Margaret Boyajian, Charles Counselman and Jean Dickinson v. Thomas Gatzunis, Building Inspector of the Town of Belmont

United States Court of Appeals
For the First Circuit
____________________
No. 99-1760
MARGARET BOYAJIAN, CHARLES COUNSELMAN AND
JEAN DICKINSON,
Plaintiffs, Appellants,
v.
THOMAS GATZUNIS, BUILDING INSPECTOR OF THE
TOWN OF BELMONT; JOHN W. GAHAN III; AS MEMBER
OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT;
WILLIAM D. CHIN, AS MEMBER OF THE ZONING BOARD OF
APPEALS OF THE TOWN OF BELMONT; THOMAS P. CALLAHAN, JR.,
AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE
TOWN OF BELMONT; CARLO TAGARIELLO, AS MEMBER OF THE
ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT;
ANTHONY LECCESE, AS MEMBER OF THE ZONING BOARD
OF APPEALS OF THE TOWN OF BELMONT; JAMES D. HARRINGTON,
AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE
TOWN OF BELMONT; CHARLES H. REARDON, AS MEMBER OF
THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT;
KARL TOBIASON, AS MEMBER OF THE ZONING BOARD OF
APPEALS OF THE TOWN OF BELMONT; CORPORATION OF THE
PRESIDING BISHOP OF THE CHURCH OF LATTER DAY SAINTS;
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,

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and Boudin, Circuit Judge.
_____________________
G. Michael Peirce, with whom Mofenson & Nicoletti, Mark A. White,
R. Keith Partlow and O'Brien, Partlow & White, P.C. were on brief, for
appellants.
Paul Killeen, with whom Edward J. Naughton, Daniel K. Hampton and
Holland & Knight LLP were on brief, for appellee Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints.
David C. Hawkins and Morrissey & Hawkins for appellee Town of
Belmont.
Thomas F. Reilly, Attorney General of Massachusetts and LaDonna
J. Hatton, Assistant Attorney General, on brief for Commonwealth of
Massachusetts, amicus curiae.
James O. Fleckner, Mark A. Michelson, P.C. and Choate, Hall &
Stewart on brief for American Jewish Congress, amicus curiae.
Wilson D. Rogers, Jr., Law Offices of Wilson D. Rogers, Jr., P.C.,
Frederic J. Torphy, James F. Cosgrove, Cosgrove, O'Connell & Blatt John
J. Egan, Egan, Flanagan & Cohen, P.C. and Gerald D'Avolio on brief for
the Roman Catholic Archbishop of Boston, the Roman Catholic Bishop of
Fall River, the Roman Catholic Bishop of Worcester, the Roman Catholic
Bishop of Springfield and the Massachusetts Catholic Conference, amici
curiae.
Gerald J. Caruso, Ferriter Scobbo Caruso & Rodophele PC, Devra G.
Bailin and Urbelis, Fieldsteel & Bailin LLP on brief for American
Baptist Churches of Massachusetts, American Baptist Churches in the
USA, Baptist General Conference, Baptist Joint Committee, Evangelical
Covenant Church, Evangelical Lutheran Church in America, General
Conference of Seventh-Day Adventists, General Counsel on Finance and
Administration of the United Methodist Church, Presbyterian Church
(U.S.A.), Reorganized Church of Jesus Christ of Latter Day Saints,
United House of Prayer for all People of the Church on the Rock of the
Apostolic Faith, Worldwide Church of God and the First Church of
Christ, Scientist, amici curiae.
____________________
May 2, 2000
____________________

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COFFIN, Senior Circuit Judge. This case involves a constitutional
challenge under the Establishment Clause of the First Amendment to a
state law and a town ordinance that prohibit municipal authorities from
excluding religious uses of property from any zoning area. It is
brought by a group of residents of Belmont, Massachusetts, against
Belmont officials and the Church of Jesus Christ of Latter-Day Saints,
challenging the construction of a large temple on the edge of a
residential district in the town. The district court upheld both
provisions of law, granting summary judgment for defendants and
allowing construction to proceed. We affirm.
I. Background
The essential facts of this case are undisputed and were submitted
to the district court with cross-motions for summary judgment. We draw
our summary primarily from the district court’s opinion, supplementing
with details from the decision of the Belmont Zoning Board of Appeals
and other pertinent record materials.
Defendant Corporation of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints (the "Church" or "LDS") acquired an
8.9-acre parcel of land in the Town of Belmont in 1979. It constructed
a meeting house on the property, which is located entirely in a single
residential district, and has conducted religious services there since
the mid-1980s.

