Faith building
Residents in Belmont want to block a $27 million Mormon temple from being
constructed. Their case could affect every church and school in the state.
by Jason Gay
In the spring of 1995, Gordon Hinckley, the octogenarian president of
the Church of Jesus Christ of Latter-Day Saints, paid a visit to a wooded
hilltop in the Boston suburb of Belmont. For some time, the Latter-Day Saints,
better known as the Mormons, had wanted to construct a large regional temple in
the northeastern United States, and Hinckley -- a genial, balding leader who is
considered a prophet among Mormons -- wanted to see whether a temple could be
built in Belmont, near the site where the church had built a meetinghouse a
decade before.
Hinckley carefully surveyed the nine-acre hilltop property, which overlooks
the Boston skyline to the east and Route 2 to the north. He then returned to
church headquarters in Salt Lake City, Utah. Several months later, via
satellite, Hinckley issued an edict: the Mormons would build a temple in
Belmont, on the very site he had visited. Local followers rejoiced.
Temples are the biggest and most sacred buildings used in the Mormon faith,
and from the start, it was clear that Belmont's temple would be a substantial
project. The original proposal called for the structure to be 94,000 square
feet, three stories high, and topped by six spires, the tallest towering 156
feet into the sky. From any vantage point, the temple would dominate the
landscape, dwarfing every surrounding structure.
Not surprisingly, many local residents reacted to the proposal with emotions
ranging from cautious concern to apoplectic rage. The project was sited in an
affluent residential neighborhood, a quiet place where kids rode their bikes in
the street and the loudest noises often came from the jaybirds nesting in
nearby treetops.
For more than a year, opponents flocked to town hearings to try to stop the
construction. Several times, the Mormons agreed to reduce the temple's size,
eventually coming down to 69,000 square feet with a single steeple 139 feet
high. Neighbors continued to fight it, but Belmont's Zoning Board of Appeals
approved the scaled-down project in December of 1996. The temple is now well
under way, with completion slated for spring 2000.
But now, three Belmont neighbors are suing the town and the church in US
District Court, trying to block the temple on constitutional grounds. The suit
contends that the town's approval of the temple was unconstitutional because it
relied heavily on the Dover Amendment, a 48-year-old state law that largely
exempts schools and places of religious worship from local zoning regulations.
The Dover Amendment, the plaintiffs argue, violates the First Amendment's
clause against the establishment of religion, because it gives religious
institutions an enormous advantage in the zoning permit process -- the kind of
advantage no layperson could ever enjoy.
To argue their case, the Belmont neighbors have retained Mark White, a Boston
attorney who won the region's other big constitutional lawsuit of the 1990s:
the Julia McLaughlin case, which led to the end of the racial quota system used
by the Boston Latin school.
"We are not saying that these [churches] should be prohibited from going in,"
White says. "What we are saying is that the cities and towns should have some
say when they do go in."
As a result, what began as a neighborhood battle has turned into what may
become Massachusetts's most important church-state confrontation of the decade.
Virtually every city and town in the state has used the Dover Amendment at some
point, and though countless churches and schools have benefited, many residents
are divided on whether the law protects these organizations or gives them too
much clout. Indeed, though the Belmont lawsuit is directed specifically at
religious use, officials in college cities and towns like Newton and Brookline
-- who feel the Dover Amendment grants excessive power to schools -- are
watching the case closely.
"This changes the stakes," says Grant Bennett, the bishop of the Belmont ward
of the Latter-Day Saints. "It changes from being about whether a Mormon temple
should be built in Belmont to a much broader issue that encompasses every other
religion, and every other educational institution, in the Commonwealth."
The Belmont project is but one of a series of Mormon temples under construction
worldwide. The Latter-Day Saints have set a goal of 100 completed temples by
the end of the century; 53 are already in operation, half of them in the United
States. The goal is for every church member -- there are more than five million
in this country, and another five million outside the US -- to live within four
hours of a temple. Currently, the closest Mormon temple to Boston is outside
Washington, DC. There are also temples planned for White Plains, New York, and
Halifax, Nova Scotia.
Mormon temples are used primarily for three ceremonial events, called
ordinances: baptism, endowment (a ceremony recognizing a member's acceptance of
church doctrine, usually performed in a person's late 20s), and marriage. And
because the Latter-Day Saints believe a family unit remains intact in the
afterlife, living members also use the temple to perform ordinances on behalf
of deceased relatives who were not baptized as Mormons -- in order to ensure
that the entire family can be together in heaven.
