*1 Maryland; American Lib ion of Civil Lieb, Act fee the Lanham F.2d Capital the National 11 as a erties Union of from Rule distinct is provision Area, Amici Curiae. it “looks to part for fees basis rather than to small of the case” whole No. 99-2352. we dis- litigation. As segments Appeals, States Court of United than above, more presents this case cussed Fourth Circuit. abuse; litigation incidents of isolated 2,May Argued: fi- attempt to beat a sweeping involves the use through opponent nancially weaker Aug. Decided: no Because we see litigation. of vexatious District Court’s of discretion abuse exceptional that this ease
determination 35(a), the court’s we will affirm
under ground. on that of fees
award
III. forth, affirm we will
For the reasons set denying the order of the District Court and the order motion to recuse
Appellants’ awarding attorney’s Court
of the District
fees. EHLERS-RENZI;
Birgit Vincent
Renzi, Plaintiffs-Appellees, THE HOLY SCHOOL OF
CONNELLY INCORPORATED,
CHILD,
Defendant-Appellant. Congress; The
The American Jewish Liberty; Religious Fund for
Becket the Protestant
The Convention
Episcopal Diocese of Church
Washington; Conference Cor General Adventists; Seventh-Day
poration of on Law Commission
National Jewish Policy; The Roman Catho
and Public Washington; Union
lic Archdiocese Congregation of
of Orthodox Jewish
America; Liberties Un- American Civil *2 Roberts, Jr., Hogan
ARGUED: John G. Hartson, L.L.P., D.C., Washington, & Renzi, Appellant. Potomac, Vincent D. Maryland, for Appellees. ON BRIEF: Garre, Gregory Hogan Hartson, G. & L.L.P., D.C.; Washington, K. William Wil- burn, Farabow, Seyfarth, Sara Beiro Shaw, Geraldson, Washing- Fairweather & ton, D.C., Hasson, Appellant. Kevin J. Treene, Eric Storzer, W. Roman P. The Becket Fund for Religious Liberty, Wash- D.C., ingtonj for Amici Curiae American Congress, Jewish et al. Arthur B. Spitzer, American Civil Liberties Union of the Na- Area, tional Capital Washington, D.C.; Sullivan, Dwight H. American Liber- Civil Baltimore, ties Maryland, Union of Mary- land, for Amici Curiae Unions. WIDENER, MURNAGHAN, Before NIEMEYER, Judges. Circuit Reversed published opinion. Judge NIEMEYER wrote opinion, in which Judge joined. WIDENER Judge MURNAGHAN dissenting wrote a opinion.
OPINION NIEMEYER, Judge: Circuit Birgit husband, Ehlers-Renzi and her Renzi, Vincent Montgomery County, Ma- ryland, homeowners who live across from a Roman Catholic school which is construct- ing improvements and additions to the school without obtaining “special excep- tion,” challenge the constitutionality of Montgomery County Zoning Ordinance 59-G-2.19(c), which exempts such schools from special exception require- ment. The Renzis contend that the ordi- nance violates the Establishment Clause of Amendment, the First applied to the through States the Fourteenth Amend- ment. court, agreeing district with the
Renzis, declared ordinance unconstitu- enjoined tional and from con- construction, tinuing except to complete a parking lot and sediment pond, which Connelly whether County determine For the already begun. had construction exempt from the re- follow, School was indeed we reverse. reasons special exception. quirement obtain I ruled that When special excep- exempt was Child, School Holy Connelly School *3 Renzis an ad- School”) requirement, filed tion operates a non- (“Connelly Inc. Montgomery appeal ministrative with college-preparatory profit, They subse- County Appeals. Board of un- grades through in women young however, appeal, withdrew that quently Roman Catholic of the auspices der the school, and filed this action for a declara- according to its instead In the Church. relief, injunctive only tory judgment alleg- are not and values catalog, “Christian and the put prac- ing exemption into that school’s in the classroom but taught the Es- tice,” required exemption to take on the violate students are reliance and masses. Con- of the First Amend- courses and attend tablishment Clause and opened in 1961 is situated ment. nelly School Bradley Boulevard of land on on ten acres summary judg On cross-motions Potomac, and Maryland. The school ment, Zoning the district court ruled that Society land are owned 59-G-2.19(c) violated the Es Ordinance Jesus, Inc., Pennsylvania cor- a Holy Child Renzi v. Connel tablishment Clause. See under the operates also which poration, Child, F.Supp.2d ly Holy Sch. of Roman Catholic Church. auspices of the (D.Md.1999). Applying the test set forth school, of 413 had an enrollment The which Kurtzman, in Lemon v. academic during the 1999-2000 students (1971), L.Ed.2d 745 building, main large from a year, operates determined that the court trailers, classrooms located two modular not have a secular Zoning Ordinance did chapel. The with an attached and a home Connelly rejecting legislative purpose, athletic fields and also includes property encouraged argument that School’s lots. parking public-school use of under-utilized private fund-raising campaign initiating a
