The Boston Phoenix
October 22 - 29, 1998

[Features]

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.

| home page | what's new | search | about the phoenix | feedback |
Copyright © 1998 The Phoenix Media/Communications Group. All rights reserved.