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1 The original plan called for six spires exceeding the standard
permissible height limitation and a surface area of 94,100 square feet.
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The Church later decided to build a temple on the site. An LDS
temple is a large facility, of which there are fewer than 100
worldwide, that is used solely for the Church’s most sacred ceremonies.
Although Belmont’s zoning by-law permits religious uses as of right in
residential districts, see By-law § 3.3, the Church filed an
application for a special permit, as required, because it sought to
exceed the allowable height limit.
After a series of public hearings in which opponents raised a
variety of concerns, the Zoning Board of Appeals in 1997 approved the
special permit. The Church voluntarily made numerous design changes in
response to neighborhood concerns and obtained unanimous approval of
its new design from the Board before it began construction. The final
plans call for the temple to occupy some 69,000 square feet and to
include one 139-foot-tall spire and several smaller towers.1 The temple
will be set back from abutters by at least 165 feet, and in most
locations more than that, although plaintiffs are quick to point out
that the setback will consist largely of a parking lot for over two
hundred vehicles.
The Belmont by-law allowing religious uses by right in the
residential zone where the Church’s property is located is in
accordance with Mass. Gen. Laws ch. 40A, § 3, known as the "Dover

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Amendment." That law provides, in part, that a zoning regulation may
not restrict the use of land for religious or educational purposes when
the property is owned by the Commonwealth, a religious organization, or
a nonprofit educational corporation, except that "reasonable
regulations" are permitted concerning such characteristics as the bulk
and height of structures, open space, and parking.
Plaintiffs brought this suit challenging both Belmont’s by-law and
the Dover Amendment, claiming that they violate the Establishment
Clause of the First Amendment by favoring religious uses of property
without a secular purpose. The district court granted summary judgment
for the defendants in May 1999, finding that neither of the laws
constitutes an impermissible "establishment" of religion. Plaintiffs
then filed this timely appeal.
II. Discussion
The First Amendment to the United States Constitution states that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof," a proscription that has been
extended to the States by virtue of the Fourteenth Amendment. As the
Supreme Court long has recognized, "tension inevitably exists between
the Free Exercise and the Establishment Clauses," Committee for Pub.
Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973) (citing
Everson v. Board of Educ., 330 U.S. 1 (1947) and Walz v. Tax Comm’n of

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City of New York, 397 U.S. 664 (1970)), and the Court has "struggled to
find a neutral course between [them]," Walz, 397 U.S. at 668. While
the Free Exercise Clause admonishes the government against impinging on
the religious beliefs and expression of its citizens, the Establishment
Clause cautions that the government may not adopt the cause of religion
as its own. The Seventh Circuit has noted the challenge of reconciling
the two Religion Clauses:
The juxtaposition of the two clauses, and the internal
tension they create, makes total separation between religion
and government impossible. Lynch [v. Donnelly, 465 U.S.
668, 673 (1984)]; Lemon [v. Kurtzman, 403 U.S. 602, 614
(1971)]. Indeed, "[i]t has never been thought either
possible or desirable to enforce a regime of total
separation" between religion and government. [Committee for
Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760
(1973).] Thus the Court has recognized that the First
Amendment "affirmatively mandates accommodation," Lynch, 465
U.S. at 673, and "that the government may (and sometimes
must) accommodate religious practices and that it may do so
without violating the Establishment Clause." Hobbie v.
Unemployment Appeals Comm. of Florida, 480 U.S. 136, 144-45
(1987) (footnote omitted).
Cohen v. City of Des Plaines, 8 F.3d 484, 491 (7th Cir. 1993); see
Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987) (quoting Hobbie,
480 U.S. at 144-45); Zorach v. Clauson, 343 U.S. 306, 312 (1952) ("The
First Amendment . . . does not say that in every and all respects there
shall be a separation of Church and State."). Our task in navigating
the course between the opposing mandates of the Religion Clauses is
thus to strike that appropriate balance referred to by the Court as a

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"benevolent neutrality," Walz, 397 U.S. at 669; see also Amos, 483 U.S.
at 334.
As a practical framework for analysis in cases such as this, the
Supreme Court has adopted the three-part test articulated in Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971), which states that a law does not
violate the Establishment Clause if (1) it has a secular legislative
purpose, (2) its principal or primary effect neither advances nor
inhibits religion, and (3) the statute does not foster excessive
government entanglement with religion. See, e.g., Amos, 483 U.S. at
335-39; Rojas v. Fitch, 127 F.3d 184, 187 (lst Cir. 1997). The parties
generally agree that the third requirement is satisfied in this case,
so we will focus, as the parties have done, on the purpose and effects
inquiries. Because the state statute (the Dover Amendment) effectively
requires municipalities to enact by-laws like that adopted by Belmont,
our conclusion that the Dover Amendment is constitutionally permissible
largely resolves the lawfulness of the ordinance as well. We therefore
discuss the ordinance only briefly in section B, infra.
A. The Dover Amendment
Section 3 of Chapter 40A of the Massachusetts General Laws limits
the zoning regulations that can be imposed on certain types of land
uses, including agriculture, religious use of property owned by either
the Commonwealth or a religious group, nonprofit educational uses,
child care facilities, access for physically handicapped persons to

