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Court of Appeal Rejects Bid to Reopen Scottish Rite Cathedral
Panel Says Revocation of Occupancy Permit Did Not Violate Masons’ Religious Freedom
Friday, October 19, 2007
By KENNETH OFGANG, Staff Writer
A property owner’s maintain religious use of its facilities without revenues generated by non-religious activities will not subject a zoning restriction on the facilities’ use to heightened scrutiny under federal law, the Court of Appeal for this district has ruled.
Div. Seven affirmed a ruling by retired Los Angeles Superior Court Judge Robert H. O’Brien, who sits on assignment, denying a petition for writ of mandate brought by the Scottish Rite Cathedral Association of Los Angeles and the Los Angeles Scottish Rite Center, LLC. The opinion by Presiding Justice Dennis Perluss was filed Oct. 3 and certified Wednesday for publication.
The cathedral association is a nonprofit Masonic organization that built and owns the Scottish Rite Cathedral, located in the mid-Wilshire area of Los Angeles. The limited liability company is a private entity that operates the cathedral under a lease with the cathedral association.
The cathedral association obtained city approvals in the 1950s to build a four-story Masonic temple and parking lot on the property. In 1963, the city issued a certificate of occupancy for the new cathedral, including an auditorium and assembly room with capacity of more than 1,800 persons each, a dining room accommodating 860 people, and several smaller rooms.
The city approved the project with only 259 parking spaces, about half the requirement for a commercial development of similar size, apparently based on the cathedral association’s representations that only charitable and nonprofit organizations would use the facilities.
As Masonic membership began to decline in the 1970s, the number of non-Masonic events at the location, including those sponsored by for-profit organizations, increased, despite occasional warnings by the city that such uses were inconsistent with the applicable land use restrictions.
In 1993, the city initiated nuisance abatement proceedings, citing complaints of parking, noise, and trash problems. Following administrative hearings and appeals, the mayor and council made a finding of public nuisance and restricted future use of the cathedral to Masonic or “related” activities.
The cathedral association determined that it could not afford to operate the building under the city’s restrictions, and closed it for nearly 10 years before entering into a lease with the LLC, which refurbished it and subsequently held several events there, leading to further complaints from Hancock Park neighbors and further hearings.
Eventually, the mayor and council ordered that future use of the building be limited to Masonic organizations, specifically barring non-Masonic activities even if philanthropic or religious, and prohibited charges for parking. But after further complaints from neighbors that non-Masonic events—including a boxing card for which tickets were sold by TicketMaster and at which alcohol was sold without a conditional use permit—were being staged, the city revoked the certificate of occupancy.
In petitioning for a writ of administrative mandate, the cathedral association and the LLC argued that the city was violating their rights under the Religious Land Use and Institutionalized Persons Act of 2000.
RLUIPA, a federal statute enacted in response to a Supreme Court decision striking down the Religious Freedom Restoration Act of 1988, limits the extent to which local entities that receive federal funds may impose land use restrictions on the use of property for religious purposes. Such restrictions must be non-discriminatory and must be no more intrusive than necessary to vindicate compelling governmental interests.
O’Brien denied the petition on the ground that Freemasonry is not a religion.
Perluss—whose wife is a rabbi—said O’Brien was wrong to the extent that RLUIPA protects religious exercise “whether or not compelled by, or central to, a system of religious belief,” but that the writ was correctly denied because the use of the facility for non-Masonic purposes is not protected by RLUIPA.
“The broad sweep of this statutory mandate has been applied to activities as divergent as religiously affiliated schools...nonprofit hospitals...and faith-based crisis centers....At the same time, we share the Second Circuit’s misgivings about RLUIPA’s apparent reach insofar as it purports to favor all religiously oriented uses over identical secular uses: ‘RLUIPA occupies a treacherous narrow zone between the Free Exercise Clause, which seeks to assure that government does not interfere with the exercise of religion, and the Establishment Clause, which prohibits the government from becoming entwined with religion in a manner that would express preference for one religion over another, or religion over irreligion.’”
The quoted language is from Westchester Day School v. Village of Mamaroneck (2d Cir. 2004) 386 F.3d 183.
In this case, however, the stated principles and practices of Freemasonry clearly qualify as “religious exercise,” Perluss said. He noted that Masons aspire to achieve higher “degrees,” conferred in rituals involving acceptance of moral principles, including the importance of religion and ethical behavior; that one may receive a degree only upon professing a belief in God; that members are encouraged to live their lives according to religious belief; that a Bible is required to be present at every meeting; and that the Masons adhere to a philosophy largely rooted in Judaism and Christianity.
RLUIPA, however, does not protect non-religious uses of facilities owned by religious institutions, he said. “Specifically, a burden on a commercial enterprise used to fund a religious organization does not constitute a substantial burden on ‘religious exercise’ within the meaning of RLUIPA,” the jurist wrote.
The legislative history and case law in other states, Perluss wrote, make clear that RLUIPA does not require strict scrutiny of a restriction on the secular uses of religious organizations’ facilities. He cited a Pennsylvania case in which the state’s intermediate appeals court held that RLUIPA did not protect a church’s right to operate a day care facility because “lack of a daycare only had a de minimis impact on the Church’s opportunity to engage in fundamental religious activities.”
The cathedral association, he noted, acknowledged that it closed the facilities “not because of any animus toward its form of religious exercise but because the Cathedral was no longer financially viable limited to use as a nonprofit Masonic lodge and could not survive without being marketed for non-conforming public auditorium uses that exacerbated parking impacts on the neighborhood.”
To the extent that the association had any rights to continue to use the facilities under the First Amendment or RLUIPA, Perluss said, it gave up those rights when it “[i]n effect...ceded its right to operate the Cathedral to LASRC, a commercial entity with no apparent relationship to Masonic practices other than its name, which then marketed the Cathedral as a venue for all events, commercial events included.”
He cited a 2004 declaration by the president of the cathedral association saying the association had not conducted any Masonic functions at the location since 1993 and had no intentions of holding any in the future.
Attorneys on appeal were Roger Jon Diamond and Roman P. Storzer for the petitioners, Deputy City Attorney Tayo A. Popoola for Los Angeles, and Susan Brandt-Hawley and Paige J. Swartley for the Windsor Square Association, a homeowner group that intervened in the litigation.
The case is Scottish Rite Cathedral Association of Los Angeles v. City of Los Angeles, 07 S.O.S. 6270.
Copyright 2007, Metropolitan News Company