The large size of Mormon temples is mostly symbolic. "They are intended to
symbolize the highest life of which we are capable," says Bennett. Temples are
not used for mass gatherings; typically, only a handful of family members
attend a temple ceremony. Many Mormons come to temple only once in their lives,
Bennett says.
Clearly, the immense scale of temples can make them difficult to site and
build, not to mention expensive. Cost projections for the Belmont temple reach
$27 million. Add the predictable showdowns with neighborhood opponents and
zoning boards, and constructing a temple can get complicated even before the
first batch of concrete is poured.
But here in Massachusetts, the Latter-Day Saints knew they had an ace in the
hole: the Dover Amendment. Passed by the state legislature after the town of
Dover -- citing local zoning laws -- tried to stop a Catholic school from being
built, the amendment states that "no bylaw or ordinance which prohibits or
limits the use of land for any religious, sectarian, or denominational
educational purpose shall be valid." Later, the amendment's reach was expanded
to include nondenominational schools, colleges, and universities.
The Dover Amendment applies to every municipality in the state except for
Boston and Cambridge, which lawmakers agreed had already committed sizable
tracts of land to churches and, especially, schools. It doesn't mean a church
or school can build whatever it wants -- institutions are still subject to
"reasonable" local regulation -- but it does explicitly protect religious and
educational use.
Clearly, the amendment's intent was to prevent communities from banning
certain churches and schools. "There was a time when [lawmakers] were worried
that neighborhoods might try to stop Catholics from coming in, and Jews as
well," explains state representative Jan O'Brien (D-Hanover), who from 1991 to
1993 chaired a state land-use committee that revisited the Dover Amendment.
"The law was really for religious institutions and religious education, but
somehow all education became a protected use as well."
Indeed, there is little question that the state's educational institutions
have benefited from it. Many times, schools have relied on the amendment when
communities have tried to restrict their expansion projects. In 1993, Tufts
University successfully sued the city of Medford, charging that the city wasn't
recognizing the Dover Amendment. (Tufts also settled out of court with
Somerville.)
"The fact that [educational] use is protected is critical," says Barbara
Rubel, Tufts's director of community relations. "There are always going to be
people in your neighborhood who don't think you need facilities or a certain
kind of building. But the need for institutions to be able to progress and
serve their ever-changing needs is critical."
The same applies to religions, says Bennett. As the Mormon faith grows in
the region -- there are more than 41,000 Latter-Day Saints in New England --
structures must be built to meet this demand, he says. And the Dover Amendment
protects the church's right to do so.
"I strongly support the Dover Amendment," Bennett says. "I believe that the
uses protected by the Dover Amendment -- religion and education -- have
inherent and important benefits in a modern society."
Charles counselman moved to Belmont in 1971 in search of tranquillity. But
Counselman, a professor of astronomy at MIT, says there's little tranquillity
in his neighborhood now. From day one, he says, construction on the Mormon
temple has disrupted the hilltop area where he lives. When builders began
blasting to dig the foundation, pieces of granite and rubberized blasting mats
flew into neighborhood backyards. One fist-size chunk of granite nearly struck
a neighbor in her driveway, Counselman says.
Counselman stresses that it's the siting of the temple project -- not the
temple itself -- that bothers him and his Belmont Hill neighbors the most.
"Although the temple is very large and serves a very huge region of the
country, they [the Latter-Day Saints] chose to put it in what was a very
pleasant, green neighborhood," he says.
During the permitting process, Counselman and his fellow abutters tried but
failed to persuade the church or the town to move the project elsewhere.
Frustrated, they are now challenging the Dover Amendment, arguing that what
began as a well-intended law to protect religious freedom is actually a
violation of the First Amendment.
"The Dover Amendment gives special privileges to religious organizations over
nonreligious organizations," says Counselman. "And that strikes some people as
unfair."
Indeed, Counselman and his two fellow plaintiffs, Margaret Boyajian and Jean
Dickinson, want to convince the court that the construction of the Mormon
temple is unconstitutional because the Dover Amendment, which was crucial to
its approval, is itself unconstitutional. The way to accomplish that, attorneys
for the plaintiffs say, is to show that the Dover Amendment gives churches an
unfair advantage not enjoyed by private individuals or secular organizations.
(The lawsuit does not challenge the educational component of the Dover
Amendment, since it raises no constitutional issue for the state to promote
education. The suit is also not related to a separate lawsuit challenging a
special permit for the temple's steeple, which goes to trial December 10.)
