I recently wrote an article about the “YIGBY” (“Yes in God’s Backyard”) movement, which seeks to empower churches and other religious organizations to build housing on their properties that would otherwise be prohibited by zoning restrictions. Patrick Reidy, a law professor at the University of Notre Dame (and a Catholic priest), recently wrote in ” Yale Law Journal Believes that YIGBYism is required by the constitution and statutory law that protects religious freedom. Here is the summary:
In recent years, religious groups across the United States have begun building affordable housing on church properties, inspired by sincere religious beliefs. Some people build tiny homes behind chapels. Others are converting homes once used by religious priests — from rectories to monasteries to monasteries — into homes for the elderly and low-income families. Others are repurposing their vacant schools, church parking lots and undeveloped land to build denser multifamily buildings, from townhouses to apartment complexes. In housing advocacy circles and faith communities, these continent-wide efforts to create affordable housing on church properties have embodied an affirmative statement: “Yes, in God’s backyard.”
The affordable housing crisis has been extensively documented by legal scholarship and the popular media. In particular, scholars and commentators have highlighted the harmful role of exclusionary zoning in stifling housing production, ultimately causing regional housing prices to skyrocket. When faith groups build affordable housing on church property, much of it in residential neighborhoods, they are looking for more than just fair market value. Some might call it “charity” (tzedakah) or “discipleship,” the commitment to “welcome the stranger” or “love your neighbor as yourself.”
Faith groups seek theologically and ethically sound uses of their underutilized properties but often struggle to overcome regulatory and financial barriers to adaptive reuse. Local government can incentivize regeneration to benefit the wider community and increase the supply of affordable housing. But their mutual benefit does not exempt faith groups from the challenges they face when they choose to redevelop church properties for affordable housing. Neighbors may seek to prevent faith communities from introducing denser multifamily structures in their backyards by relying on land-use restrictions designed to prohibit less expensive forms of housing. When they succeed, challenges from NIMBY (“Not In My Backyard”) neighbors can limit housing supply and religious freedom.
This special topic therefore proposes a novel response to exclusionary zoning: religious freedom. If sincere religious beliefs motivate faith communities in their efforts to create affordable housing, these communities can assert constitutional and statutory free exercise protections against land use decisions that impede denser, less expensive multifamily development on church lands. This feature also explores city and state legislative changes to lower barriers to faith communities’ efforts to overcome regulatory and financial barriers to adaptive reuse, and leverages public resources and a novel data set to demonstrate the potential for affordable housing on church properties. Maps land owned by the Roman Catholic Diocese of Chicago, Illinois, and Oakland, California, in various municipal areas.
Regardless of how a faith community owns property within its limits, or why a faith community seeks to repurpose property within its limits, most local governments require property within their limits to build affordable housing. Faith communities are willing partners in their efforts.
I am not an expert on relevant religious freedom issues. But his arguments struck me as compelling and persuasive.
But it’s worth noting that its scope is limited. Reedy does not believe religious organizations have a constitutional or statutory right to religious freedom to build whatever housing they want. Rather, they can only do so if the owner of the religious property concerned considers it a religious obligation (usually an obligation to provide assistance to the poor and needy). Therefore, they cannot use this argument to build new luxury apartments to generate additional revenue for the church. This is true even though economists and land-use scholars rightly point out that building new housing for the rich can also help the poor by reducing competition for existing housing and promoting economic growth. Even if there is a legitimate religious freedom justification for an exemption, it may be overridden by compelling national interests.
In my previous article, I pointed out some other limitations of YIGBYism. This is a valuable step in the right direction, but it is not a substitute for comprehensive NIMBY reform. Ideally, we should abolish exclusionary zoning across the board and let religious and secular property owners build whatever housing they want, subject only to narrowly defined health and safety restrictions. in the upcoming one Texas Law Review Josh Braver and I explain how this can be accomplished by strengthening judicial enforcement of the Fifth Amendment’s takings clause.
But Reddy’s religious freedom defense of YIGBY is an important contribution to legal scholarship, and his arguments may ultimately influence the courts’ decisions on these issues. It seems likely that at least some religious groups will make such arguments in the short to medium term to challenge zoning restrictions.
If YIGBYism continues to spread and become a significant focus of religious freedom litigation, it may also help change the political value of religious freedom exemptions to generally applicable laws. When federal and state governments enacted the Religious Freedom Restoration Act and other related laws in the 1990s, they received broad bipartisan support, perhaps more from the left than from the right. In fact, these laws were a response to a 1990 Supreme Court ruling Employment Department v. Smith, The book was written by conservative Justice Antonin Scalia. Liberal leaders Harry Blackmun, William Brennan, and Thurgood Marshall opposed it.
The magnitude of the problem has changed as stereotypical religious freedom advocates have shifted away from members of minority faiths seeking to use illegal drugs in religious ceremonies, such as Native American plaintiffs. Smithwho want to use pejotes), against socially conservative Christians who oppose contraception or refuse to “bake cakes” or provide other services for same-sex weddings.
But we now have a new generation of leftist religious liberty immunity arguments. Eagleby is an example. The same goes for religious organizations that help undocumented immigrants regardless of federal and state laws, as well as people who claim they have a religious obligation to provide abortions, at least in some cases. As these types of claims become more common and more prominent, perhaps the ideological value of religious liberty exemption arguments will change again.
I’m one of the few who supports religious freedom exemptions on both the left and the right – despite being an atheist myself! But it’s easy for me to say that because I’m also a libertarian who supports strong property rights, open borders for immigration, abortion rights, and the right of business owners to refuse service for a variety of reasons (including my disapproval for moral reasons, just as is the case with opposition to contraception and same-sex marriage). In fact, I think all of these activities should be legal for people who engage in them for purely secular reasons as well as religious reasons. I might make a very small exception for businesses that have monopolies on important services, such as utilities.
Those with traditional left or right views face a more difficult trade-off here. But in considering these issues, they should realize that religious freedom claims cut both ways and are not limited to one side of the political spectrum.
