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For week ended January 09, 2000 Posted 24 Feb 2001
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Summarized by Kent Larsen

Appeals Court hears Mormon temple suit
Belmont MA Citizen-Herald 5Jan00 N1
By Alan Silverman: Correspondent

BELMONT, MASSACHUSETTS -- The Belmont Citizen-Herald's coverage of the U.S. First Circuit Court of Appeals' hearing Monday, January 4th on the Boston Temple lawsuit contains interesting details about the arguments presented to the court, and the questions that the court asked. While the arguments presented by both the LDS Church and the Belmont Temple's neighbors were as expected, the Court's questions seemed to imply that the building's size is an issue in the case.

The Belmont neighbors of the temple site argued that the Belmont Zoning Board of Appeals erred when it granted a building permit to the LDS Church for the Temple, because it relied on Massachusetts' Dover Amendment, which the neighbors claim is unconstitutional because it establishes religion. They also claim that a related Belmont bylaw is also unconstitutional. U.S. District Court Judge Douglas Woodlock issued an opinion May 24, 1999, saying that the Dover Amendment was constitutional. The neighbor's appealed that ruling to the Circuit Court.

The neighbors' argument rests on interpreting the U.S. Constitution's First Amendment, which says "Congress [and the states] shall make no law respecting an establishment of religion..." The neighbors claim that this means the government shouldn't favor religion over other uses, which the Dover Amendment clearly does. It reads, "No zoning ordinance or by-law shall ... regulate or restrict the use of land or structures for religious purposes."

But the Church argued that the constitution merely intended to keep the government from establishing a particular religion, as opposed to religion in general. From this view, the Dover Amendment is actually protecting religions from discrimination, keeping a local government from using zoning laws to keep out religions it doesn't like. Judge Woodlock agreed, "The Dover Amendment plainly stated that it intended to prevent discrimination against land uses for religious purposes, but nowhere did it state or suggest that it was sponsoring or endorsing land use for religious purposes."

Michael Peirce, attorney for the neighbors, told the three-judge panel that the Dover Amendment favors religions over non-religious groups. In this case, Belmont zoning law normally forbids places of assembly from residential areas, but the Dover Amendment allow religions to ignore that provision. He argued that for the Dover Amendment to be constitutional, it must have a secular purpose, instead of just protecting religions.

The court then asked Peirce, "But isn't avoiding interference with religion a secular purpose?" and Peirce responded that "There may be an accommodation to religion, but not an abdication."

The court also pointed out that the town still could enact "reasonable regulations concerning the bulk and height of structures" and restrict parking and other issues that didn't concern the use of the land or use of the building. The Church met Belmont's restrictions in these areas

The LDS Church's attorney, Paul Killeen, made this clear. He said that the size of the building meets zoning requirements. "Anyone - a church, a school, a homeowner" - can erect a six-story building on the nine-acre parcel in Belmont, said Killeen. "If Bill Gates wanted to put up a six-story building there, he could," he added after the hearing.

Killeen also argued that the Dover Amendment does have a secular purpose. He told the court that it protects other uses besides religious uses, including educational uses, day care and others. He also argued that the law can benefit religion without establishing it. "Does it promote religion or does it leave religion alone to do what it does?" he argued.

While the Church was supported by several "friend of the court" briefs from various religions and from the Massachusetts Attorney General's Office, only the Church's attorney presented arguments.

Mark White, co-counsel with Peirce for the neighbors, told reporters after the hearing that regardless of the decision, he expected an appeal to the U.S. Supreme Court. He said that if his clients loose, they will certainly appeal.


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