"Developers come to me all the time with a piece of land, or the ability to
buy a piece of land," says Newton-based attorney Michael Peirce, who is
handling the zoning issues for the plaintiffs in the constitutional case. "And
the first question they ask is, `What am I allowed to do with it?' If you're a
religious organization, you really don't have to ask that question."
Arguing the constitutional component of the Belmont suit is Mark White, a
49-year-old attorney who is best known for the Julia McLaughlin case, in which
federal judge
W. Arthur Garrity instructed Boston Latin, one of the city's most prestigious
public schools, to admit a white 13-year-old girl who had been denied admission
even though her entrance-exam scores were higher than those of many minority
students who got in. The judge's order led Boston to throw out its 20-year-old
system of raced-based quotas in public exam schools.
What the McLaughlin case did to racial quotas in city schools, White says, the
temple case could do to the Dover Amendment. "The Mormon petition is just a
vehicle for challenging the statute," he contends, and the case is custom-built
for this challenge. Because the town of Belmont was essentially forced to allow
the Latter-Day Saints to build a structure of such grand size and impact, White
says, the temple case is a clear illustration that the amendment gives these
institutions too much latitude -- and amounts, in effect, to government
establishment of religion.
"This [temple] is the prime violator of the whole principle of what's fair,"
he says.
White and his co-counsel, Peirce, believe that recent actions of the US
Supreme Court support their position. In last year's City of Boerne v.
Flores decision, the Court struck down the Religious Freedom Restoration
Act, a 1993 federal statute protecting religious rights from excessive
governmental interference. The RFRA had been passed after the Supreme Court
ruled in 1990 that Native Americans have no constitutional right to use the
hallucinogenic drug peyote, a decision that was widely panned by churches and
civil rights groups.
Boerne had its genesis when a Catholic church in Texas tried to
demolish part of an old church and build an addition but was turned down by the
city because the property lay in the local historic district. The church sued,
invoking the RFRA. But the city fought back, arguing that the statute was
unconstitutional because it took power away from federal courts and the states.
In a closely watched 5-4 decision, the Supreme Court agreed.
"When the exercise of religion has been burdened in an incidental way by a law
of general application, it does not follow that the persons affected have been
burdened any more than other citizens, let alone because of their religious
belief," Justice Anthony Kennedy wrote on behalf of the majority.
Arthur Burney, a professor of constitutional law at Boston College, says the
Texas case points to lingering unrest over the government's role in religious
activity. "There is a tension [in the First Amendment] between freedom of
expression and the establishment clause," Burney says. "You can have free
exercise, but if you go over a line, then the state is [seen as] helping the
church."
In some ways, the Dover Amendment lawsuit also recalls Larkin v. Grendel's
Den, the celebrated 1983 Supreme Court case in which Harvard Law School
professor Laurence Tribe persuaded the nation's highest court to overturn a
state law that allowed churches veto power over liquor licenses in their
immediate neighborhoods. In that case and this one, the central question is the
same: when does a protection afforded to churches stop being a protection and
become an unconstitutional advantage?
"It provided an advantage to religion that no one else had," Michael White
says of the law that was struck down in Larkin. "In that way, there may
be a parallel to this case."
White, a former Newton alderman, and Peirce, who was formerly Newton's
associate city solicitor, believe that the Dover Amendment has become the bane
of cities and towns with legitimate concerns about religious and educational
land use. This claim is backed up by Jeffrey Wheeler, Belmont's town-planning
coordinator. While Wheeler offers no specific position on the lawsuit, he does
believe the law unfairly strips municipalities of their ability to regulate
church and school construction.
"New England takes a great deal of pride in local government, and not being
able to control something locally is a slap in the face," says Wheeler.
But the constitutionality of the Dover Amendment wasn't before the Belmont
Zoning Board of Appeals, says the board's chairman, John Gahan. In fact, he
says, the constitutionality of the law didn't come up. "In our role as a zoning
board, we presume the validity of the Massachusetts laws that are in effect,"
says Gahan, a lawyer himself. "Both sides in the [temple] dispute presented
their views with respect to the Dover Amendment, but neither side was making
the argument that it was unconstitutional or in any way infirm. They were
basically advocating their position as to how their case fit within the
existing structure of the law."
