When the state draws a map around a man's conscience

Of all the liberties I thought most essential to a free people, the liberty of conscience stood first. Not because I placed religion above other concerns, but because I understood that the power which may tell a citizen where he may pray is the same power that may tell him whether he may pray. The distance between those two tyrannies is shorter than most legislators care to admit.

According to Fox News, the Supreme Court has agreed to hear a Kentucky Catholic church's challenge to local zoning rules that effectively prohibit a prayer grotto on church grounds. An attorney involved in the case warns that the outcome could affect "every single zoning law in America" under the Religious Land Use and Institutionalized Persons Act — the federal statute that is meant to shield religious communities from discriminatory land-use decisions. The stakes, framed that way, could hardly be larger.

I will confess at once that the engineering of modern zoning law — its variances, its conditional-use permits, its setback requirements — is territory I cannot map from my own knowledge. What I can map is the civic principle beneath it. A local government that uses the neutral machinery of land regulation to burden one form of assembly while permitting another has not remained neutral at all. Neutrality in the law is not merely procedural; it is substantive. A rule applied selectively acquires the color of a preference, and a preference in favor of secular assembly over religious assembly is precisely what the First Amendment was designed to forbid.

Yet I am equally wary of the opposite error, and I will name it plainly: a ruling so broad that no municipality may ever apply a zoning ordinance to religious property would hand religious institutions a privilege no other citizen enjoys. The rights of conscience protect the individual from the state; they do not confer a private sovereignty over public order. The court will, I trust, find the line between those two dangers — and I would have it draw that line close to the citizen and far from the bureaucrat. Where the evidence shows a municipality has used land-use rules as a pretext to exclude a disfavored community, the law should say so without hesitation. (This inference follows from the reported stakes of the case, not from any knowledge of the specific factual record.)

The deeper lesson here is one the Republic has never fully absorbed: that the rights secured in the First Amendment are not self-executing. They require, generation by generation, citizens willing to press the question to its conclusion in a court of law — and courts willing to answer it honestly. A church that builds a grotto is doing nothing more than arranging stones and intention in a corner of its own property. That a government agency found in that arrangement a cause for prohibition should trouble every citizen, religious or not, who values the principle that the state has no business inside the sanctuary of private conscience.

I will end where I always end: with the citizen. The Founders placed religious liberty first in the Bill of Rights not because faith matters more than speech, or assembly, or the press, but because they understood that a government which may silence the conscience will, in time, silence everything else. The court that hears this Kentucky case carries a weight it may not fully feel. I trust it feels it now.