After education, facilities, and alleviat promoted firm, Connelly an hiring and architectural reli interference with governmental ed two exist- plans to remove finalized School if the that even The court reasoned gion. trailers, structures, and as well as ing interference, such did minimize two-story 30,000 square-foot, a to construct in constitutionally would be “that classrooms, library, a building to contain “wholly conjectural it is sufficient” programs, and art for music facilities identified risk of and does relate plans also areas. other educational governmental ‘significant’ of additional for the construction provide court The district religious affairs.” with parking areas. exemption impermissi- ruled that the it allowed religion because bly advanced construction, Connelly beginning Before density re escape the landowners neighboring informed Zoning Ordinance strictions special exception it would not seek secular schools applicable to were § 59-G- plans because for its construction increase their enroll easily more thereby 2.19(c) County Zoning Montgomery obligations. financial and fulfill their ment Ordinance”) exempts (“Zoning pa- exception requirement special followed. appeal This or on land owned schools located rochial organiza- or by a church leased II notice, Ren- receiving After tion. County Zoning Ordi- Montgomery from Connel-
zis, live across the street who edu- requires private ordinarily nance School, Montgomery requested that ly States, cational institutions and other nonresiden- the United Maryland the State of tial areas thereof, uses residential to obtain or agency “special exception” constructing im- or any incorporated before village or additions, provements and within Montgomery County. such as those town planned by Zoning School. Ordi- While nance 59-C-1.31. a special To obtain exempts from the exception re- exception, a private required school is quirement private schools located on prop- petition containing file a specified informa- erty owned or leased either by the nation- tion, including a explaining statement “in al, state, or government local detail how special exception pro- church or organization, it is the posed to operated,” supported be by a portion exempting a “parochial school, plat, drawings, plan a site for the which is located in building premis- or on *4 proposed §§ construction. Id. 59-A- es by any owned or leased church or reli- 4.22(a), 59-G-2.19(b). The petition may be gious organization” that the Renzis chal- granted only after notice public and hear- lenge as improperly establishing religion. ing, 59-A-4.41(a), § see id. during which argues that exemp- may testify residents petition, on the tion by Zoning § created Ordinance 59- Appeals may Board of grant special G-2.19(c) represents an appropriate effort exception petition only if it finds that the by Montgomery County to accommodate private school’s use “will not constitute a religion “by excusing simply religiously- nuisance”; that it will be “housed in build- affiliated entities regulatory burdens ings architecturally compatible with other placed on others.” It maintains that the buildings in surrounding neighbor- exemption’s purpose is to gov- alleviate hood”; that it will adversely not “affect or ernment interference with ability of change present character or future religious organizations to fulfill their reli- development of the surrounding residential missions; gious that its effect is to “make community”; and it “can and will be it easier” for religious organizations to developed in conformity with” various religion; advance and that it avoids the specified 59-G-2.19(a). requirements, §id. entanglement “that would follow from The Zoning provides, Ordinance in addi- subjecting religious special schools to the tion, that the exception use must be exception process.” inspected annually compliance for with re- contend, hand, The Renzis on the other imposed strictions in connection with the 59-G-2.19(c) § Ordinance special exception, the special excep- legislative evinces no secular purpose tion respond holder must any ongoing that it does not “remove a burden from the complaints of noncompliance, and that the free religion” exercise of required special exception use subject is to revoca- “ Connelly School’s ‘accommodation of reli- (e). tion. 59-G-1.3(a), (b), See id. gion’ argument.” They argue that the ex- requirement The to obtain a special ex- emption indirectly religion. aids ception, however, not apply does all they While acknowledge that such aid is nonresidential In particular, uses. Zoning permissible if it from a arises neutral and provides the fol- law, generally applicable they maintain lowing exemption: that it is impermissible when it “only bene- requirements of this section shall fits landowners.” Finally, apply lot, the use of lots or argue Renzis that Zoning 59- G-2.19(c)
tract of land any private educational government fosters excessive en- institution, school, parochial which tanglement with because it “is located in a building or on premises likely to cause or intensify political frag- owned or leased church or reli- mentation and along divisiveness gious organization, government of lines.”