Still, officials in other Massachusetts communities may be paying close
attention to Belmont's Dover Amendment challenge. White cites Newton, Ipswich,
Acton, and Cape Cod as places where religious construction is or has recently
been controversial. "This is a common problem," he says.
Two communities clearly sympathetic to the Belmont plaintiffs are Newton and
Brookline. For years, both communities have struggled with neighboring
universities over school expansion. Newton continues to skirmish with Boston
College; Brookline's nemeses include Boston University and Newbury College.
Officials in each community have argued that the Dover Amendment grants too
much power to schools.
"The community has felt it was powerless to stop them because we couldn't
regulate [educational] use," says Ronny Sydney, a state representative-elect
who was the chair of the Brookline Board of Selectmen.
Three times, in fact, Brookline went to the state legislature and tried to get
an exemption from the Dover Amendment similar to Cambridge and Boston's. Three
times, they failed. Every time the amendment came up for discussion, colleges
and universities fought to protect it.
"Education was truly opposed," says Jan O'Brien, the land-affairs-committee
chair. "And they carry a tremendous amount of weight in the legislature."
In the Mormon temple case, religious organizations could make a similar show
of force. "I suspect that the Mormons will soon find many other denominations
as allies as they argue in court for their temple, because the argument is no
longer just about their temple. It is now about synagogues, cathedrals,
mosques, and churches constructed by all faiths in Massachusetts," wrote David
Campbell, a Mormon, in a September 1 letter to the Boston Globe.
Grant Bennett, the Belmont Mormon bishop, says that support from other
religious groups is already apparent. "We have informally contacted a prominent
religion in the state of Massachusetts, which has indicated that if [the suit]
progressed, it would fully cooperate," he says.
Taking on a law like the Dover Amendment raises fundamental questions about the
relationship between church and state. One side asks whether the law has
unconstitutionally given religious organizations an advantage over secular
groups. But the other side -- questioning whether the state can be relied on to
render fair judgments about religious growth -- argues that churches should be
allowed to set their own courses.
"There are sympathies on both sides of this issue," says Wheeler, the Belmont
planning coordinator. "There are people who say that the problem with our
society is that morals and values are going down the drain, and when people
want to build a church, they wonder how we can object to it. But other people
say this isn't a church, this is a regional facility, and ask how we could do
this to a quiet little neighborhood."
What results is a sensitive and potentially divisive case. Few subjects are as
highly charged and personal as religion, and no one wants to appear to stand in
the way of the right to worship. For this reason, Brookline's Ronny Sydney
suspects that her city -- even though it would like to see the Dover Amendment
tossed out -- won't touch the Mormon temple case. "I don't think Brookline will
go near it because it involves religion," she says.
Indeed, Belmont hasn't escaped allegations that opposition to the temple is
based, at least in part, on anti-Mormon sentiment. When the Latter-Day Saints
were building their smaller Belmont meetinghouse in 1983, a suspicious fire in
the nearly completed chapel caused a half-million dollars' worth of damage.
(The cause of the blaze has never been officially determined.) And anti-Mormon
literature was passed out before at least one of the hearings to discuss the
temple project.
The issue of anti-Mormonism remains, at the very least, a delicate subject.
Charles Counselman stresses that he and his neighbors are "not anti-religion or
anti-church . . . we're just trying to protect our neighborhood."
Grant Bennett concedes that "there is some bigotry out there," but emphasizes:
"I don't believe there is any anti-Mormon sentiment amongst the direct
abutters to the property."
One person with some perspective on such issues is Mark White, who found
himself criticized when he took on the McLaughlin racial-quota case. White, a
practicing Jew, says he expects to hear similar complaints about the Dover
Amendment case.
"I'm a lawyer and I defend legal positions. I think these people [the
plaintiffs] are right," he says. "I'll take the hit. I'll take the hit from my
own religion, too."
While the Belmont citizens prepare their legal challenge, construction on the
Mormon temple moves briskly. A massive concrete wall now surrounds the
property, and a crew of more than 30 workers is busy pouring the foundation. In
early November, steel framework is expected to go up.
Last week, Gordon Hinckley, the Mormon president, returned to Belmont Hill to
see how construction on the temple has progressed. His visit made it clear what
Bennett and others already knew: these are historic days for Massachusetts
Mormons. By preserving the Dover Amendment and finishing their temple, they
hope to reach even greater heights. But it's uncertain which event will be
accomplished first -- or whether either will be accomplished at all.
Jason Gay can be reached at jgay[a]phx.com.