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When Churches Seek to Host Tent Cities of Homeless Persons, Can Localities Deny a Permit?
The Controversy in Washington State, and What State Legislators Should Do About It


Thursday, Mar. 08, 2007

Redmond, Washington is the latest city to become the campsite for a tent city (known as Tent City 4) of about 65 homeless individuals. The city, which has been traveling around the state of Washington over the past three years, now is situated on the grounds of St. Jude Catholic Church in Redmond. Typically, the tent city has stayed in a given resting place, usually church grounds, for 90 days as it argued for the right to ignore normal permitting requirements. It is the epitome of itinerant use.

Organizers SHARE/WHEEL defend tent cities as a necessary part of their religious mission. However, this itinerant use has been a source of concern for residential neighbors in virtually every city Tent City 4 has inhabited. Its presence typically has led to litigation.

But that litigation doesn't happen on a level playing field. Instead, as I will explain, a federal statute, the Religious Land Use and Institutionalized Persons Act, ensures that in such litigation, the valid interests of neighborhood residents are given short shrift.

The Most Recent Litigation over Tent City 4

Originally, Tent City 4 was situated at the Northshore United Church of Christ in Woodinville. A lower court ruled that it had to vacate the premises.

However, the effect of two June 2006 decisions by a Washington State Court of Appeals Commissionerwas to allowTent City 4 to stay put pending appeal.

Eventually, the homeless group moved to Redmond - where the controversy repeated itself. Redmond issued a permit. But the permit was overruled by a city hearing examiner, who ruled that SHARE/WHEEL had not properly brought the permit request before the City Council, as was required.

Three requests for reconsideration of the permit decision have been filed by Redmond residents. A hearing is likely to be held mid-March. In the meantime, the tent city apparently will stay put.

A Local Pastor Unpersuasively Defends the "Sanctuary" of the Churches for Tent Cities

In a 2006 publication, the Rev. Dr. Sanford Brown argued that the tent cities were part of a tradition of "religious sanctuary." "[M]any worship centers are called 'sanctuary' because of the understanding that a church, synagogue, temple, or mosque is holy ground," he wrote. "As holy ground, God's protections apply and all human rules stand in judgment." In other words, apparently it is his view that the use of church grounds to host a tent city should not be accountable to generally-applicable laws. Rather, in his view, the church is a lawless zone within the community when the concept of "sanctuary" is invoked.

It is deeply ironic that Brown would invoke the principle of "sanctuary" -- historically a right exercised by the Roman Catholic Church centuries ago, when it was co-sovereign with the kings of England. "Sanctuary" literally meant that the church could protect those within its boundaries against the force of the King's laws. There were two distinct legal regimes: the church's and the state's.

Of course, in the United States, there is a single legal regime, established by our Constitution. While it guarantees the free exercise of religion, it simultaneously forbids the church/state arrangement Brown would invoke. Churches do not have an independent legal system that permits them to avoid the legal rules that apply to all others similarly-situated. Thus, Brown's concept of "sanctuary" is no longer applicable; it is an archaism and should be recognized as such.

What is most remarkable about the discord in Washington over the tent cities is the tunnel vision exhibited by those like Rev. Brown. For the churches, this is a simple issue with only one legitimate side: their own. For them, religious "mission" always trumps earthly concerns such as those legitimately raised by residential neighbors.

Thus, Reverend Brown says, "I'm glad to live in a country where religious groups are free to minister to the homeless - even while some in the community try every legal means to stop them." What he fails to realize, however, is that citizens do not pursue "every legal means" unless they are deeply upset. From his perspective, since such concerns - including a concern for children's safety -- are secular, they take an automatic backseat to the loftier concerns of the churches.

The Leverage RLUIPA Unfairly Provides to the Church

Tent city use is decidedly at odds with the use requirements in the typical residential district. Itinerancy is normally discouraged in residential neighborhoods, because it undermines community bonds, and contributes to a general decline in conditions; persons within the neighborhood have less incentive to maintain and care for it if they are simply passing through, and have no stake.

Accordingly, in residential districts, transitional "group homes" tend to be discouraged. Yet the Washington cities that are forced to play unwilling hosts to tent cities are, in effect, having to deal with group homes of dozens of transients in individual housing. Moreover, these are homes that require the residents to leave their residences (tents) on a regular basis - for example, to eat or to go to the bathroom.

Unsurprisingly, the lawyers for the tent cities have invoked the Religious Land Use and Institutionalized Persons Act (RLUIPA) in order to protect their clients' claimed rights to host the homeless group. As I've discussed in prior columns such as this one, RLUIPA unfairly slants the playing field in favor of religious land users, including by allowing attorneys' fees to those who prevail in defending even unreasonable "religious" uses of land. No wonder then, that - knowing a court fight won't be a fair one -- local governments have often caved in the face of the RLUIPA threat, which includes attorneys' fees as well as litigation costs.

