building code provisions applicable to schools would infringe upon the church’s right to freely exercise its religion. The court observed:
This is not a case where application of the Code forces a choice between abandoning one’s religious principles and facing criminal charges. … The Code does not restrict or make unlawful any religious practice of the plaintiff; the Code simply regulates the condition of the physical facility if it functions as a school. …
It is also clear that state laws establishing minimum standards for the safety of children in child care facilities and enforcing such standards through inspections and licensing does not violate the religious freedom of a children’s home administered by a religious organization.177 Roloff Evangelistic Enterprises, Inc. v. State, 556 S.W.2d 856 (Tex. 1977), appeal denied, 439 U.S. 803 (1978). See also Corpus Christi Peoples’ Baptist Church, Inc. v. Texas Department of Human Resources, 481 F. Supp. 1101 (S.D. Tex. 1979), aff’d, 621 F.2d 638 (5th Cir. 1980); State Fire Marshall v. Lee, 300 N.W.2d 748 (Mich. 1980); State v. Fayetteville Street Christian School, 258 S.E.2d 459 (N.C. 1979), vacated, 261 S.E.2d 908 (N.C. 1980), appeal dismissed, 449 U.S. 808 (1980).
In 2015 the United States Supreme Court ruled that a city ordinance containing strict limitations on the display of signs by churches and some other charities constituted a content-based restriction on speech in violation of the First Amendment’s free speech clause.178 Reed v. Town of Gilbert, 135 S.Ct. 2218(U.S. 2015).The town of Gilbert, Arizona (or Town), has adopted a comprehensive “Sign Code” governing the manner in which people may display outdoor signs. The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. One exemption is for “Temporary Directional Signs Relating to a Qualifying Event.” This includes any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a qualifying event.” A “qualifying event” is defined as any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” Temporary directional signs may be no larger than six square feet. They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. And, they may be displayed no more than 12 hours before the “qualifying event” and no more than 1 hour afterward. Other exemptions, such as signs communicating a political or ideological message, were much less stringent.
The Good News Community Church (Church) and its pastor wanted to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church’s name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week.
This practice caught the attention of the Town’s Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church’s failure to include the date of the event on the signs. Town officials even confiscated one of the Church’s signs, which the pastor had to retrieve from the municipal offices.
The pastor contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town’s Code compliance manager informed the Church that there would be “no leniency under the Code” and promised to punish any future violations.
Shortly thereafter, the Church and its pastor (the “plaintiffs”) filed a complaint in a federal district court in Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the federal Constitution. The court rejected the plaintiffs’ claims, as did a federal appeals court. The plaintiffs appealed to the United States Supreme Court.
The Court began its opinion by noting that “the First Amendment … prohibits the enactment of laws abridging the freedom of speech.” As a result, a city “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Content-based laws that target speech based on its communicative content “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
The Court concluded:
The Town’s Sign Code is content based on its face. It defines “Temporary Directional Signs” on the basis of whether a sign conveys the message of directing the public to church or some other qualifying event. … Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if [the Town] proves that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. … Thus, it is the Town’s burden to demonstrate that the Code’s differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tailored to that end. The Town cannot do so. It has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code’s distinctions fail. …
The Court observed that its decision “will not prevent governments from enacting effective sign laws” since the Town “has ample content-neutral options available to resolve problems with safety and aesthetics.” For example, the Town’s current Code “regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.” Further, “a sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny.” But “the signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. They are facially content based and are neither justified by traditional safety concerns nor narrowly tailored.”
Key point. Justice Kagan’s concurring opinion noted that “the Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass … the laugh test.”
- An Alabama court rejected a church’s argument that a state law prohibiting it from erecting a sign larger than 8 square feet without a special permit violated its constitutional rights. The Alabama Highway Beautification Act prohibits the erection of signs along a “primary highway” that do not meet certain requirements pertaining to size, location, lighting, and spacing. Among other things, a church sign cannot exceed 8 square feet unless a special permit is issued. A church erected a sign on the property of a private business that was located on a state highway. The sign gave the name of the church, an arrow indicating where motorists should turn to find the church, and three crosses. The state department of transportation ordered the church to remove the sign on the ground that it exceeded 8 square feet. The church protested, claiming that removal of the sign would violate its constitutional right of religious freedom. A state appeals court rejected the church’s argument, and upheld the removal of the sign. The court noted that the Highway Beautification Act “makes no reference to the content of the sign. It merely regulates the manner in which churches may display signs … by limiting their signs to no more than 8 square feet in area. The [Act] does not attempt to regulate the views of the various churches. It simply regulates the size of the signs.”179 Corinth Baptist Church v. State Department of Transportation, 656 So.2d 868 (Ala. App. 1995). Accord Wilson v. City of Louisville, 957 F. Supp. 948 (W.D. Ky. 1997).