287
We
thus confronted with
ques-
ligion
are
violating
without
the Establishment
exempting
Clause,
tion of whether
a parochial
and at
government
times the
must
procedures
restric-
do so. See Corporation
the Presiding
required
tions
a special
otherwise
obtain
Bishop
the Church
Jesus Christ
exception Montgomery
violates Latter-Day
Saints v.
483 U.S.
the Establishment
(1987)
Clause of the First
institution with religious
affiliation” does
have said
never
was
intended
Es
not,
alone,
for that reason
violate the Es
Clause”);
tablishment
Dist.
Ab
of
Allen,
tablishment Clause. Mueller v.
463
ington Township
Schempp,
v.
374 U.S.
388, 393,
3062,
U.S.
103 S.Ct.
L.Ed.2d
77
203, 225,
1560,
83 S.Ct.
397
at
U.S.
288 held that the the Court or where hand, sponsorship improper
the one
prohibi-
other,
organizations
deli
must be
interference,
on
exer
em-
the free
discrimination
protect
against religious
to
tion
both
cately drawn
Rights
its estab
prohibit
and to
of the Civil
of Title VII
ployment
cise of
Kurtzman, 403
v.
In Lemon
establish
improperly
lishment.
Act of 1964 does
745
29 L.Ed.2d
91 S.Ct.
Amend-
U.S.
of the First
religion in violation
articulated a
(1971),
Supreme
339-40,
Court
Amos,
at
ment. See
line,
a test
has
drawing
test for
apply the
Accordingly, we now
S.Ct. 2862.
applic
in its
criticized
frequently
been
since
analyze
to
refined in Amos
test
Lemon
McConnell,
See,
W.
e.g., Michael
ation.*
organizations
Crossroads, 59 U.
at a
Freedom
Religious
by the
imposed
requirements
(in
(1992)
the Lemon
L. Rev.
Chi.
Ordinance.
a formula
test,
has contrived
Court
“the
Clause
the Establishment
interpreting
IV
within a sin
inconsistencies
that contains
Lemon’s three
the first of
Under
test”).
cases since Lemon
while
And
gle
Zoning Ordinance
we ask whether
prongs,
adapt
the test
apply
continue
legislative
has a “secular
see,
circumstances,
v.
e.g., Mitchell
various
Lemon,
—
that
challenge against Con-
scope of the Renzis’
They argue
organization.
religious
by a
case,
possibility
in this
nelly School
belies
exemption
this
that the breadth
in a
applied
exemption
would be
that
to extricate
any purpose
setting is remote.
completely religious
matters
rather
but
religious
exempt
does
religious land-
to favor
a
indicates
Thus,
uses.
but rather school
landowners
they
argument,
of this
support
In
owners.
exempts any private school
the ordinance
involving use of
up hypothetieals
conjure
by
religious
a
property
on
owned
located
entities,
such
by
exemption
secular
the school is de-
organization. Whether
school,
on land
operate
that
cosmetology
a
nonsectarian,
parochial or
nominated
argument fails
This
by a church.
owned
its
operation and
inquiry into the school’s
on two levels.
would risk the
relationship
to
Because of
religious entanglement.
same
recognized that
First, must be
it
risk,
disa-
expressly
in Forest
we
this
Hills
challenging the utilization
are
Renzis
activi-
into
any inquiry
vowed
whether
by a Roman Catholic
of the
by
organizations
religious
ties undertaken
ad
improvements
construct
school to
rejected the
actually
and we
were
property
located
to a school
ditions
for a
that an
argument
operated under
corporation
by
owned
a
only
performs
if it
organization is valid
the Roman Catholic
auspices of
religious function. See 846
demonstrably
Thus,
us
not have before
we do
Church.
