Zoning law meddles
with 1st Amendment


A judge has refused to dismiss a U.S. Justice Department lawsuit against Maui County for its rejection of a church's special-use permit.

A Maui zoning dispute appears to be headed to the U.S. Supreme Court, along with a California case that more exemplifies a nationwide conflict about the constitutionality of a law aimed at protecting churches. The Maui case should have been settled out of court, but the involvement by the Justice Department is likely to keep the appeal on track in an attempt to tamper with the First Amendment.

The Maui Planning Commission refused to issue a special-use permit that would have allowed a church called Hale O Kaula to add a second-floor chapel to an agricultural building on its land near Haiku. Opposition to the expansion has been based on increased traffic and lack of a water line.

In its lawsuit, the church cites a three-year-old federal law, the Religious Land Use and Institutionalized Persons Act. The Justice Department filed its own suit in July aimed at enforcing the federal law, which requires government to show a "compelling interest" to support a decision that "substantially burdens" religious exercise.

A broader version of the law was struck down by the Supreme Court in 1997 as unconstitutional because it purported to specify how the First Amendment should be applied to state and local laws. The current version essentially attempts to do the same thing and should be similarly struck down.

A federal judge in California ruled in June that the revised law is unconstitutional because it would invalidate many land use decisions "despite being legitimately motivated and generic in effect." U.S. District Judge Samuel P. King rejected that argument in the Maui case this week and upheld the law's constitutionality, saying it "is not federal zoning of county land." The conflicting decisions are likely to be reviewed together by the 9th U.S. Circuit Court of Appeals.

The Becket Fund for Religious Freedom, a Washington, D.C., law firm, is providing representation for both the Maui Church and the church in the California case. The dispute about the denial of a church permit by the city of Lake Elsinore, Calif., is more typical of the 50-plus lawsuits citing the federal law.

In most of those cases, local governments have denied churches' applications to move into commercial buildings because of lost sales-tax revenue. As one local official remarked to the Baltimore Sun about a similar conflict in that city, "They use city services, they pay no city taxes. In return for that, we get what?"

A church can argue that a permit denial based on its immunity from taxes -- at the heart of most of theses cases but not the Maui case -- represents religious discrimination in violation of the First Amendment. If that argument fails, churches should not try to broaden religious freedoms beyond the intentions of the Founding Fathers.


Extensive testing
needed for mad cow


The U.S. Department of Agriculture has issued stricter rules for preventing mad cow disease.

WITH mad cow disease out of the barn and possibly into the food supply -- though not in Hawaii, according to the latest reports -- the federal government's effort to protect consumers with new rules for slaughter and tests may still need reinforcement.

Nevertheless, the restrictions are huge improvements over previous practices that merely surveyed the nation's beef for the disease rather than prevented tainted meat from entering the marketplace.

Confronted by tumbling prices and potentially long-term economic effects, the beef industry, which had vehemently opposed increased regulations, had little choice but to cut its losses and support the new measures. Similarly, the Bush administration -- mindful of the November elections and wanting to blunt criticism in view of its ties to the industry -- needed to take protective steps it previously rejected as unnecessary.

Whatever the motive, the new rules boost protections against the disease. Animals tested for bovine spongiform encephalopathy no longer will be passed into the food stream until results confirm they are safe to eat. If this had been the practice last week, the Washington state animal that tested positive in this country's first documented case of BSE would not have ended up in beef supplies.

Sick or "downer" cows -- those that cannot stand or walk, an indication of disease -- also will not be allowed for use as human food as they had been, but Agriculture Department officials have yet to decide what to do with such animals which number between 200,000 to 500,000 a year. If the cows are simply kept from consumers, but aren't tested, cases of the disease may go undetected.

Brain, spinal cord and nerve tissue from cows older than 30 months will be banned from food since these parts contain the protein that can pass on the disease. However, because the protein has shown up in tissue from younger animals, too, the rule may have to include all such substances. In addition, the department is unsure if it will continue to allow these tissues to be processed for animal feed, which is the chief suspect in the Washington cow's infection.

The best method of assuring consumers that beef is clear of the disease would be to increase the number of animals tested. Only 20,000 of the estimated 400 million cattle slaughtered last year were examined and an increase to 38,000 this year remains insufficient.



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