The Volokh Conspiracy
[Sasha Volokh, November 29, 2006 at 2:24pm] Trackbacks
Religious organizations have no common purpose:

New development in the Georgetown Apostles case -- the D.C. zoning administrator says the Apostles are a "fraternity," not a "religious organization," because (at least as the WaPo reports) the dictionary says a fraternity is "a group associated for a common purpose, interest or pleasure."

I don't know, that reasoning seems pretty bootylicious to me....

Related Posts (on one page):

  1. Religious organizations have no common purpose:
  2. Tax evasion:
  3. The Georgetown "Apostles":
A Georgetown Student:
The Zoning Administrator refuses to define what a religious group is, yet is confident in pronouncing the Apostles as not a religious group?

Can we say slippery slope?
11.29.2006 2:53pm
A DC resident (mail):
If you believe religion has no place in our society, then you can support the Georgetown students.

In this case, there is little reason to set forth the absolute confines of what a religion is. To extend Justice Stewart's saying, "I know a religion when I see it." No one, including the students, can honestly argue that they chose to live in that house because they are members of a new religion.
11.29.2006 3:07pm
lucia (mail) (www):
A DC resident: I think if the judge had echoed Justice Stewart's saying, I would find the ruling less bootylicious.
11.29.2006 3:10pm
A Georgetown Student:
No place in our society and no place in our zoning codes are two different opinions.

Why religious groups should get an exemption to the six-person-per-house rule, while secular organizations do not, strikes me as without basis. If we're speaking on safety concerns, a common belief in God does not make your household any safer for more than six people than it does for households that do not.

Just imagine the outcry if the law were phrased in the other direction: No more than six unrelated people may live together, unless they are members of a group espousing atheist beliefs.
11.29.2006 3:12pm
A DC resident (mail):
Lucia: Agreed, but you can't expect the DC Zoning Board to have the eloquence of Justice Stewart.

GT Student: If that's the way you feel, why not just argue that rather than propping up the lame argument that the Apostles are a religion?
11.29.2006 3:16pm
Sasha Volokh (mail) (www):
There are two elements to the argument. One element is an argument on the merits against special treatment for religion. Another element is about the rule of law: If a bureaucrat is going to say you're not a religion -- in the face of your arguments that you are -- at least he should articulate some rationale for his decision. Even if your case seems clear, making the official articulate a rationale keeps him honest, now and for the future. At least then we could argue about it.
11.29.2006 3:21pm
A DC resident (mail):
BTW, I took Lucia's use of "bootylicious" to have the first meaning, i.e., weak or bad. But I have never used "bootylicious" in that manner. I thought everyone knew that only the second definition of "bootylicious" is correct. I think the OED is getting loose in its criteria for entry into the vault.
11.29.2006 3:25pm
A Georgetown Student:
Sasha cuts to the point.

DC Resident: First, I am not one of the Apostles, so I have no control over what arguments they use or do not use. I'm simply an interested (and opinionated) observer.

There are three points I see here.

The first is that I think it's improper for zoning regulations to include safety exemptions for groups that espouse a particular belief, whatever that belief. I see no compelling state interest to do so.

The second is that, given that the law is what it is, and given that it does not define what a religious group is, I think it's proper for the Apostles to declare themselves a religion. They are abiding by the letter of the law, although you would clearly argue not the spirit.

The third is that arguments over the 'spirit' of the law involve a slippery slope, as Sasha notes. To refuse to define what a religion is, but then to deny it arbirtarily to one group, is unfair - not just to them, but to everyone. Define your terms, then we can, as Sasha says, argue over them.
11.29.2006 3:27pm
Sasha Volokh (mail) (www):
A DC resident: (1) The commenters on the bootylicious thread did produce Snoop Doggy Dogg lyrics that pretty clear use "bootylicious" in this first, negative sense. (2) The OED does say that this usage (as opposed to the second, positive meaning) is "rare."
11.29.2006 3:31pm
A DC resident (mail):
I agree that there are two points.

My point is that the heart of your argument relates to the first element, but you focus on (and attack the Zoning Board on) the second element (when there is really no legitimate issue about the second element). Even under the broadest definition of "religion," nine Georgetown students in a multimillion dollar townhouse do not make one.

Would like to add more - maybe later - but I have to run.
11.29.2006 3:39pm
A DC resident (mail):
S - I must not listen to Snoop Dogg enough!
11.29.2006 3:41pm
AppSocRes (mail):
The bureaucracy have responded solomonically: They don't define what a religious organization is; a legally challenging task at best. They do decide that a fraternity is not a religious organization and provide a reasonable definition of what a fraternity is. They use that definition of fraternity to establish that the organization in question is, by definition, a fraternity. Therefore, that organization logically cannot be a religious organization. Therefore, the organization is not entitled to the zoning exemption that is exclusively for religious organizations. QED. Reasonable definitions and logic trump a bunch of spoiled rotten rich kids weho thought they could pull a fast one on society.
11.29.2006 3:43pm
lucia (mail) (www):
A DC resident: I did indeed mean "less bootylicious" as "less bad". I think the ruling is bad. However, if the zoning administrator had the courage of his convictions and admitted flat out that he was not going to seek to define religion and just say "I know a not-religious when I see not religious, I would consider that less ridiculous than what he did which was to try to avoid making a definition without admitting that flat out.