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2 Other paragraphs of section 3 detail similar limitations on the zoning
of other types of uses. The first paragraph, for example, bars
unreasonable regulation of the use of land "for the primary purpose of
agriculture, horticulture, floriculture, or viticulture." The third
paragraph prohibits local laws limiting the use of land or structures
for child care facilities, except for the same types of "reasonable
regulations" permissible with respect to religious and educational
uses. Also included in section 3 is a provision protecting congregate
homes for the disabled from discriminatory health and safety laws or
land-use requirements and a prohibition against unreasonable regulation
of solar energy systems. See Mass. Gen. Laws ch. 40A, § 3.
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private property, solar energy systems, and antennas for federally
licensed amateur radio operators. The zoning of religious and
educational uses is addressed in the second paragraph of the section
and reads, in pertinent part, as follows:
No zoning ordinance or by-law shall . . . prohibit,
regulate or restrict the use of land or structures for
religious purposes or for educational purposes on land owned
or leased by the commonwealth or any of its agencies,
subdivisions or bodies politic or by a religious sect or
denomination, or by a nonprofit educational corporation;
provided, however, that such land or structures may be
subject to reasonable regulations concerning the bulk and
height of structures and determining yard sizes, lot area,
setbacks, open space, parking and building coverage
requirements.
Mass. Gen. Laws ch. 40A, § 3.2 This provision is commonly known as the
Dover Amendment because its religion-focused component was enacted in
1950 in response to a zoning by-law passed by the town of Dover,
Massachusetts, prohibiting religious schools within that town’s
residential neighborhoods. See Trustees of Tufts College v. City of
Medford, 415 Mass. 753, 757-58, 616 N.E.2d 433, 437-38 (1993); Attorney
General v. Dover, 327 Mass. 601, 603-04 (1951); The Bible Speaks v.

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3 In 1950, the Massachusetts Legislature inserted the following language
into Mass. Gen. Laws ch. 40, § 25, a predecessor of the current ch.
40A, § 3:
No by-law or ordinance which prohibits or limits the use of
land for any church or other religious purpose or which
prohibits or limits the use of land for any religious,
sectarian or denominational educational purpose shall be
valid.
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Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 28, 391 N.E.2d 279, 284
(1979).3 The protections for other types of uses were added in later
years.
Plaintiffs maintain that giving religious organizations the
advantage of preferred zoning status constitutes an impermissible
endorsement of religion, in violation of the Establishment Clause.
Under Lemon, our first step in evaluating the Dover Amendment’s
constitutionality is to ascertain whether it serves a "secular
legislative purpose." See Lemon, 403 U.S. at 612.
This does not mean that the law’s purpose must be unrelated
to religion – that would amount to a requirement "that the
government show a callous indifference to religious groups,"
Zorach v. Clauson, 343 U.S. 306, 314 (1952).
Amos, 483 U.S. at 335. We think the purpose of the Dover Amendment
fits easily within the established boundaries of "benevolent
neutrality," see id. at 334, in which religious exercise is supported
but not promoted.
There is no dispute that the law was enacted to prevent religious
discrimination of the sort embodied in the Dover by-law, which allowed

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secular educational institutions but barred sectarian ones in the
town’s residential areas. Indeed, the provision was originally titled
"An Act Prohibiting Discriminatory Zoning By-laws and Ordinances." See
Tufts College, 415 Mass. at 757, 616 N.E.2d at 437-38 (purpose of the
Amendment was "to strike a balance between preventing local
discrimination against an educational [or religious] use . . . and
honoring legitimate municipal concerns that typically find expression
in local zoning laws"). Prohibition of religious discrimination is
unquestionably an appropriate, secular legislative purpose. See, e.g.,
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
532 (1993) ("Indeed, it was ‘historical instances of religious
persecution and intolerance that gave concern to those who drafted the
Free Exercise Clause.’"); cf. Walz, 397 U.S. at 673 (noting, in case
challenging property tax exemption for religious uses of property, that
"[g]overnments have not always been tolerant of religious activity" and
that "[g]rants of exemption historically reflect the concern of authors
of constitutions and statutes as to the latent dangers inherent in the
imposition of property taxes").
Appellants do not dispute the legitimacy of protecting religious
entities from discrimination, but they argue that the Dover Amendment
goes unconstitutionally beyond such a purpose to endorse and benefit
religious uses by removing "any type of real local zoning control of
religious sites" (emphasis in appellants’ brief). This argument

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brings us to the second Lemon prong, which examines whether,
irrespective of the government’s actual purpose, the practice under
review has the "principal or primary effect" of endorsing or
disapproving religion, Wallace v. Jaffree, 472 U.S. 38, 55 (1985)
(quoting Lemon, 403 U.S. at 612). Appellants maintain that the statute
provides such a substantial advantage to religious institutions that,
in effect, it constitutes an advancement of religion in violation of
the Establishment Clause.
We note as an initial matter that a law that simply protects
religious organizations from unfair treatment certainly cannot be
impermissible as an unconstitutional endorsement of religious activity.
See generally Wisconsin v. Yoder, 406 U.S. 205, 220-21 (1972) (The
Establishment Clause "cannot be allowed to prevent any exception" to
laws of general applicability which fosters the free exercise of
religion.). Yet, it is possible for government to extend itself so far
in preventing unfairness that it crosses the line from acceptable
accommodation to impermissible favoritism. See Amos, 483 U.S. at 334-
35 ("At some point, accommodation may devolve into `an unlawful
fostering of religion . . . .’") (quoting Hobbie, 480 U.S. at 145));
Yoder, 406 U.S. at 220-21.
Although the precise location of that threshold can be difficult
to detect, we are confident that it has not been reached here.
Appellants’ depiction of the statute as an impermissible legal hammer

