Justice Dept. Takes Up a Little Church's Zoning Fight

PUKALANI, Hawaii, July 4, 2004 — On the lower slope of the Haleakala volcano here on the island of Maui, in red-dirt agricultural land famed for its sweet onions, worshipers hold church services in a low-slung concrete-block, metal-roofed building meant for storing farm equipment.

The church, which is Christian, nondenominational and called Hale O Kaula, would like to build a proper sanctuary, but the Maui Planning Commission, citing traffic and safety concerns, has turned it down. In response, the church has sued.

Ordinarily, a local zoning dispute would hardly seem likely to attract the attention of the authorities in Washington. But the Justice Department's civil rights division has weighed in, accusing Maui County of religious discrimination and threatening a lawsuit of its own that would be the first brought by the government under a 2000 law that was intended in part to give churches a leg up in many zoning battles.

Maui officials, sounding slightly stunned at what they see as a betrayal of the Bush administration's usual deference to local governments, say they are in no mood to capitulate, and support for them here is not scarce. "It's hard to avoid the conclusion that Maui County is being strong-armed from the nation's capital," The Maui News said in a recent editorial. "The case is a local-rights fight worth fighting."

The county's defense against the church's suit may turn into a significant test of the 2000 statute, which among other things prohibits zoning regulations that impose a substantial burden on churches unless the local government can show a compelling reason for them.

The constitutionality of the law is much disputed. An earlier, broader version of it was struck down by the Supreme Court in 1997, in part on federalism grounds. And on June 24, a federal judge in Los Angeles issued the first decision holding the newer law's provisions on zoning unconstitutional. The judge, Stephen V. Wilson, said that in adopting the legislation, Congress had granted expanded First Amendment protection to churches, and so exceeded its constitutional authority.

Here in Hawaii, the Justice Department intervened last year in the Hale O Kaula Church's suit, filed in Federal District Court in Honolulu. That move was routine: the department defended the constitutionality of the 2000 law, acting as it typically does when a federal statute is under attack in the courts.

Far more unusual was a letter in May from the civil rights division to Maui County, correspondence that raised the ante here considerably.

The letter said the department had completed an investigation and had prepared a draft of its own potential suit charging religious discrimination. It invited the county to start negotiations toward a broad court-supervised agreement granting the church a right to build its sanctuary.

Madelyn S. D'Enbeau, a deputy corporation counsel for the county, described her reaction to the letter in an interview in her office overlooking the spectacularly unspoiled Iao Valley. "I was tempted to start my letter in response," she recalled, "by saying, 'Greetings from the sovereign state of Hawaii.' "

Jorge Martinez, a Justice Department spokesman, declined to discuss the potential lawsuit here but acknowledged the department's active interest in opposing local zoning decisions deemed to restrict religious liberty.

"The Justice Department's civil rights division has sent letters of investigation to 12 municipalities, in cases involving an Orthodox Jewish synagogue, a Buddhist monastery, a Muslim school and churches of various Christian denominations," Mr. Martinez said. "Many of these cases involve situations in which jurisdictions have multiple-acre zoning requirements for churches but not for comparable secular places of assembly, or have similar discriminatory policies and practices. Other cases have involved alleged discriminatory animus against particular faiths, or to churches whose members were predominantly of a particular race."

Marci A. Hamilton, a professor at Cardozo Law School who argued before the Supreme Court against the similar earlier law that the justices struck down, said this latest move by the government was an extraordinary instance of federal intrusion into local decision-making.

"That's very activist," Professor Hamilton said of the letter to the county. "The Ashcroft Justice Department is just dramatically pro-religion. I assessed the Clinton administration as the most religious administration since Grant, and now the Bush administration is outstripping Clinton."

Maui County says its decision involving the church was a matter of routinely applying land-use regulations governing an area zoned for agriculture. The elders of Hale O Kaula, which means House of Prophets, see this as an oddity, for their beliefs are bound up in agricultural and outdoor activities.

"We believe we're stewards of the earth," said David Jenkins, the church's lanky, easygoing pastor, adding that the congregation considered it important to make the land fruitful, "grow organic vegetables, get out there and work with the kids."

The decades-old church has about 60 members, including some 20 children. Its plans for a new sanctuary, on the site of the concrete-block building where the worshipers now gather, are resisted by Maui on the grounds that they would increase traffic and noise and would burden the county's ability to deliver water as well as fire-prevention and police services.

"The upcountry rural lifestyle is jealously guarded and very precious to the people who live there," said Ms. D'Enbeau, the deputy corporation counsel.

In court papers and interviews, church officials said that what was really driving the county was their neighbors' opposition, which, they said, stemmed from religious animus.

"They're saying we're a commune," Mr. Jenkins said. "They were calling us a militant cult."

Mr. Jenkins said there was no truth to any of that. "We're not fringe," he said.

Frank Caravalho Jr. lives up the road from the church, in one of a handful of houses adjacent to acres of farmland, and is among its main adversaries. He denies that he is motivated by bias.

"I myself am a born-again Christian," Mr. Caravalho said. "I'm not opposed to churches. The setting here is not right. This is a private subdivision on a private road. Churches by their very nature are public entities. Why do you want to put a church all the way at the bottom of a private drive?"

The church's lawsuit is one of scores around the country brought under the 2000 law. Douglas Laycock, a University of Texas law professor who argued in favor of the earlier law in the Supreme Court, said the new one was sufficiently narrow, and important.

"There is a lot of discretion and discriminatory decisions" when local zoning boards rule on applications from houses of worship, Professor Laycock said, "and a significant fraction of churches have a hard time finding places to worship, particularly non-Christian."

Charles H. Hurd, a Honolulu lawyer who is teaming with the Washington-based Becket Fund for Religious Liberty in representing the church, said the county's posture had surprised him.

"They responded like samurai warriors," he said. "There is a point of view in Maui that `we're going to do it our way.' "