Is it Really Persecution? Phoenix Enforcement of Safety and Zoning Ordinances

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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