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4 We recognize that facially neutral restrictions imposed under the
proviso may be subject to challenge as "unreasonable" if they
effectively would nullify a religious or other permitted use. See
Trustees of Tufts College v. City of Medford, 415 Mass. 753, 757-58 &
n.6, 616 N.E.2d 433, 437-38 & n.6 (1993). The Massachusetts Supreme
Judicial Court has stated that the question of reasonableness will
depend on the particular facts of each case, see 415 Mass. at 759, 616
N.E.3d at 438, with the burden on the institution to "prov[e] that the
local requirements are unreasonable as applied to its proposed
project," 415 Mass. at 759, 616 N.E.2d at 439.
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wielded in favor of religion both grossly exaggerates the reach of the
statute and understates the recognition that religion may be given
consistent with the Establishment Clause. As for the statute’s scope,
it does not exempt religious property uses from substantial standard
zoning requirements that are designed to ensure compatible uses of
land. As earlier noted, the statute explicitly states in a proviso
that limitations imposed on other property owners concerning such
specific features as the bulk and height of structures, lot area,
setbacks and required parking also may be imposed on religious
organizations. See ch. 40A, § 3. Thus, a religious institution, no
less than any other group, must comply with reasonable regulations
designed to preserve a comfortable, desirable community. See Tufts
College, 415 Mass. at 760, 616 N.E.2d at 439 ("[T]he Dover Amendment is
intended to encourage `a degree of accommodation between the protected
use . . . and matters of critical municipal concern . . . .’").4
As for the statute’s assertedly improper focus on religion,
plaintiffs err in two respects: the statute does not benefit only

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religious uses and, even if it did, such unique treatment can withstand
constitutional scrutiny.
We look first at the statute’s coverage. While the original
Dover Amendment was directed solely at religious uses of property, the
provision now includes a variety of uses linked together by the
legislature’s apparent judgment that these uses, though important to
all communities, would be at risk of exclusion from certain zoning
areas because of local prejudice unrelated to their compatibility with
the essential nature of the existing community. Our task is to consider
the validity of the statute before us, not the one enacted fifty years
ago. See generally Walz, 397 U.S. at 688 n.8 ("The only governmental
purposes germane to the present inquiry . . . are those that now
exist.").
It has long been accepted that religious entities may be the
beneficiaries of laws that, for secular reasons, provide benefits to a
variety of groups. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 10-
13 (1989) (plurality opinion); Rojas, 127 F.3d at 188-89. Among the
most prominent examples are the exemption from property taxes upheld by
the Supreme Court in Walz, 397 U.S. at 664, and the tax deduction for
the expenses of religious education allowed in Mueller v. Allen, 463
U.S. 388 (1983). In his concurrence in Walz, Justice Brennan observed
that New York included churches within the exempted class "not because
it champions religion per se but because it values religion among a

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variety of private, nonprofit enterprises that contribute to the
diversity of the Nation." Walz, 397 U.S. at 693.
We think an equivalent description applies to the state’s judgment
here. In protecting religious, educational, agricultural and the other
listed uses of property from exclusion -- whether resulting from
discrimination or simply from a general aversion to change in the
neighborhood -- Massachusetts evidences "an affirmative policy that
considers these groups as beneficial and stabilizing influences in
community life," wherever they are located, see id. at 673. The
Supreme Court has time and again made it clear that to include religion
in such a category is not to advance religion in contravention of the
Establishment Clause. The collection of favored uses in the Dover
Amendment is amply diverse in the context of zoning to support such a
determination. See Texas Monthly, 489 U.S. at 15 ("How expansive the
class of exempt organizations or activities must be to withstand
constitutional assault depends upon the State’s secular aim in granting
a tax exemption.").
Turning to our second point regarding the statute’s focus on
religion, we note that even a special status granted exclusively to
religious organizations is not always impermissible. This conclusion
is inevitably drawn from our analysis of three of the Supreme Court’s
more recent Establishment Clause cases. All address benefits that were
granted only to religious groups or solely on the basis of religion.

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One upholds the benefit granted, while the other two invalidate the
statutes at issue. Their holdings are instructive, for we see this
case as governed by the former and easily distinguishable from the
latter.
In Amos, the Supreme Court upheld section 702 of the Civil Rights
Act of 1964, which exempted religious organizations from Title VII’s
prohibition against discrimination in employment on the basis of
religion. See 483 U.S. at 327. Noting the Court’s longstanding
recognition that "`government may (and sometimes must) accommodate
religious practices and that it may do so without violating the
Establishment Clause,’" id. at 334 (quoting Hobbie, 480 U.S. at 144-
45), the Court endorsed state efforts "to alleviate significant
governmental interference with the ability of religious organizations
to define and carry out their religious missions," id. at 335. The
Court declined to invalidate the exemption on the basis that it singled
out religious groups for a benefit, stating that where "government acts
with the proper purpose of lifting a regulation that burdens the
exercise of religion, we see no reason to require that the exemption
comes packaged with benefits to secular entities." Id. at 338.
Massachusetts’ effort to eliminate local zoning discrimination is
fully in line with the Court’s approval of government actions aimed at
lifting burdens from the exercise of religion. Not only was the Dover
Amendment at its origin a defensible response to an actual incident of

