District Court should be upheld in Kol Ami case, brief argues

Apr 19, 2002

A ruling by U.S. District Court Judge Clarence Newcomer that Abington Township's zoning laws violated Congregation Kol Ami's Equal Protection rights under the U.S. Constitution should be upheld, a panel of the Third U.S. Circuit Court of Appeals was told today. In a brief prepared by The Becket Fund for Religious Liberty (PDF format, 233K) and attorneys Jonathan Auerbach and Jerome Marcus of the firm Berger & Montague, the Congregation argued that "many of the Township's arguments fall so wide of the mark that one has to wonder whether the Township is appealing the same decision the Congregation is now defending."

In an order issued on July 11, 2001 Judge Newcomer declared the Township's 1996 zoning ordinance "unconstitutional as applied" to the Congregation. On July 20, he ordered the Township to consider Kol Ami's request for a special exception so that it could occupy and use as a synagogue a former chapel and convent for Catholic nuns. The Zoning Hearing Board then held a hearing and approved the application on August 15. In the meantime, however, Abington Township appealed Judge Newcomer's order, leaving the matter in limbo pending a decision by the Third Circuit. The Congregation's land development plan was unanimously approved by the Abington Board of Commissioners on April 11, 2002, but that decision, too, is held hostage to the Township's federal court appeal.

The brief filed today asserts that "on appeal, the Township distorts the opinion and order of the court beyond all recognition." The Township's brief repeatedly states that "the court decided the issue without factfinding," despite the fact that it contained several pages of undisputed material facts. The Township also argues that the District Court's reasoning would "invalidate thousands of zoning schemes," without citing a single example.

In short, the brief argues, the Abington zoning ordinance not only fails to meet the Supreme Court's "rational basis" test, it also fails the "strict scrutiny" test because it singles out religious uses for disfavored treatment without a compelling reason.

Resources & Documents