- A Colorado court ruled that a church had to demolish or “modify” a new addition that it built in violation of a local building code. The court noted that in determining whether the church had to remove the new addition, three factors had to be considered: (1) good faith reliance on the building permit; (2) the neighbors’ injury compared to the builder’s investment; and (3) general respect for municipal ordinances. However, the court noted that these three factors are considered only if a builder acted in good faith. The court concluded that the facts in this case did not demonstrate that the church acted in good faith, and therefore the principle of relative hardship could not be applied to protect its new addition from demolition. In support of its conclusion, the court noted that the church started construction without investigating building requirements; it was notified of athirty-foot height restriction prior to issuance of a building permit; when neighbors learned of this violation, they promptly notified the church; and, the church began construction before obtaining a necessary building permit. Moreover, it continued construction even after the city finally notified it of the thirty-foot height limit.180 Olson v. Hillside Community Church, 42 P.3d 52 (Colo. App. 2001).
- A Missouri court ruled that a city did not violate the First Amendment guaranty of religious freedom in refusing to grant a church’s request for a permit to construct a sign on its property. A church applied for a sign permit to construct a monument sign near the entrance of its property. A city engineer denied the permit request for the following reasons: (1) the proposed sign exceeded the maximum allowable height of 10 feet; (2) the proposed sign exceeded the maximum sign face area; and (3) the proposed sign included a changeable letter area in excess of that allowed under code, and included moving letters or characters, which the sign code strictly prohibited. A zoning board affirmed the denial of the sign permit, and the church appealed to the courts, claiming that the city’s sign regulations were an “unconstitutional infringement on the church’s right to freely exercise its religious mission.” A state appeals court concluded that “a mere requirement that a church obtain a special use permit before building … does not infringe on the free exercise of religion.”181 St. John’s Evangelical Lutheran Church v. City of Ellisville, 122 S.W.3d 635 (Mo. App. 2003).
- A New York court ruled that a applying a city’s sign ordinance to a church did not violate the First Amendment. The court concluded that “it is wholly appropriate to impose limitations on a church property and its accessory uses when reasonably related to the general welfare of the community, including the community’s interest in preserving its appearance.” The court noted that because the restrictions imposed on the construction of the church’s sign were not arbitrary and capricious, and because the city sought to balance the church’s request with aesthetic and safety concerns, the city did not act wrongly in regulating the church’s sign request.182 Lakeshore Assembly of God Church v. Village Board, 508 N.Y.S.2d 819 (N.Y. App. 1986).
- A Texas court ruled that a city could compel a church-operated school to close because it failed to comply with various safety provisions in a city building code. A church-operated private school applied to the city for a permit to add a stairwell to its basement so that it could be used for a lunchroom. When reviewing this application, a city building official noticed that the school was not in compliance with the city building code and did not have a certificate of occupancy. The building official inspected the building to determine if it complied with the building code. She concluded that it did not because it did not meet the minimal life-safety requirements. She also concluded that the building posed a substantial danger to its students from fire and smoke because of the inadequate smoke detection system, the narrow corridors, the hollow doors, and the chipboard and wood construction. The city ordered the school to cease operations until it complied with the building code. A state court affirmed this ruling. The court acknowledged that the building complied with the code as long as it was being used as a church, but concluded that “a building being used for church and Sunday school is classified differently than one being used as a school. In determining that a school must comply with stricter safety requirements, the drafters of the building code may have considered the extended amount of time a child spends at school, the use of various appliances to cook lunch, and the increased use of electrical equipment.” The court also rejected the school’s argument that the city’s order violated the First Amendment guaranty of religious freedom. The court noted that the building code is a “religion-neutral” law that is presumably valid even without proof of a compelling government interest. However, even if a compelling government interest were required, the court noted that “as a matter of law, the state has a compelling interest of the highest order in protecting the health and safety of children.”183 Christian Academy of Abilene v. City of Abilene, 62 S.W.3d 217 (Tex. App. 2001).