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5 Indeed, Professor Laycock notes that churches are now facing more
difficulty in the land use context than in the past. See "State
RFRAs," 32 U.C. Davis L. Rev. at 764.
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discrimination, but protections against land use bias continue to be
supportable fifty years later. Two recent law review articles
canvassing discrimination against religion in the land use context
report numerous instances of zoning actions that reflect local
sentiments ranging from outright hostility to indifference to the needs
of religious organizations, with minority religions particularly hard
hit. See Douglas Laycock, "State RFRAs [Religious Freedom Restoration
Acts] and Land Use Regulation," 32 U.C. Davis L. Rev. 755, 771, 778-80
(1999) [hereinafter "State RFRAs"]5; Von G. Keetch & Matthew K.
Richards, "The Need for Legislation to Enshrine Free Exercise in the
Land Use Context," 32 U.C. Davis L. Rev. 725, 729-30 (1999).
Of particular note is the phenomenon of churches being unwanted
either in residential areas – because of increased traffic or noise, or
impact on aesthetics – or in business zones – because tax-exempt
churches dampen the vibrancy of commercial developments. See "State
RFRAs," 32 U.C. Davis L. Rev. at 761-62, 774-75; see also, e.g.,
Christian Gospel Church v. San Francisco, 896 F.2d 1221, 1224 (9th Cir.
1990) (upholding denial of permit for church to hold worship services
in residential neighborhood, noting that zoning "protects the zones’
inhabitants from problems of traffic, noise and litter") (citation
omitted); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464,

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467 ( 8th Cir. 1991) (quoting city council resolution excluding churches
from the town’s central business district because "no business or
retail contribution or activity is generated"). Certainly in the face
of such evidence, the state’s decision to give religion an assist in
the local land-use planning process is consistent with the Supreme
Court’s holding in Amos that legislation isolating religious groups for
special treatment is permissible when done for the "proper purpose" of
alleviating a burden on the exercise of religion. See Amos, 483 U.S.
at 337-38.
Neither of the Court’s two other cases, both of which struck down
benefits given exclusively for religious reasons, points to a contrary
result in this case. In Estate of Thornton v. Caldor, 472 U.S. 703
(1985), the Court invalidated a Connecticut statute guaranteeing
employees the right to take their chosen Sabbath day off from work.
The Court noted that the "absolute and unqualified right" given to
Sabbath observers required employers to conform their business
practices to an employee’s religious practices without any
"consideration as to whether the employer has made reasonable
accommodation proposals," see id. at 709-10, conveying a message of
"endorsement of a particular religious belief, to the detriment of
those who do not share it," id. at 711 (O’Connor, J., concurring).
As we have observed, the Dover Amendment does not give religious
organizations an "absolute and unqualified right" to build whatever

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6 The statute exempted "`[p]eriodicals that are published or distributed
by a religious faith and that consist wholly of writings promulgating
the teaching of the faith and books that consist wholly of writings
sacred to a religious faith.’" Texas Monthly, 489 U.S. at 5.
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structures they desire in residential or other zones. The protection
given religious uses is moderated by the community’s countervailing
interest in minimizing adverse impacts to communities, which is
reflected in the requirement that religious uses conform to the
standard physical limitations imposed on all buildings located in that
zone. Moreover, in a further distinction from the Connecticut statute,
the Dover Amendment does not protect one type of religious activity,
but "extends . . . to all religious beliefs and practices," Thornton,
472 U.S. at 712 (O’Connor, J., concurring). We think it clear,
therefore, that "an objective observer would perceive it as an anti-
discrimination law rather than an endorsement of religion or a
particular religious practice." Id.
Finally, in Texas Monthly, 489 U.S. at 1, five justices in two
separate opinions struck down a Texas statute exempting religious
periodicals, and no other publications, from state sales tax.6 In the
view of this combined majority of the court, the statute failed for
lack of a secular objective. See id. at 14-15; 28. In his concurring
opinion joined by Justice O’Connor, Justice Blackmun observed that "[a]
statutory preference for the dissemination of religious ideas offends
our most basic understanding of what the Establishment Clause is all

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about and hence is constitutionally intolerable." Id. at 28. Here,
by contrast, the statute both has an express secular purpose and it
embraces a variety of land uses likely to encounter similar local
opposition. As such, it does not suffer from the Texas Monthly
constitutional flaws.
In our view, the favorable attitude toward religion reflected in
the Dover Amendment does not constitute a fostering of, or favoritism
toward, religion over non-religion, but represents a secular judgment
that religious institutions, by their nature, are compatible with every
other type of land use and thus will not detract from the quality of
life in any neighborhood.
An impressive body of case law and scholarly texts and articles
supports this conclusion. See Walz, 397 U.S. at 689 (Brennan, J.,
concurring) ("[G]overnment grants exemptions to religious organizations
because they uniquely contribute to the pluralism of American society
by their religious activities."); Concerned Citizens of Carderock v.
Hubbard, 84 F. Supp.2d 668, 674-75 (D. Md. 2000) ("It is . . .
reasonable to presume that `churches . . . and other places of worship’
. . . belong [in the] category of uses [that are] wholly compatible
with single family home life." (citing E.C. Yokley, Zoning Law and
Practice § 35-14, at 35 (4th ed. 1980, Supp. 1999) ("`Since the advent
of zoning, churches have been held proper in residence districts.’")));
Kenneth H. Young, Anderson’s American Law of Zoning § 12.22 at 578 ( 4th