I'm not, btw, saying this as a matter of law. I simply prefer it when reasoning is direct and clear rather than bizarre and trick like. (Plus, I think it's really difficult for anyone to get up on their hindlegs and lecture the students for tricks if the zoning administrator tries to use similar trick-like ploys to avoid the issue of "what is a religious" to enforce the ruling.)
11.29.2006 3:44pm
David Chesler (mail) (www):
[T]he dictionary says a fraternity is "a group associated for a common purpose, interest or pleasure."

But it does not say that every group associated for a common purpose, interest or pleasure is a fraternity. Suppose a bunch of nine monks (robed, tonsured, sandaled, the whole deal) move into a house in that zone. Does the fact that they are associated for the common purpose of worship (and in fact they do call each other Brother and their organization a Brotherhood) mean that they are also a fraternity, and therefore not qualified for the religious exemption?
11.29.2006 3:46pm
A Georgetown Student:

AppSocRes: They do decide that a fraternity is not a religious organization and provide a reasonable definition of what a fraternity is. They use that definition of fraternity to establish that the organization in question is, by definition, a fraternity. Therefore, that organization logically cannot be a religious organization. Therefore, the organization is not entitled to the zoning exemption that is exclusively for religious organizations.


Then the Zoning Administrator should apply this test blindly across the board, if that's what you'd like to suggest. So any "group associated for a common purpose, interest or pleasure," -- whatever that common purpose, interest or pleasure, should be classed as a fraternity and therefore banned.

Therefore, a group of 15 people, whose common purpose is to praise God and live by His precepts as they understand it, would be prohibited as well.
11.29.2006 3:50pm
Dave from IL:

AppSocRes: They do decide that a fraternity is not a religious organization and provide a reasonable definition of what a fraternity is


Since they never define a religious organization, they can't simply infer that a fraternity is not a religious organization. They have to explain why a fraternity is not a religious organization. There are plenty of fraternal organizations that most people would also consider religious organizations. The Knights of Columbus for example. Using your reasoning, the Knights of Columbus would also be rejected if they applied for a religious exemption.
11.29.2006 4:28pm
A Georgetown Student:
One other thing strikes me by the zoning commissioner labeling them as a fraternity--

Are fraternal houses zoned differently, regardless of the number of members? Or can any six people, regardless of purpose, live together?

Because it seems the Apostles are hardly a fraternity - their common purpose seems to be 'wanting to live together', which differentiates them from my roommates only in the number of people wanting to live together. So, is every off-campus housing occupied by students, regardless of number, a fraternity? Do we all need to apply for zoning permits?

Like I said -- slippery slope.
11.29.2006 5:08pm
John Burgess (mail) (www):
The Knights of Columbus do not identify themselves as a religious organization:
The Knights of Columbus is a Catholic men's fraternal benefit society that was formed to render financial aid to members and their families. Mutual aid and assistance are offered to sick, disabled and needy members and their families. Social and intellectual fellowship is promoted among members and their families through educational, charitable, religious, social welfare, war relief and public relief works.
(Source)

They are, indeed, a fraternal organization. As such, they would fall afoul of the zoning regulation were they to attempt this maneuver.

Within a three blocks of the Apostles' house (1617 35th St), though, there is a rectory for Holy Trinity Parish at 3513 N St. NW. There's also the Convent of Mercy at 3515 N St. NW, and Visitation Convent at 1500 35th St. NW.

The DC Zoning Commission can look at these religious housing establishment and readily compare them to the Apostles' setup.

And to demonstrate their collegial concern for their neighbors, the Apostles' house now sport half the Christmas decoration lights in the District, strobing all night long.
11.29.2006 5:16pm
DaveN (mail):
The Ninth Circuit has (for once) provided a test the D.C. zoning officials could use:

To merit protection under the free exercise clause of the First Amendment, a religious claim must satisfy two criteria. First, the claimant's proffered belief must be sincerely held; the First Amendment does not extend to ‘so-called religions which ··· are obviously shams and absurdities and whose members are patently devoid of religious sincerity.’ Second, the claim must be rooted in religious belief, not in ‘purely secular’ philosophical concerns. Determining whether a claim is “rooted in religious belief” requires analyzing whether the plaintiff's claim is related to his sincerely held religious belief.

Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (citations omitted).

