March 20, 2007

Seventeen religious and civil rights organizations, including the Queens Federation of Churches, submitted a brief to the Colorado Supreme Court as amici curae to defend the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The brief was filed in the case of Town of Foxfield v. Archdiocese of Denver, where the state's highest court will decide whether to strike down zoning regulations that targeted religious gatherings at the Rectory of Our Lady of Loreto Parish in Foxfield, Colorado.

The unlikely coalition of amici came together, despite their vast differences, because "they are acutely aware, often by first-hand experience, that zoning laws are commonly applied in a manner that either imposes heavy and unnecessary burdens on religious exercise, or discriminates based on religion or particular denomination."

The brief was written by the Becket Fund for Religious Liberty and was joined by the American Jewish Congress; Association of Christian Schools International; Baptist Joint Committee for Religious Liberty; Christian and Missionary Alliance; Ethics & Religious Liberty Commission of the Southern Baptist Convention; General Conference of Seventh-day Adventists; Hindu American Foundation; National Association of Evangelicals; National Council of the Churches of Christ in the USA; Queens Federation of Churches; Resident Bishop of the Rocky Mountain Conference of the United Methodist Church; Sikh Coalition; Stated Clerk, Presbyterian Church (U.S.A.); Union of Orthodox Jewish Congregations of America; United States Conference of Catholic Bishops; and Worldwide Church of God.

The parish of Our Lady of Loreto was established by the Catholic Archdiocese of Denver in 1998 to serve the growing church community in the southeastern suburbs of the city. Two pieces of property were purchased: a large, 28 acre lot for the new church, a parish hall, administrative offices and a school; and another, much smaller 2.5 acre property across the street, for a rectory. Monsignor Edward Buelt was designated as the new church's first pastor, and soon moved into a preexisting house on the smaller property. The previous owner had also built a small separate building, which was adapted for use as a chapel while preparations for building a permanent church accross the street continued. An already existing parking lot accommodates from 15 to 20 cars.

A few neighbors living near the rectory have reacted negatively to the presence of Msgr. Buelt and low-key pastoral activities in the chapel, however. At the urging of these neighbors, the Board of Trustees of the Town of Foxfield adopted a bizarre ordinance ("Ordinance No. 3") on March 22, 2001 which makes it unlawful to park more than five motor vehicles for more than fifteen minutes within 1,000 feet of a private residential property on more than two occasions during any thirty day period.

Even more oddly, the Trustees provided that the ordinance would be enforced only upon written complaints from at least three neighbors living nearby.

Later, on November 1, 2001 the Town of Foxfield filed a lawsuit against the Archdiocese of Denver, stating it had received the requisite number of complaints from neighbors, and listing a half dozen dates on which more than five cars were alleged to have been parked at the rectory for more than 15 minutes. The Town asks the Arapahoe County District Court to issue a permanent injunction and a declaratory judgment against the Archdiocese.

On August 1, 2002, the Archdiocese filed a motion for partial summary judgment, arguing that Ordinance No. 3 violates the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), Colorado's "Freedom to Gather for Worship Act," and the U.S. and Colorado constitutions and is thus void and unenforceable.

The Town filed a cross motion for partial summary judgment, and filed a memorandum in support of its motion on September 2, 2002. Among other things, the Town argued that RLUIPA is unconstitutional.

On October 2, the Archdiocese filed a memo in support of its own motion for partial summary judgment, together with a response to the Town's cross motion. It argues, among other things, that Ordinance No. 3 "substantially burdens the religious exercise of the Archdiocese" by unreasonably limiting use of the rectory to "only two gatherings per month." It rejects the Town's contention that RLUIPA is unconstitutional, noting a number of federal court decisions that have found it to be constitutional. It argues that Ordinance No. 3 violates guarantees of freedom of speech found in both the U.S. and Colorado constitutions, and notes that "despite its facial neutrality toward speech, there is substantial evidence that Ordinance No. 3 was enacted in order to burden the speech (and religious and associational) rights of the Archdiocese and Msgr. Buelt.

The October 2 filing also provides details of attempts at harassment and intimidation directed at church members as they have tried to attend gatherings at the rectory. Neighbors have blocked access to the property with their own cars or by personally standing in front of or behind vehicles; berated guests at the rectory using a public adress system on a nearby patio; and most recently, on September 6, as parishioners were coming to the rectory, one neighbor threw an object at a car and began screaming at the occupants. When the driver rolled down his window, the neighbor reached into the car and hit him in the mouth.

The Archdiocese of Denver is represented in the lawsuit by attorneys Charles Goldberg and Eric Hall of the law firm of Rothgerber Johnson & Lyons, whose Religious Institutions Group maintains a special web site called the RJ&L Religious Liberty Archive.

On September 25, 2002, The Becket Fund for Religious Liberty formally joined the case in an "of counsel" capacity, bringing its expertise in the fields of constitutional law and RLUIPA litigation to the effort.

On February 21, 2003 a hearing on cross-motions for Summary Judgement was held before Arapahoe County District Court Judge Hopf. Trial in the case has been postponed pending the court's ruling on the motions. Becket Fund Litigation Director Roman Storzer participated in the hearing along with Rothgerber Johnson & Lyons attorneys Charles Goldberg and Eric Hall. (Town of Foxfield, Colorado v. The Archdiocese of Denver and, in a counterclaim, The Archdiocese of Denver and Msgr. Edward Buelt v. Town of Foxfield, District Court of Arapahoe County, Colorado, Case No. 01CV3299, Division 5)

On July 5, 2005, the Becket Fund, along with a diverse coalition of religious and civil rights organizations, filed an amicus curiae brief with the Colorado Court of Appeals in this case. The brief urges the court to reverse the trial court decision, which rejected the Archiocese's RLUIPA defense to the enforcement of a local parking ordinance on the grounds that the facts of the case did not satisfy the jurisdictional elements of RLUIPA. The brief not only urges reversal on these grounds, but also defends the constitutionality of RLUIPA in the event that the Court of Appeals finds that the law applies.

On August 10, 2006, the Colorado Court of Appeals handed the Archdiocese of Denver a major victory in its fight against parking regulations that targeted religious gatherings at the Rectory of Our Lady of Loreto Parish in Foxfield, Colorado. The Court of Appeals' decision reversed the court below, which had found that the Church's RLUIPA "substantial burden" claim failed because it did not satisfy any of the jurisdictional elements of Section 2(a)(2) of the Act. The decision also found that the parking regulation at issue was not "neutral and generally applicable," and remanded on the question of RLUIPA's constitutionality.

After the case was brought to the Colorado Supreme Court, the Becket Fund wrote a brief defending RLUIPA, which was submitted to the court March 15, 2007. Putting aside in some cases significant differences in ideology or faith, 16 other religious and civil rights organizations signed the brief, which defends the constitutionality of RLUIPA.

The amicus brief can be found at http://www.becketfund.org/files/9da8c.pdf.

Becket Fund for Religious Liberty