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7 The authors of this treatise note that there are "sound reasons" for
excluding churches from residential districts, including the traffic
associated with large numbers of people attending services and
meetings, see § 12.22 at 578. They ultimately conclude, however, that
"an ordinance which excludes [religious] uses from residential zones
does not further the public health, safety, morals, or general
welfare," id., observing:
Religious uses serve people best when they are accessible to
homes. Religious buildings provide convenient meeting
places for youth groups and civic associations. This need
can be filled best when the religious institution is
convenient to the residents who attend.
Id.
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ed. 1996) ("[R]eligious uses contribute to the general welfare of the
community, and can contribute most when located in residential
districts . . . .");7 Terry Rice, "Re-Evaluating the Balance Between
Zoning Regulations and Religious and Educational Uses," 8 Pace L. Rev.
1, 3 (1988) (The "dominant status" of churches and schools "is based on
a recognition that religious and educational institutions are, by their
very nature, beneficial to the public welfare."); cf. Texas Monthly,
489 U.S. at 12 (property tax exemption for churches "possessed the
legitimate secular purpose and effect of contributing to the
community’s moral and intellectual diversity").
It is of some note, as well, that proximity to their houses of
worship is for some groups a significant component of their religious
practice. Orthodox Jews, for example, believe they are prohibited by
the Torah, the Jewish Bible, from using automobiles on their Sabbath.
They therefore must live within walking distance of a synagogue. See,

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8 "It is well established . . . that `[t]he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause. Amos, 483 U.S.
at 334 (quoting Walz, 397 U.S. at 673). Some courts, however, have
held that it is unconstitutional to exclude churches from residential
areas. See 2 William W. Bassett, Religious Organizations and the Law
§ 10:15 (1997).
-21- -21-
e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 430 (2d Cir. 1995);
"State RFFAs," 32 U.C. Davis L. Rev. at 779-80. Although we do not
suggest that the Free Exercise Clause mandates the Dover Amendment,8 the
fact that the law may serve to avoid a possible barrier to
participation in communal worship highlights its effect as an
accommodation, rather than a promotion, of religion. See Wallace v.
Jaffree, 472 U.S. at 83 (O’Connor, J., concurring) ("[I]n determining
whether the statute conveys the message of endorsement of religion . .
. courts should assume that the `objective observer’ . . . is
acquainted with the Free Exercise Clause and the values it promotes.");
cf. Forest Hills Early Learning Ctr. v. Grace Baptist Church, 846 F.2d
260, 263 ( 4th Cir. 1988) (exempting religious child care centers from
state licensing requirements should be perceived as "‘an accommodation
of the exercise of religion rather than as a government endorsement of
religion’" (quoting Amos, 483 U.S. at 349 (O’Connor, J., concurring)).
In sum, the law does not take any of the paths forbidden by the
Establishment Clause. It does not endorse an individual religious
faith, it does not provide a direct financial subsidy to any religious
organization, it does not inject religious activity into a nonreligious

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-22- -22-
context, and it does not "place [the state’s] prestige, coercive
authority, or resources" behind religious faith in general, see Texas
Monthly, 489 U.S. at 9, other than to acknowledge its presence and
value -- as does the Constitution -- as "an element of our societal
mosaic," Walz, 397 U.S. at 693 (Brennan, J., concurring). The concerns
underlying the Establishment Clause arise not when religion is allowed
by government to exist or even flourish, but when government sets a
religious agenda or becomes actively involved in religious activity.
See Amos, 483 U.S. at 337. By protecting religious uses of land among
others that are favored by communities generally, but that may
encounter particular neighborhood disfavor, the Dover Amendment does
not itself advance religion but clears the way so that churches
themselves may do so. This is a permissible effect under Lemon. See
Amos, 483 U.S. at 337. ("A law is not unconstitutional simply because
it allows churches to advance religion, which is their very purpose.
For a law to have forbidden `effects’ under Lemon, it must be fair to
say that the government itself has advanced religion through its own
activities and influence." (emphasis in original)).
B. The Belmont By-law
As originally enacted in 1925, section 3 of Belmont’s zoning by-
law stated:
In a single residence district,

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-23- -23-
(a) No building or structure shall be erected, altered
or used for any other purpose than the following, including
customary incidental uses:
(1) Single-family detached dwelling;
(2) Clubhouse . . . ;
(3) Lodging or boarding house . . . ;
(4) Educational or religious use . . . .
The by-law was later amended to reflect the requirements of the Dover
Amendment, and the Schedule of Use Regulations that now constitutes §
3.3 permits in all zoning districts "Religious or educational use
exempted from prohibition by [the Dover Amendment]."
The Belmont by-law reflects the same benevolent attitude toward
religious uses of land that is implicit in the Dover Amendment and, as
discussed earlier, we think it a passive preference that is consistent
with constitutional principles. Among the by-law’s stated purposes are
"to encourage water supply, drainage, sewerage, schools, parks, open
space and other public requirements" and "to encourage the most
appropriate use of land throughout the Town." See Belmont Zoning By-
law § 1.2 (emphasis added). A legislative judgment that religious
activities are suitable in all neighborhoods, whether made on the state
or local level, does not by itself promote the practice of religion.
It simply recognizes the widely valued role of religious entities
within our communities by guaranteeing them a physical place.
Although the by-law lacks the state statute’s explicit anti-
discrimination purpose, we do not consider that additional rationale

