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Marci A. Hamilton

Sen. Ted Kennedy's Legacy of Disdain for the Separation of Church and State


Thursday, September 3, 2009

There was one message that dominated the remembrances of the late Sen. Ted Kennedy following his death: He was a very successful dealmaker. It was always good to have Ted on your side – regardless of the obstacles. Unfortunately, one obstacle Kennedy often ignored was the Constitution's mandate of a meaningful separation of church and state.

Land for Catholic University

In a previous column, I detailed Kennedy's legal maneuvers to transfer land from the financially-ailing Old Soldiers Home in Washington, DC, to its neighbor, Catholic University, for below-market value. After veterans contacted me, I held a press conference with them to announce our intent to file a declaratory judgment action (that is, an action seeking a court determination that the Constitution had been violated) challenging the law.

The law was amended, though Kennedy did not permit the sale of the land to be governed completely by fair market principles, as Catholic University was given a right of first refusal on any bid.

A Steeple for the Belmont, Massachusetts Mormon Temple

Sen. Orrin Hatch's eulogy was a reminder that Sen. Kennedy was ever vigilant to serve the interests of religious groups – without regard for the Establishment Clause. Hatch stated:

There was another time when the Mormon church was, ah, nearing completion of its temple in Boston. Belmont. I think. I was approached by several people working in the temple and, ah, was informed that the city would not allow a spire to be placed on the top of the temple with an Angel on top of it as is customary on Mormon temples. I immediately called Ted and asked for help. Not long after that conversation, he called me back and said quote 'all of western Massachusetts will see the angel Gabriel on the top of the Mormon temple.'

This statement came as a surprise to the residential neighbors of the temple.

In 1996, the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints filed its original application with the Town of Belmont, Massachusetts, Zoning Board of Appeals (ZBA), seeking a special use permit to construct a temple of 94,100 square feet with six spires in a residential neighborhood. The temple was intended to serve New England and southern Canada. In the Mormon faith, temples are restricted to believers alone, and they serve as the location for weddings, funerals, and other religious ceremonies.

The proposed structure would have been 59 feet high, with its steeples ranging from 92 to 156 feet. The neighborhood was zoned for single, detached residences with a 60-foot height limit for structures and a 71.2-foot height limit for an "uninhabited projection" such as a chimney or steeple.

An LDS meetinghouse had been present in the neighborhood for years, and had not drawn any objections from the neighbors – showing that neighbors' complaints about the proposed temple, which were soon forthcoming, did not arise from any anti-LDS bias. Rather, as they repeatedly stated, they were opposed to the sheer scale of the massive proposal.

In Massachusetts, a law referred to as the "Dover Amendment" permits churches and schools to avoid zoning restrictions. It is based on the presumption that these are inherently beneficial uses, whose values transcend the zoning regulations every other landowner or developer must follow. The law was passed at a time when churches were more like quiet parks than the busy social service centers many have become today.

Belmont's ZBA, applying the town's zoning laws in light of the Dover Amendment, granted the original application with conditions, including a restriction on the spires, limiting them to a height of 139 feet. The LDS then filed an amended application, reducing the temple's square footage to 68,000 square feet and its highest spire to 139 feet.

The neighbors (a number of whom are professors at nearby MIT) were concerned that a structure of this size and impact would irreversibly change the character of their previously quiet residential neighborhood, and filed proposed conditions on the application. However, the ZBA approved the amended application without imposing many of the conditions requested by the neighbors. As a result, the neighbors brought suit in state court challenging, in particular, the steeple height.

The neighbors won on the first round. After that, the LDS initially appealed to the state appeals court, but then petitioned for direct review to the Massachusetts Supreme Judicial Court (SJC), Massachusetts' highest court. Review was granted.

Building commenced despite the litigation and in August 2000, before the temple was officially opened, which would mean that only those Mormons with "temple-recommends" from a bishop would be permitted, there was an open house for the public. That open house was attended by, among others, Sen. Kennedy, who was personally escorted by Mitt Romney (a bishop and local meetinghouse member).

On May 16, 2001, the SJC reversed the trial court and ruled in favor of the temple and its 139-foot steeple. On the opinion in the temple's favor were Chief Justice Marshall and

The neighbors then filed a constitutional challenge to the Dover Amendment in federal court, which was not successful.

The question the neighbors would like answered now is, What exactly did Sen. Kennedy do to obtain the steeple for the temple? Following his remark, the local Belmont newspaper posted a story that poses precisely that question. The time frame suggested in Hatch's reference would have Kennedy making a difference in the outcome of the conflict over the temple while the case was pending at the Massachusetts Supreme Judicial Court. If so, that is very disturbing indeed.

Also troubling is both Hatch's and Kennedy's utter disregard for community self-determination and the law. Hatch obviously believed that his story about Kennedy showed Kennedy to be a good man and that aiding a church – regardless of the impact on the surrounding community or the rest of the state -- was obviously a good deed.

Hatch and Kennedy and Religious Land Use

This episode also shines an unflattering spotlight on the federal laws that Hatch and Kennedy sponsored to help religious entities avoid the application of neutral, generally-applicable laws, like the Religious Freedom Restoration Act (RFRA) and, in 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA). The latter provides for churches across the country what the Dover Amendment prescribes in Massachusetts alone: a special privilege to avoid obeying land use laws, based solely on the religious identity of the applicant.

Kennedy's boast that all of Western Massachusetts, and not just the neighborhood of Belmont, would have to view the angel atop the temple steeple illuminates his disdain for land use law, neighborhoods, his own constituents, and, sadly, the constitutional principle that would have Senators respect the rule of law and avoid religious favoritism.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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