With respect to the homeless, it must be said, even though the churches have tried to make such statements taboo, that - as a factual matter -- many have emotional, alcohol, or drug problems, or criminal records. Neighbors with children thus have good reason to be concerned about the backgrounds of those living in the tents that now reside next door to them.

In other circumstances, the citizens of Washington are more solicitous of children's safety. Washington State's Megan's Law requires that sex offenders register within 24 hours every time they move to a new county, and provide 14 days' notice that they will move before they actually do. They must also give written notice with 72 hours if they move within a county. The reason for the requirements is so that each county's sheriff is kept up to date. How likely is it, realistically, that those residents of the tent cities (if any) who are offenders are complying with this law each time the tent city moves? Statements by those running the tent cities should make all of Washington's citizens wonder about this.

Bothell, Washington reasonably tried to impose a requirement on the tent city that it present verifiable proof of warrant or sex-offender-status checks to the city. Yet, a King County Superior Court ruled that the city could not require such checks, though some land use conditions could be imposed by the city. Tent City 4's camp adviser, Bruce Thomas, said at the time that requiring such checks was a violation of the homeless's privacy interests. But that's absurd: Criminal records are public information.

It is not an exaggeration to say that Brown's and Thomas's views are outrageous. It is bad enough that churches, like the Roman Catholic Church and others, have put children's interests second as they have covered up the sexual crimes of their clergy. It is quite remarkable that, once again, they are so willing to put the needs of children to be safe from sex offenders, drug users, and who knows who else, far behind the churches' unilateral decision to minister to the homeless on their own terms.

Proposed Legislation

Apparently, the tent cities and their hosting churches grew tired of the local governments' and residents' concerns about their presence, for they have pressed for a state statute that would prohibit counties, cities, and towns from regulating religious organizations that host tent cities. The Washington State bill, HB2244, would prohibit local governments from imposing permit fees for violation of their zoning laws that exceed $500; require responses to tent city permit requests within 60 days; force local governments to accept the camp for no less than 90 days; and only permit fines in circumstances where the tent city has "clearly endangered the health or safety of the community."

The testimony in favor of HB2244 was summarized by legislative staff as making the following two points: (1) "Many religious groups feel that it is a religious duty to care for the poor," and (2) "The actions of cities are based on irrational fears of homeless people." This testimony was provided by a number of religious groups and representatives of the tent cities.

There only two entities present that expressed concern about the bill: the Association of Washington Cities, and a solitary brave individual, Fred Jensen. This legislative history is evidence of a political failure that has been endemic to religious liberty legislation since at least 1993, when RLUIPA's predecessor, the Religious Freedom Restoration Act (RFRA), was enacted by Congress. Fourteen years later, the legitimate needs of residential private property owners have yet to be part of the discourse.

Both RFRA and RLUIPA were passed without congressional consideration of the impact of such laws on residential homeowners. As I explain and document in my recent book God vs. the Gavel: Religion and the Rule of Law, when religion enters the legislative picture, too often it crowds out public policy concerns that are crucial if the greater good is to be served.

The Legitimate Interests of Residential Homeowners

In the United States, private property homeowners have a right to pursue zoning regulations that will ensure neighborhoods that are stable, safe for their children, and capable of quiet enjoyment. Having a tent city of itinerants next door is antithetical to these goals - and, unsurprisingly, to the zoning regulations in the localities where the tent cities have resided. Thus, these cases should be open-and-shut.

Unfortunately, it is very difficult in the United States to stop religious interests once legislators begin to push for legislation on their behalf. Thus, Washington's state legislators, before they rush to be the savior for the tent cities, need to take a step back and look at three crucial problems with HB2244 and the current situation.

First, at a minimum, a homeless tent city should be required to provide verifiable evidence that its inhabitants have undergone warrant and sex offender checks. This simply requires a search of public records. It is not irrational to be concerned about the itinerant neighbor, and certainly not about the itinerant neighbor who is homeless. Until such evidence is available to the city, no city should have to permit such an encampment.

Second, the Washington State bill is extraordinarily one-sided - and that should be remedied. Legislators need to seek out the neighbors in the numerous communities where the tent cities have resided, in order to find out what aspect of these encampments has been most problematic, and how it can be addressed. Acting like the "see no evil, hear no evil" monkeys is not going to serve their constituents' needs.

Third, the bill offers no due process for the residential neighbors directly affected by such encampments. Their interests should not be swept aside simply because the cause of their concern is hosted by a religious organization. They are property owners deeply and legitimately interested in protecting their families, after all -- not idle complainers without a stake in the matter. The bill, as currently drafted, would require a rushed permit procedure, and guarantees no due process for the most deeply affected in these communities.

This scenario is just one more instance of local government grappling with the conflicts created by aggressive religious organizations that reduce their concerns to mere "irrationality." It is up to Washington State's elected representatives to introduce balance and more thoughtful deliberation into the process. And if they do not, it is up to those residential homeowners who are being so seriously shortchanged to make their views known at the polls.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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