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-24- -24-
necessary to validate a zoning scheme that gives wide range to
religious uses of property among other uses that are similarly
important to all communities. Moreover, because the current version of
the by-law specifically incorporates the Dover Amendment, we think it
fair to view it as implicitly incorporating its anti-discrimination
purpose.
In short, the Belmont by-law, like the Dover Amendment, is
sufficiently secular in purpose and effect to fall within
constitutional boundaries; it recognizes the value of religion without
impermissibly promoting its exercise.

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-25- -25-
III. Conclusion
We therefore conclude that both the state statute and the town by-
law pass constitutional scrutiny. Accordingly, we affirm the district
court’s grant of summary judgment for appellees.
Dissent follows.

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9While the Dover Amendment allows for "reasonable regulation" of certain
aspects of physical structures, there can be no dispute that the
statute requires that religious uses be permitted on each and every
parcel of land in every zoning district in the Commonwealth.
-26- -26-
TORRUELLA, Chief Judge (Dissenting). I am largely in
agreement with the majority as to the legal standards which--fuzzy as
they may be--apply to this case. However, my application of those
standards leads me to a different result than that reached by the
majority, and I must respectfully dissent.
My first principal disagreement with the majority is that I
do not understand the Dover Amendment to be an anti-discrimination
statute. Had the Commonwealth of Massachusetts intended to prohibit
discrimination against religion and religious land uses, it easily
could have enacted a law saying "No municipality may discriminate
against a proposed use of land on the basis of the religious nature of
the use or the religious beliefs or affiliation of the user." Such a
genuine anti-discrimination law would be plainly permissible under the
Establishment Clause. However, Massachusetts has instead prohibited
any zoning ordinance that "prohibits, regulates or restricts" religious
uses. The effect of this broader language goes far beyond prohibiting
religious intolerance, by exempting religious users from the ordinary
zoning process and by granting them a "free pass" with regard to
perhaps the most important issue in zoning regulation--location.9 In
my view, either the Dover Amendment responds to a purpose substantially

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-27- -27-
broader than merely preventing religious intolerance, or the statute is
substantially broader than its purpose. Either way, the statute should
not receive a "free pass" of its own as if it were merely an anti-
discrimination measure.
Second, the Dover Amendment does not embody the "benevolent
neutrality" deigned by the Supreme Court to be the proper balance
between the competing mandates of the Religion Clauses. A "neutral"
statute, in any ordinary sense of that word, would permit (and require)
religious uses and religious users to operate on an even playing field
with other uses and users, without special hindrances and without
special advantage. The Dover Amendment, in contrast, eschews
neutrality to place religion in an exalted position, exempt from the
ordinary land-use decision making process.
The majority justifies this special treatment by holding
that, here, religion is just one beneficiary of a law that provides
benefits to a variety of groups and that, even if the benefit were
restricted just to religion, the Dover Amendment would be justified as
an attempt to remove an obstacle to the free exercise of religion.
Although I would agree with either justification in principle, neither
is applicable here.
The majority is of course correct to recognize that religious
entities may be the beneficiaries of laws that, for secular reasons,
benefit a variety of groups. See Majority Op. at 11 (citing Walz v.

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-28- -28-
Tax Comm'n of City of New York, 397 U.S. 664 (1970), and Mueller v.
Allen, 463 U.S. 388 (1983)). The lesson that I draw from cases such as
Walz and Mueller is that, when religion is logically a member of some
cohesive group to which a benefit is granted for a secular purpose, the
Constitution does not demand the strange result of denying an otherwise
available benefit to a group solely because of the group's religious
nature. However, the uses protected by the various provisions of
Chapter 40A, § 3, of the Massachusetts General Laws do not comprise any
cohesive scheme comparable to that in Walz and Mueller. It is hard to
imagine what common secular purpose unites such apparently divergent
interests as religious land users, HAM radio operators, and residents
who choose to use solar power in their homes. The only common scheme
that the majority offers is that "these uses, though important to all
communities, would be at risk of exclusion from certain zoning areas
because of local prejudice unrelated to their compatibility with the
essential nature of the existing community." Majority Op. at 11. Even
assuming arguendo that these uses are in fact "important to all
communities" and that there is a real "risk of exclusion," I submit
that neither the appellees nor the majority have shown that such
exclusion would be "unrelated to compatibility with the essential
nature of the existing community." Other than outright discrimination,
which I heartedly agree could be properly prohibited (by an appropriate
anti-discrimination statute), the majority can only suggest vaguely