263;
F.2d at
see also
situations advanced
hypothetical
(“[I]t
significant
is a
more court is therefore inquiry into reli- ... intrusive [an] avoids Cohen, at 493. belief’); 8 F.3d gious REVERSED. Lem- language in rely on the Renzis While MURNAGHAN, Judge, Circuit presents exemption the argue that on to dissenting: 403 U.S. potential,” political “divisive Supreme Court the 91 S.Ct. that exists between natural tension entan- this Lemon subsequently confined Exercise and Free the Establishment finan- where direct test to “cases glement requires Amendment of the First Clauses parochial to paid are subsidies cial I Although be drawn. delicate lines that schools,” Muel- parochial in or to teachers analytical approach taken agree with 11, 103
ler, n. S.Ct. at 403-04 I with where majority, disagree by the in this case. 3062. the line they have drawn Montgomery agree I that Because do not 59-G-2.19(c) County Zoning Ordinance V of religion, accommodation permissible is a it the Establish- I that violates conclude in wisely function Religion and the State and, Amendment First ment Clause of the attending arenas, people but the different accordingly, I dissent. Keeping reli- the same. arena are each distinct, Corporation at the same of while on the rationale Relying and State gion people Bishop the Church Presiding of the the freedom protecting time of v. arenas, Latter-Day Saints requires Christ fully in both Jesus to act Amos, interact with 107 S.Ct. even recognize and State (1987), majority concludes incorporate L.Ed.2d 273 manage or but not to religion, County Zoning Ordi- Montgomery favoring reli- that by religious arena itself 59-G-2.19(c) passes first nance by favoring non- non-religion, gion over out in Lemon laid favoring prong one reli- test religion, over religion Kurtzman, another, by distinguishing over gion (1971), legiti- has not en- L.Ed.2d 745 does
among religions. State “signifi- purpose: to alleviate activi- mate secular of these establishment gage with governmental cant religious institutions exempts when it ties Rather, ability religious organizations define such regulations. land-use religious missions.” carry out from fo- their removes the State an 335, 107 might oth- 483 U.S. at religious conflict in which rums majority found Specifically, the action. improper State require erwise “spares challenged ordinance parochial an By providing review of numer- from the rigorous proper- any private schools or that otherwise could subjective factors ous organization, ty owned of its mis- implementation interfere with ac- permissibly has Montgomery 289). (Ante at sion.” by allowing these commodated County’s disagree. Application I facili- renovate their operate or schools to to the procedures Con- special exception special exception. obtaining a ties without significantly inter- nelly School would reaching this ground no new plowWe ability to define with the fere school’s conclusion, ineluctably which follows danger There is no carry out its mission. Hills, Amos, Forest holdings in in- County will become Cohen. program regulating school’s volved enforcing by simply education Ordi- we Accordingly, hold zoning rules and applicable generally not violate does nance at issue exception procedures the First Amend- Clause of Establishment *10 The special exception proce this case. cable regulatory burdens in order to better dures do burden the exercise of reli accommodate the free religion. exercise of gion way or to same the same This court followed path in Forest degree as did employee hiring require Hills by upholding a legislative exemption daycare ments at issue Amos or the in Virginia which relieves religiously affili- program regulations at issue in daycare Forest ated centers from the burdens of Early Learning Hills Center v. Grace licensing requirements applied to secular Church, (4th Baptist F.2d daycare Cir. facilities. In both Amos For- 1988). Hills, There is an important difference est one easily can discern genuine regulations between that reach into an or religious effort to allow op- institutions to ganization’s program personnel, on the erate programs and thereby fulfill their hand, one and those that only impact the significant, missions without substantive facilities, development of its physical on interference from government. In this case, the other. goes however, What on within the walls I do not see such genu- of the church buildings greater Instead, is of far ine effort. I see something that significance than the configuration of those very looks much ordinary like favoritism buildings. By failing to meaningful draw a religious for property owners in Montgom- line between “significant” and “incidental” ery County. Because I believe that such institutions, interference with I precisely favoritism is what the Establish- majority fear the is inappropriately forbids, ex ment Clause I would hold that panding and, principle Amos as a re County Zoning Ordinance sult, traveling 59-G-2.19(c) a path down that will ulti is invalid.
