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Posted 24 Feb 2001   For week ended May 14, 2000
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Sent on Mormon-News: 17May00

Summarized by Kent Larsen

Will Boston Temple Lawsuit get to Supreme Court?
(Temple Ruling Under Scrutiny)
Boston Globe pg1 14May00 D1
By Caroline Louise Cole: Globe Correspondent
US Implications in Belmont Case

BELMONT, MASSACHUSETTS -- In a front page story in the Boston Globe, Cole says the four-year-long dispute over the Boston Temple could reach the U.S. Supreme Court. After a three-judge panel of the federal Appeals Court in Boston ruled two weeks ago that the law on which Belmont Massachusetts based the zoning exemption allowing construction of the Temple was constitutional, the Temple's neighbors that brought the lawsuit say they will appeal to the full Appeals Court, one step away from the U.S. Supreme Court.

And legal and zoning specialists consulted by Cole agree that the issue is significant, and may be of interest to the Supreme Court. "The question of municipal control over church location and architecture is a live issue, and cases are being hotly contended around the country," said zoning specialist Eric Wodlinger of Boston law firm Choate Hall and Stewart. "Lower courts are making opposing decisions, which could very well mean the Supreme Court needs to step in."

The case hinges on Massachusetts 'Dover amendment,' adopted in 1951, which exempts religions and schools from many zoning regulations. The Temple's neighbors claim this benefit's religions unfairly, giving them an advantage and, essentially, establishing religion in violation of the U.S. Constitution's First Amendment. But the law was put in place to keep local governments in Massachusetts from using zoning laws to keep religions out. The law is known as the Dover amendment because it was passed after the town of Dover rejected construction permits for a Catholic Church school.

Wodlinger thinks that the split decision of the appeals court could have gone either way. He said that the chief judge, Juan Torruella, wrote a persuasive dissent of the ruling, saying that requiring religions to abide by the same zoning regulations as others is not "an unfair burden to the exercise of religion."

But Harvard professor of urban design and attorney Jerold Kayden says that the majority decision is a "reasonable accommodation." But Kayden isn't sure if the amendment is necessary, "I would have been very surprised if the court had overturned Dover, but on the other hand I found it odd the rationale was based on ongoing discrimination," Kayden said. "Certainly there was valid reason for Dover 50 years ago, but I am not sure that level of discrimination exists today. The court, however, disagreed and said it is still relevant."

US Appeals Court Judge Frank M. Coffin, who wrote the opinion for the majority, wrote that he thought the Dover amendment was a legitimate way of handling zoning issues and religion, "In our view, the favorable attitude toward religion reflected in the Dover Amendment does not constitute a fostering 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," Coffin wrote.

But the reason that the issue may end up in the Supreme Court is not just that it isn't completely clear. It has also arisen in many other disputes around the country. The Washington state Supreme Court ruled recently that the city of Seattle can't control the height of a church's steeple (while a court in Boston ruled, in a separate challenge to the Boston Temple, that the town could control the height of the steeple on the Boston Temple). New York City was recently allowed to stop the Catholic Church from tearing down a city landmark to make way for an apartment building.

Mormon News has also covered a number of zoning issues. The Nashville Temple faced zoning challenges, which eventually led the LDS Church to locate the Temple on a different site, and build a smaller Temple instead of the large Temple planned. Neighbors of the proposed Temple in Harrison, New York (near White Plains), are using zoning laws to try and keep the Temple from being built there.

Nor is the issue limited to Temples. Mormon News has covered a challenge to an LDS Chapel near Albany, which was eventually resolved in favor of the LDS Church. But, on the other hand, the LDS Church lost a zoning dispute in Manassas, Virginia, and chose to build a chapel outside the city because of the dispute.

Boston Temple neighbor Charles Counselman and his co-plaintiffs are ready to pay their attorneys to mount an argument before the U.S. Surpreme Court, and think the dispute will likely end up there, "We always expected this case would eventually make its way to the Supreme Court because even if we won 3-0 in this round, the church would have appealed it," Counselman said. "We filed this case originally because we felt what is at stake goes well beyond Belmont."


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