The First Church in Somerville, Massachusetts, has a plan to renovate part of the church building and rent it out to the Somerville Homeless Coalition, a secular group that aids the homeless, according to a report in the Boston Globe. Under the plan, the Coalition will house the homeless in the new space (the Coalition already feeds the homeless at the church). The shelter will have a “low threshold” policy, which means that drug users will not be turned away. Neighbors are upset and have argued to the Somerville Board of Zoning Appeals that the shelter violates current city zoning laws. But Massachusetts has a law called the Dover Amendment, which mostly overrides the power of cities and towns to “regulate or restrict the use of land or structures for religious purposes” on land “owned by a religious sect or denomination.” There are similar federal laws, and the Constitution’s Free Exercise Clause (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) is in play, too. The Church says that housing the homeless is its religious duty. According to the Globe, the case may end up in the courts.

Why am I writing about this? When I read the article, I was struck by the similarities between the arguments of the neighbors and arguments that come up in FSIA commercial activity cases. Here is the Globe:

In Somerville, the attorney for the neighbors opposed to the shelter, Anne Vigorito, questioned whether First Church’s proposed shelter was explicitly religious at a public meeting this month, noting to members of the city’s Zoning Board of Appeals that the church did not plan to minister to its guests, and that most of the work at the facility would be done by a secular nonprofit, not church members. Instead, she accused the church of being motivated by something else: paying the bills.

“The church is simply leasing out a portion of its property as any of us could do, and they’re leasing it out to a secular institution for monetary gain, just like any other building owner would do,” Vigorito said at the hearing.

The rule under the FSIA is that when you are deciding whether a foreign state’s activity is commercial, you look at the nature of the activity, not the purpose. But it’s not a simple test to apply. Long-time readers will remember my case against the government of Canada, where the issue was the Canadian government’s failure to purchase worker’s compensation insurance for a low-level, American, clerical employee at its consulate in Boston. It did the same thing that any private employer could do: it failed to buy insurance. Its reasons (it had a policy of applying Canadian law rather than local law) didn’t matter. But the test is not as simple as it may seem, and the outcome probably would have been different if, say, the consul general had been injured on the job and sought benefits under Massachusetts law.

There are some similar trends in the law of religious organizations in the United States. For example, can a church that runs a school fire a teacher because he is gay, contrary to antidiscrimination laws? Well, it depends, just as in the FSIA context. Is the teacher teaching a religious subject? Is he ordained or otherwise considered a “minister”? What about zoning laws? Well, it depends. Is the building an embassy or consulate? Or is it a residence that the foreign state happens to own and rents out?

If the comparison with the FSIA is a useful way to think about the Somerville case (which it may or may not be—I have not looked to see how courts deal with this, or whether any court has considered sovereign immunity law as a guide here), then I think the neighbors may have a good point. Yes, the Church has a religious purpose for what it is doing (and an American court will never second-guess what a church says about its religious beliefs), but the nature of its activity is the same as what any private landlord could do. On the other hand, the space that is being rented out is (I think) in the church building itself, and the church is like an embassy in FSIA terms. But on yet another hand, one of the reasons embassies are especially difficult for municipal enforcement of zoning laws isn’t sovereign immunity at all, but the inviolability of the premises under the Vienna Convention, and popular misconceptions to the contrary, there is no law of sanctuary that protects church buildings as such.

Image Credit: Steve McFarland (CC BY-NC)