Is government allowed to “protect” a church … from itself?

  When should courts look behind the thick veil of governmental discretion and conclude that a land use regulation was motivated by an unlawful purpose?

   This and other issues are at stake in a challenge to a land use ordinance of Sinton, Texas, that was adopted soon after the Grace Christian Fellowship established a rehabilitation center for parolees near the church.  The ordinance prohibits parolees from living within 1000 feet of a church (as well as the usual off-limits locales, such as schools).  Opposition to the law has brought together Christian groups and the ACLU.  The Texas Supreme Court will hear the case this spring.

   Laws banning ex-cons from living near schools are unusually upheld under the notion of local governmental discretion to make even unwise land use laws for the “public interest.”  But when the facts (including the timing of adoption) point to a law’s motivation as targeting a specific activity –- and one that implicates freedom of religion –- the usual standard of deference should be flipped around.  What justification is there for picking out churches, where people tend to congregate in large and safe groups, as being off-limits to parolees?  And what if a church, such as the one in Sinton, has created the land use -– shouldn’t the freedom of religion demand that the church hold the power to override an ordinance designed for its “protection?” 

   Religious groups, advocates for ex-cons, and libertarians (and me) all are hoping that Texas’s high court will use the state’s Religious Freedom Restoration Act to flip the usual presumption and strike down the Sinton ordinance’s application.