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-29- -29-
that religious uses might be excluded based on a "general aversion to
change in the neighborhood." See Majority Op. at 12. More telling,
however, are the motivations noted by the majority in another section
of its opinion--increased traffic and noise, aesthetic considerations,
and impact on commercial development. See id. at 14. These concerns,
of course, are directly related to the compatibility of a particular
use or user with the essential nature of the existing community. In
fact, far from evidencing some kind of religious intolerance (none of
which is alleged in this case, by the way), these are precisely the
kinds of secular concerns which form the basis for all zoning
regulation.
The Dover Amendment insulates religion, HAM radio operators,
solar energy users, et cetera, from these typical zoning concerns for
one simple reason, which the majority recognizes--the state considers
these uses "beneficial." Although the state may generally be free to
protect a use or activity solely on the basis that the state likes it,
the Establishment Clause prohibits such bare favoritism where the
beneficiary is religion.
Nor do I think that the Dover Amendment can be justified as
a governmental action aimed at lifting burdens on the free exercise of
religion. See Maj. Op. at 12-13 (relying on Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327 (1987)). The majority states broadly that religious

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-30- -30-
users face local sentiments "ranging from outright hostility to
indifference to the needs of religious organizations." Maj. Op. at 14.
Apart from religious intolerance, however, (which, again, I fully agree
can and should be prohibited by a proper anti-discrimination measure),
the majority points only to routine zoning considerations such as
concern with traffic, noise, aesthetics, and commercial stimulus as
presenting potential "burdens" on the free exercise of religion. It
may be true that religious users face these common obstacles in the
zoning context, but only to the extent that all land users face them.
Frankly, I cannot see that requiring religious users to participate in
the ordinary process by which local land-use decisions are made amounts
to such a burden on the exercise of religion as to justify a blanket
preference like the Dover Amendment. Cf. Amos, 483 U.S. at 336
(finding that uncertain threat of liability imposed a "significant
burden" on religious groups). Nor can I agree that the Dover Amendment
merely "allows religious groups to advance their own cause" rather than
constituting state promotion of religion. Through the Dover Amendment,
Massachusetts has enacted a bare preference for religious uses of land
and has placed the entire weight of the Commonwealth behind that
preference. "Benevolent neutrality" and appropriate accommodation of
religion are laudable and constitutional objectives, but the Dover
Amendment simply goes too far, in my opinion. See Amos, 483 U.S. at

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-31- -31-
334-35 ("At some point, accommodation may devolve into 'an unlawful
fostering of religion . . . .'").
Furthermore, just as I differ with the majority somewhat in
my reading of Walz, Mueller, and Amos, I also have difficulty accepting
the majority's distinction of other Supreme Court precedents. Unlike
the majority, I find the Supreme Court's decision in Estate of Thornton
v. Caldor, 472 U.S. 703 (1985), quite persuasive here. In the
fundamental zoning consideration of location, the Dover Amendment
provides religious users with precisely the kind of "absolute and
unqualified right" rejected in Thornton. Id. at 709. Just as in
Thornton, the Dover Amendment makes "no exception for special
circumstances, . . . no exception when honoring the dictates of
[religious users] would cause . . . substantial economic burdens or
when . . . compliance would require the imposition of significant
burdens on other[s, and] . . . no consideration as to whether the
[municipality] has made reasonable accommodation proposals." Id. at
709-10.
Likewise, I read the Supreme Court's fractured decision in
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), to support striking
the Dover Amendment. As Justice Brennan stressed on behalf of three
justices:
[W]hen government directs a subsidy exclusively
to religious organizations that is not required
by the Free Exercise Clause and that either

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-32- -32-
burdens nonbeneficiaries markedly or cannot
reasonably be seen as removing a significant
state-imposed deterrent to the free exercise of
religion, . . . it "provides unjustifiable awards
of assistance to religious organizations" and
cannot but "convey a message of endorsement" to
slighted members of the community.
Texas Monthly, 489 U.S. at 15. Justices Blackmun and O'Connor stated
that "[a] statutory preference for the dissemination of religious ideas
offends our most basic understanding of what the Establishment Clause
is all about," id. at 28 (Blackmun, J., concurring), and I believe the
same is true of a statutory preference for religious users in zoning
matters.
In summary, I cannot agree with the majority's acceptance of
the Dover Amendment as a tolerable accommodation of religion. I would
hold that the statute fails both the purpose and effects prongs of the
Lemon test, and I would declare the Dover Amendment unconstitutional.
I am slightly more troubled by the need to strike down the
Belmont bylaw. Unlike the majority, I am not entirely persuaded that
the Dover Amendment and the Belmont bylaw must stand or fall together.
After all, what troubles me about the Dover Amendment is largely the
fact that it removes religious users from the ordinary land-use
decision making process and thus places them in a position of
considerable advantage over nonreligious uses and users. The Belmont
bylaw would not necessarily raise such concerns, because a local zoning
bylaw merely represents the product of precisely that ordinary local

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-33- -33-
decision making process which, if done on a "level playing field,"
properly determines local land-use issues. However, because the
Belmont bylaw is so closely tied to the Dover Amendment, I would find
that it is incurably infected with the unconstitutionality of the state
statute and must be stricken. I do not suggest, however, that the
Establishment Clause would prohibit the Town of Belmont from enacting
a bylaw permitting religious uses in any or all of its zoning
districts, so long as such bylaw were enacted through the ordinary
land-use decision making procedures.

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