Cries of reli­gious per­se­cu­tion rose in the Ari­zona desert after Phoenix pas­tor Michael Salman began serv­ing a 60 day jail sen­tence on July 9 and faces a $12,000 fine after refus­ing to stop hold­ing a Bible study at his home. But like any news story, it is impor­tant to get past the head­lines mak­ing their way across  the media and blo­gos­phere and take a look at the facts.

The Bible study, known as the Har­vest Chris­t­ian Fel­low­ship Com­mu­nity Church, is actu­ally held in a build­ing, con­structed in 2008, that seats 100 peo­ple   in what used to be the back­yard of the Salman home. In fact, accord­ing to the city of Phoenix which has posted a fact sheet on the case, up to 80 peo­ple have gath­ered reg­u­larly twice a week in a build­ing that looks a lot more like a church than the garage that Salman said he was build­ing back in 2008.

In 2008, after a bat­tle between the city and Salman, the city ulti­mately issued a Build­ing Per­mit to con­struct a 2,000 square foot pri­vate game room and the per­mit stated that “Any other occu­pancy or use (busi­ness, com­mer­cial, assem­bly, church, etc.) is expressly prohibited….”

Salman says that his church is pri­vate and on his own prop­erty and he could hold any events there that he wants. He says the city is per­se­cut­ing him because he wants to hold Chris­t­ian ser­vices. The city claims that the issue is sim­ply the fact that the build­ing does not meet many con­struc­tion, zon­ing, and fire code require­ments that any church of that size would need to meet.

The Salman fam­ily has posted a 17 minute video show­ing a tour of the prop­erty and mak­ing their argu­ment that the church is pri­vate and that his con­gre­ga­tion is being per­se­cuted because of their reli­gious beliefs.

Fol­low­ing the release of the story, the Chris­t­ian blo­gos­phere has erupted with all kinds of peo­ple call­ing for his release claim­ing that he is being per­se­cuted and that no church is safe. On BeliefNet, one blog­ger even ties Pres­i­dent Obama into what is essen­tially a local issue in what is arguably the most con­ser­v­a­tive state in the Union. “Just remem­ber, today it is Pas­tor Salman, tomor­row it could be your Pas­tor, and this could be you the next day! The hos­til­ity towards Chris­tians is mount­ing daily and it’s mount­ing expo­nen­tially! The longer Obama and his crew of sodomites and Christian-haters are in power, the more evil and bolder they are becom­ing! If we Chris­tians don’t take action now, tomor­row it will be too late.”

Is this approach telling the truth or sim­ply fan­ning the flames of an imag­i­nary inci­dent of per­se­cu­tion in order to make a larger point in order to estab­lish as sense that Chris­tians in Amer­ica are vic­tims of per­se­cu­tion? We closely track claims of reli­gious per­se­cu­tion and cloud­ing the con­cept with cases like this makes it harder to address the real cases when they do arise, although those case usu­ally do not end up with pas­tors fac­ing jail time.

In this case, Salman built a struc­ture that he said was not a church but it was in fact a church and repeat­edly vio­lated ignored requests for com­pli­ance with zon­ing require­ments and applic­a­ble laws. This tac­tic was less than hon­est and unfor­tu­nately has led to the incar­cer­a­tion of a man who oth­er­wise appears to be a sin­cere preacher. But when it comes to zon­ing and safety rules there are legit­i­mate rea­sons why they exist, and the fact that he is presently in jail has more to do with those neu­tral rules than per­se­cu­tion regard­ing his reli­gious viewpoints.

Through­out the United States, there are many cases where reli­gious groups have been wrong­fully denied zon­ing per­mits for houses of wor­ship or spe­cific uses even where they have fol­lowed the rules to the let­ter. In fact, a Seventh-day Adven­tist Church in Vacav­ille, Cal­i­for­nia fought a legal bat­tle for ten years to have a low power radio sta­tion.

More recently, a Mus­lim group wanted to build a house of wor­ship in New York City near the for­mer site of the World Trade Cen­ter. Many Chris­t­ian groups openly ral­lied against the project sim­ply because it would be a Mus­lim structure.

In Feb­ru­ary 2011, Rock­dale County, Geor­gia refused a small church access to sev­eral prop­er­ties for its wor­ship ser­vice because the prop­er­ties are less than three acres. That restric­tion does not apply to non-religious groups.

Reli­gious zon­ing cases are gov­erned by a Fed­eral law enti­tled the Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (RLUIPA) that pro­vides as follows:

Gen­eral rule. No gov­ern­ment shall impose or imple­ment a land use reg­u­la­tion in a man­ner that imposes a sub­stan­tial bur­den on the reli­gious exer­cise of a per­son, includ­ing a reli­gious assem­bly or insti­tu­tion, unless the gov­ern­ment can demon­strate that impo­si­tion of the bur­den on that per­son, assem­bly or institution

1.  is in fur­ther­ance of a com­pelling gov­ern­men­tal inter­est; and

2.  is the least restric­tive means of fur­ther­ing that com­pelling gov­ern­men­tal interest.

In this case, the city of Phoenix would argue that they have a com­pelling inter­est to pro­vide for the safety of a struc­ture as they would for any other church build­ing, that Salman could have eas­ily found other ways to exer­cise his reli­gious beliefs since they weren’t tied to a par­tic­u­lar build­ing, and that requir­ing at min­i­mum that the intended use of a prop­erty be hon­estly iden­ti­fied in an appli­ca­tion for a per­mit. Salman could argue that his right to build a church is above the law, and that he had to mis­rep­re­sent his intent since the city would have denied the per­mit if they knew that it would be used as a church rather than a “game room.” A decep­tive approach is very rarely viewed favor­ably by juries and judges.

Salman has approached the law in unusual ways before. Accord­ing to an arti­cle that appeared in the Phoenix New Times in 2008 Salman filed paper­work in 1994 that he belonged to the Embassy of God and was exempt from United States law. In this case, the law is still the law.

Salman has retained coun­sel from the Ruther­ford Insti­tute who plans on advanc­ing the case to Fed­eral Court on the RLUIPA issue and assert the rights to assem­ble, free speech, and free exer­cise of reli­gion. But the core issue will be whether reli­gious groups should be given vari­ance from content-neutral local zon­ing and safety reg­u­la­tions sim­ply because they are reli­gious, and more specif­i­cally, the extent to which indi­vid­u­als can ignore neu­tral laws in the name of reli­gious freedom.

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