Anthony Picarello is vice-president and general counsel of the Becket Fund for Religious Liberty, headquartered in Washington, DC. He was one of the attorneys who wrote the successful brief filed by the Becket Fund on behalf of the Cottonwood Christian Center in the city of Cypress, California. Local Liberty editor Ken Masugi interviewed Picarello at the Becket Fund offices in Washington, D.C.
LOCAL LIBERTY: You won. Congratulations. Our readers can read the opinion by clicking here, but what would you take to be the most important things other religious institutions can take away from this? How would you relate the two in this particular case?
PICARELLO: Well, I would say it is a victory for both religious rights and property rights. And in fact, it is a victory precisely because both rights have been asserted in conjunction. Imagine what value is in the right to assemble for worship, if you have no place actually to assemble. This is a recurring theme within the legislative history and subsequent writing on the Religious Land Use and Institutionalized Persons Act (RLUIPA) itself. It's also something that has been recognized by the Supreme Court itself in free exercise jurisprudence.
LOCAL LIBERTY: How does this particular case fit in with the Becket Fund's overall mission?
PICARELLO: Well, we are not a property rights shop, of course, but it fits in our commitment to protect the free exercise rights of people in institutions of all religious traditions, including the right to assemble for worship. We have dedicated a lot of institutional resources to RLUIPA litigation precisely because land use is an area where government officials are especially callous to religious concerns and courts seem to be especially accommodating to that callousness. As I mentioned, the religious land use cases rarely implicate only free exercise concerns. They also implicate issues of free speech. Wherever there are situations where there's a "teaching moment," so to speak, we're especially interested.
LOCAL LIBERTY: What would the consequences have been had the case gone the other way?
PICARELLO: The consequences for churches nationwide would have been catastrophic. A court would have affirmed that a local government could use the eminent domain power against a church simply because it is not revenue generating. If a revenue increase was a sufficient cause for taking land, then all churches would be sitting ducks. They would be vulnerable to taking at any time. And in difficult economic times, that temptation may turn out to be too difficult for local government officials to resist, especially if they perceive themselves as having a blank check.
LOCAL LIBERTY: Obviously in California, we're burdened by the consequences of Proposition 13. But obviously now we're dealing with a U.S. constitutional right. Have you thought about alternatives cities can take given the burdens California municipalities bear?
PICARELLO: In the Cottonwood case in particular, that set of considerations wasn't really driving the situation, at least not in our view. Part of our evidence for that was, even during these difficult economic times, the city of Cypress has been running a surplus, so they're hardly strapped for cash. And when they cry poverty and claim that they need this particular property to generate revenues, it just lacks credibility on its face.
LOCAL LIBERTY: What if there actually were real financial considerations?
PICARELLO: It would be extraordinarily shortsighted of any local government, no matter how strapped for cash, to attack houses of worship and other charitable organizations simply because they don't provide revenues in the short term. They're overlooking the reasons churches are granted tax exemptions in the first place. They serve the public good because they provide many of the services that would otherwise have to be paid for by government through taxation. And, they play a critical role in civil society. What cities ought to do is prioritize revenue increases through other means.
LOCAL LIBERTY: There are aspects to church
existence now that might not necessarily reflect worship--consider socializing, day-care, schools, and a whole host of other functions--that many people would argue are secular in nature and therefore regulating them would be justified. How would you respond to that?
PICARELLO: Well, certainly things like day-care and schools have secular analogues, and part of what houses of worship do when they institute day-care and schools is to perform a secular function in a distinctly religious way. To simply describe day-care and schools as categorically secular, simply because there are such secular institutions elsewhere, doesn't do justice to the fact that religious day-care and religious schools perform a distinctive role. I also think that this impact that houses of worship have on local communities is nothing new. The specter of the mega-church is very often raised in response to strengthening protections for houses of worship. It has been a long time now since houses of worship also started instituting schools alongside them. It's been a long time since houses of worship started providing services to the poor in the form of soup kitchens in adjacent buildings. The same thing goes for day-care. The same thing goes for a lot of services that have fallen within this label, this epithet of "mega-church." But these are the kinds of things that houses of worship have been doing for years, and though the scale may have increased, the general form has been no different than it has in the past.
LOCAL LIBERTY: What advice would you give to churches and local governments in general as a result of what we've seen in Cypress?
PICARELLO: To churches, I would say that they should just be concerned to be good neighbors. I think that that will accomplish a lot to prevent these conflicts from arising. I think many churches tend to do that in the first instance, which is why there aren't constant fights along these lines. On the other hand, that is often not enough. Being reasonable in the face of unreasonable government action is precisely what leads to these kinds of cases. So the corresponding bit of advice to them would be, be reasonable, and when you have nonetheless confronted unreasonable government action, you should be entirely willing to assert your rights. And I guess on the other side of that equation, to local governments, I would only highlight to them that they can't just treat a house of worship the same way they treat a movie theater or a Moose Lodge. It's different under the constitution and they need to be sensitive to that. Religious neutrality cannot mean religious callousness, utter disregard of anything distinctive that religion may bring.
EDITOR'S NOTE: On February 20, 2003, the Cottonwood Christian Center agreed to sell the coveted 18 acres for $18 million and purchase 28 acres of the nearby Cypress Golf Course for about $17 million, where they will build their church. Once escrow closes on both land parcels, Cypress can proceed with its plans and Cottonwood will drop its religious discrimination lawsuit.
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