mately render the Establishment Clause
meaningless.
I support my find further conclusion the challenged ordinance does not
serve the purpose secular of avoiding gov-
ernmental interference with the church’s
mission
language
the ordinance
face, County
itself. On its
Zoning Ordi-
SALES;
Miller,
Inez
Debra M.
59-G-2.19(c)
nance
applies
only
Plaintiffs-Appellees,
schools,
but also to secular
operated
property
owned or
by religious
leased
institutions.
If the or- Alphonso
GRANT,
L.
in his individual
dinance
a legitimate
were
effort to avoid
capacity
capacity
his official
as
interference with the mission of religious
City
Lynchburg
member of the
schools, it would not be written so as to
Board;
Mason, Jr.,
Electoral
John E.
extend its benefits to schools that are not
capacity,
in his
individual
Defen
engaged
sort of
mission.
dants-Appellants,
language
overinclusive
of the ordi-
nance belies the legislative
accept-
ed
majority.
For both of these
Petty, Jr.,
capaci
David T.
in his official
reasons, therefore, I
conclude that
ty
City
Lynch
member
Zoning was not
burg
Board; City
Lynch
Electoral
Of
enacted with
legitimate
pur-
secular
burg
Board;
Spencer
Electoral
Carol
pose
avoiding governmental
Read;
Langhorne,
Arelia
in her offi
with the free
of religion.
exercise
capacity
City
cial
aas member of the
In
Lynchburg
the Supreme
Board;
Court marked a
Electoral
John
path
legislative
Cobb,
capacity
actions which relieve
in his official
as City
institutions from generally appli-
Lynchburg
member of the
notes
out of the
ery County from the resolution of disputes
way of religion,”
avoids
that could have a religious underpinning.
creation
in which anti-religious
forum
Would
challenges
citizen
actually be cloak-
underlying
animus
opposition
ing anti-religion or anti-denomination ani-
exception petition might
expressed.
be
short,
mosity? In
the low threshold of this
purposes
These
plausibly
are indeed
evi-
first
prong
Lemon
readily
by
cleared
dent on the face of the ordinance and have Zoning
plausible
Ordinance’s
purpose of
been found valid
analogous
in
contexts
extricating Montgomery County from
Supreme
Court in Amos
this
these involvements in religion.
Ctr.,
in Forest
Early Learning
court
Hills
We reached the same conclusion in For-
Church,
Inc. v. Grace Baptist
F.2d
Hills,
est
in which we upheld an exemption
(4th
Cir.1988)
263-64
(upholding ex-
of religious daycare centers from licensing
emption
religious daycare
centers
requirements. We concluded that the ex-
licensing requirements).
Walz,
See also
emption
legitimate
had the
secular pur-
(“Grants
at
S.Ct. 1409
pose of “avoiding] interference with the
exemption historically guard against
execution of
missions in a non-
danger of hostility toward religion”).
profit
area
which a
operates”
church
Amos,
In
the Supreme
applied
Court
and thereby “preventing]
state interfer-
Lemon’s first prong
to an
ence with church programs
provide
Title
Rights
VII of the Civil
Act of 1964
education and
children,”
care for
even
permitted
religious organizations to
though the instruction at
daycare
cen-
discriminate
employment
the basis of
ters may not have been explicitly religious.
religion. The Court found that the exemp-
Hills,
Forest