Friday, December 31, 2004

House-Group Laws and Screening Effects

Sometimes legal restrictions have unintended screening effects.

The City Council of McKinney, TX (somewhere near Dallas) last week repealed city ordinances that prohibited certain groups - churches, synagogues and religious groups - from having services in a home. A nascent church group had been attracting 20 or 30 people to Sunday services in a home, and municipal authorities ordered them to cease (an unfriendly neighbor had complained). The group went to court alleging the local ordinance was unconstitutional, because it targeted only religious groups; homeowners hosting non-religious gatherings faced no such restrictions. The City settled, repealing the restrictions and reimbursing the church’s legal fees to date. The Liberty Legal Institute , legal advocates for religious-freedom issues, handled the case and heralded it as a victory. Apparently similar cases are arising around the country. (Congrats to LLI, by the way - this is an example of the type of lawyer activism I was trying to affirm with my post about Special Interest Law Schools).

It is surely in the interest of efficiency that the City settled the case. Litigation would have been a costly use of taxpayer money, and it does seem unlikely that the ordinance could pass constitutional muster, singling out groups based on their religious purpose (it infringes on both religious liberties and right to assemble). A local chapter of the NRA, Girl Scouts, Tupperware parties, Hell’s Angel’s meetings, or Klansmen could meet freely (not implying any connection between these examples), but not a small religious group. Of course, some rules affect everyone – fire codes, noise-nuisance rules, etc. – but the restrictions in this case targeted religion.

Incidentally, the church in question is already renting warehouse space nearby, and has now grown to 65 members. Perhaps it would have outgrown the house quickly anyway, making the City’s actions premature and unnecessary. On the other hand, perhaps moving out of a home spurred the growth of the group by giving it more of an appearance of legitimacy in the eyes of newcomers.

Constitutional issues aside, religious home groups present interesting practical issues. Churches (I’m going to switch to this term for shorthand, but I mean to include any type of religious group) are different than Scouts or the local NRA: they sing, they grow, they like to meet more and more frequently as more people come, and they attract families. Families come in family cars (lots of minivans), which they park up and down the street; in contrast, parents often drop their little Scouts off for their meetings and pick them up afterward. (Let’s forget about the motorcycle club for a minute). Successful church groups present problems that are worse in the short term (more people, more cars, more singing, and more members recruiting others, which leads to more people, more singing, etc.), but the trouble is relatively short-lived, because they outgrow their family room and need to rent a public place. Less successful groups continue home meetings longer, but are more likely to fit all the cars in their driveway and bother the neighbors less. Thus the problems usually wash out – either the group grows and moves into a more conventional church building, or dwindles and presents no concerns for outsiders. It is understandable that local officials have initial concerns about the cars parked on the street, but it is a feature of American religious freedom – there’s not a good way around it.

This feature of American religious freedom – basically, religious innovation started from the home to avoid prohibitive startup costs – parallels the other types of freedom for innovation in our society. While new commercial ventures are sometimes spawned by the R&D branches of existing corporate conglomerates, the kid-in-his-garage-inventing-Apple-computers is the stuff of urban legends, and inspirational testimonial to capitalism and freedom. Some of the best things in America came from someone’s home.

The current system, however, tips the scales a little bit away from religious freedom or innovation. Property tax exemptions, for example, mostly benefit churches with elaborate buildings and prime real estate. These tend to be older, wealthier, institutionalized churches (with occasional bizarre exceptions, of course) or churches whose priority is to invest their donor’s offerings in luxurious digs. The legal scheme favoring grandiose church buildings creates an entrenchment effect, a type of entry barrier for newer churches who must rent their space. Rent will be high enough to cover the landlord’s property taxes. Though small and strapped for cash, they are taxed indirectly for their meeting place; entrenched wealthy churches are not. This is a shame, because often the priorities of newer churches are to bring valuable services to the community, and to preach a message that challenges us instead of indulging our complacency. Similarly, immigrant churches are often newer and smaller, and unable to get a building (though some do). Groups with new, valuable insights, or updated ways of presenting their beliefs, often have the same plight.

This is not, however, a call for the abolition of religious tax exemptions. Taxing church properties would be politically infeasible and would have a chilling effect on religion generally; it’s probably better not to touch it. Removing the exemptions would also have the perverse effect of forcing more churches to have shabby or even marginally unsafe facilities (or to crowd into homes even more often and for longer terms), and this would be a net social loss for many communities. On the other hand, an irony of the current system is a chilling effect on some new churches that may have valuable things to offer.

There is, I suppose, some benefit for the rest of us in such entry barriers. Some new religious groups have noticeably unhealthy tendencies. There may be some social gain (in the consumer protection sense) in screening out lunatics and letting the “better” ones survive and thrive. But more “traditional” churches, even the kind with lots of cathedrals, also have problems and scandals (as highlighted by the media in the last year or two). The screening effect of the legal regime may entrench the established institutions to the point of making them feel unaccountable. In contrast, I know of house groups around Austin and Houston, for example, that require their clergy to be happily married rather than single, that refuse ever to take offerings or collections, etc. – alternative positions that can help prevent abuse. Restrictions like those in McKinney (now happily repealed) could hinder such groups from getting started and thriving.

(Incidentally, if law students reading this are interested in a summer internship with the Liberty Legal Institute, click here for more info).