It seems to me that if prison officials (as in Malik) or the IRS (which deals with sham religions all the time in disallowing charitable deductions) can define religion in an objective fashion, so can D.C. zoning officials.

Under the Malik test, the Apostles could make neither required showing.
11.29.2006 5:42pm
Waldensian (mail):
Malik doesn't get us down the road very far, in my view. To paraphrase, something is religious if it's (a) sincerely religious (i.e. not a sham), and (b) rooted in religious belief (i.e. it isn't purely secular).

My head spins from the circularity. Sure sounds like a Potter Stewart test to me. But I suppose the IRS needs SOME kind of test, I can't imagine any other way to run the railroad.

Perhaps you could argue the other way: a belief system is truly a "religion" if adherents' faith cannot be shaken by facts, evidence, or reason.
11.29.2006 5:59pm
lucia (mail) (www):
John Burgess>The DC Zoning Commission can look at these religious housing establishment and readily compare them to the Apostles' setup

Had Zoning Commission done so and explained the differences in their ruling, I could respect that. It appears they to avoid making a comparison for reasons known only to them.


John Burgess >And to demonstrate their collegial concern for their neighbors, the Apostles' house now sport half the Christmas decoration lights in the District, strobing all night long.


If these violate no ordinance, I predict the apostles will keep their decorations in place even after the excess occupants move. They may keep the strobing lights flashing until doomsday. If they do so, other residents and the zoning commission may learn an important lesson: write ordinances to ban the actual "bad thing" you want to prevent.
11.29.2006 6:00pm
Statist:
DaveN,

Malik v. Brown deals with first amendment rights to worship; IRS deals with the status of tax-exempt groups, and religious groups are exempted from taxes along with educational, scientific, and other charitable groups (so 'purely secular' groups would qualify for exemptions as well).

While you can make a religious order definition that fits the above case, the constitutionality of such law would still be in question. Even if, theoretically, you were able to perfectly define a religious group such that it included all the 'legitimate' groups and kept out the shams, the fact that religious groups are given an exemption at all, and other secular or not-for-profit groups were not, would be discriminatory.
11.29.2006 6:00pm
liberty (mail) (www):
Perhaps you could argue the other way: a belief system is truly a "religion" if adherents' faith cannot be shaken by facts, evidence, or reason.

So most politics is religion then? (at least for lefties!)

: )
11.29.2006 6:12pm
Sasha Volokh (mail) (www):
Let's be nice, Libby.
11.29.2006 6:46pm
American Psikhushka (mail) (www):
Again, I think the negative use of "bootylicious" was an anomalous one - mainly because it rhymed. The usage of "bootylicious" is overwhelmingly positive, usually used by young men that like "the apple" on females.

Don't want to see you frontin' and gettin' all wack, Sasha.
11.29.2006 7:11pm
liberty (mail) (www):
Ay! S-Dawg ain't no wack homey! He gets down with that.
11.29.2006 8:40pm
Is your religion government approved?:
Lovely.

Now zoning board chiefs determine if your religious beliefs are real or not and to what degree.

Is your religion government approved? And here's another question: what business is it of government to decide if my religious beliefs are valid or not?

But I keep forgetting. This is DC municipal government, land of the liberals.

The Branch Davidians and others after the Waco Massacre put it one way: Is Your Church BATF Approved? Answer: Janet Reno (liberal) and a fire that kill many. Now, I guess we have to wonder: Is Your Religious Group DC Zoning Board Approved?

I fear for these people's lives. I really do.
11.29.2006 9:03pm
Mr L:
Is your religion government approved? And here's another question: what business is it of government to decide if my religious beliefs are valid or not?

Can we stop pretending that this is a valid religion? This is admittedly a sham in order to avoid a zoning rule -- not a dubious faith under the bureaucratic microscope -- and the issue is not that they're being denied Constitutional protection, but how (or if) their fake religion can be legally distinguished from a real one. That's settled with the Malik test brought up earlier, since the only hard criterion there is the 'sincerely held' test, which this fails.
11.30.2006 8:55am
Sasha Volokh (mail) (www):
Well, it would be nice to see how the zoning administrator went about determining the students' sincerity. Then we could at least argue about those procedures.
11.30.2006 9:29am
DaveN (mail):
Mr L has it exactly right. When I cited Malik, I knew it was a "free exercise" case. However, I think the D.C. zoning ordinance at issue was also based on the Free Exercise clause--that is, the exemption was put in place to allow members of religious organizations to live together and exercise their religion. Malik provides a fairly straightforward test in my opinion. Since the group has made no pretence of being sincere, then the fact that it is a sham is enough for the D.C. bureaucrats to deny it a religious exemption.
11.30.2006 11:13am
Patrick (mail):
Outside of the legal issues (on which I believe the students have the better of it), if these creeps could have been bothered to act in a civilized way, there would have been no problem. The parents of these kids should be ashamed. The kids should be ashamed. Even for an overprivileged, spoiled brat college student, how hard is it to show some respect and courtesy to their neighbors? Even after this problem and attention, they still cannot be decent neighbors?

The law allows us to do many things, but that does not mean we should.
11.30.2006 11:13am
JoeHoya:
Pat,

I think there's some confusion over how the kids are acting here. From what I've seen and heard, these kids are no louder than any average college house or dorm. What's the difference? They bought a house that was not expected college students would 'buy', becuase the prices are prohibitive (upwards of $2 million, I believe). But the house itself is less than two blocks from campus. If my apartment, which is inside Georgetown, was situated in the same area as the Apostles, I bet we would get written up just as often, but we aren't any noisier.

The neighbors are basically calling police whenever there's *any* noise or parties, period. I'm just amazed at the neighbors - who moves two blocks from a major university with about six thousand students, nearly a thousand of whom live off-campus, and complains when they act like college students?

Don't move next to an airport and complain about the noise, sabe?
11.30.2006 12:10pm
A Georgetown Student:
DaveN,

What I agree that the use of the Malik test is probably the most appropriate - and certainly better than the woefully inadequate 're-definition' that the DC Zoning Administrator has applied, I think what myself, Statist, Liberty and Sasha are trying to say is that, regardless of whether or not you could craft a perfect religious housing exemption, it would still be unconstitutional because it favors religious groups over secular groups, with no overriding government interest in doing so (be it safety or noise).
11.30.2006 12:56pm
Sasha Volokh (mail) (www):
Plus, is it really true that these students have made no pretense of being sincere? That wasn't clear from the article. My impression was that at least they did make such a pretense.
11.30.2006 1:15pm
lucia (mail) (www):
Yep. At a minimum, they make a pretense. At a maximum, they sincerely hold some beliefs and consider them religious.

They file to incorporate as a nonprofit religious organization. Plus, they appear to be practicing the tenets of a religion, which I infer from the name of their church:

The Apostles of Peace and Unity

I would assume the word "Unity" in their church title communicates one of their tenets which is: Many college students should live united. Larger groups are preferred, and so they bought a huge house and are occupying it.

"Peace" tells us the students living in unity should strive to get along with each other. (Of course, they can't help it if those outside their church don't obey it's dictates. They do seem to get along peacefully with those inside their church.)

My guess is they are an evangelical group striving to communicate their two tenets of peace and unity to any and all open to their message.

This probably requires inviting others to the religious gatherings where the major tenets of their religion are communicated. No doubt, the groups shares bread and wine (read in it's broadest sense to include beer, chips and dip.) Ritual music is played (often amplified.)

Those gathered are invited to give witness to their faith (possibly at the top of their lungs.)

Unfortunately, this consumption of bread, wine, playing of music and audible "giving witness" is loud and it turns out the neighbors don't like it anymore than I like the constant din of churchbells on Sunday morning. But, what is to be done? That's religious freedom for you.

In anycase, I'm suspect this is all done quite sincerely!
11.30.2006 3:10pm
markm (mail):
"Perhaps you could argue the other way: a belief system is truly a "religion" if adherents' faith cannot be shaken by facts, evidence, or reason."

By that definition, Communism is a religion. That sounds right to me - it would take a bigger miracle than any of Jesus's to make Marxism work...

So why waive a "safety" regulation for a religious community?

1) Social Darwinism: If neither their God nor the steadfast practice of their religion will save them, we're better off without them. (I'm joking here, but I suspect that in fact a monastery would be far less likely to suffer from disease due to overcrowding or to set the house on fire than the same number of college students in the same house - not because the monks worship God, but because they keep the place clean and live modestly and sanely.)

2) The regulation isn't really about safety, but is a tactic to create an artificial scarcity of housing and thereby keep property values up. (This is what I really think, cynic that I am. After all, I have seen poor families of more than six crowded into much smaller and dingier rental houses, and no one worried about that as long as it wasn't in a rich neighborhood.)

So, if the regulation was created under a pretense of safety, why can't people use a pretense of religion to get around it.
11.30.2006 4:22pm
David Chesler (mail) (www):
Do Malik and the others tests suggested require that a believer have only one religious affiliation at a time? Some government pigeonholing does. There are certainly genuine, sincere examples where this is not true, such as Shintu plus Buddhist, or folks who are into New Age spirituality but remain affiliated with the Abrahamic religion of their birth family. Universal Life Church is at the limit of genuine and sincere, but it doesn't require renunciation of other faiths.
Suppose folks wish to set up something along the lines of an ashram, open to members of all faiths who wish to live there for a while and experience tranquility -- all bona fide. Would it qualify for the religious exemption?
11.30.2006 4:40pm

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