.



         INTRODUCTION: THE CHANGING QUESTIONS OF RELIGIOUS LIBERTY

The principles of religious freedom written into the First Amendment of the
United States Constitution initially served primarily to protect certain
sects of Christianity from a Congregational majority in the North and an
Episcopalian majority in the South. In his "Memorial and Remonstrance,"
James Madison stated that religious liberty was a "right towards men, [and]
a duty towards the Creator."[1] His monotheistic view of religion, evident
in this statement, reflected the religious environment of America's
eighteenth-century colonial states. In all likelihood, Madison might have
been surprised to find the promise of religious liberty he helped create
extending protection to the spiritual practices of non-Western religious
traditions.

Since the ratification of the Bill or Rights in 1791, the operating context
of these principles of religious liberty has changed dramatically. Far from
the homogeneous Protestant community of the eighteenth century,
contemporary American society is characterized by an extreme diversity of
religious traditions and cultures. Since the introduction of new
immigration laws in 1965 which allowed more Asian and Southeast Asians into
the country, questions about religious freedom have changed.

Today, fundamental guarantees of religious freedom are no longer invoked
against state laws that directly support one religion over another, as was
the case in the sixteenth and seventeenth centuries both in Europe and in
America. Rather, the protection of the free exercise right is typically
sought against superficially secular regulations that inadvertently
restrict religious practice. As the demographics of the religious community
change, so do the complaints of religious discrimination. Contemporary
threats are not as direct as government-sanctioned persecution suffered by
the Puritans in Europe or the Quakers and Mennonites in colonial states
with established Episcopalian churches. In the latter part of the twentieth
century, the more common type of free exercise dispute has been over
whether a Sikh serving in the armed services can be forced to abandon his
religious uniform, or whether a Seventh-day Adventist whose Sabbath falls
on a Saturday is qualified for unemployment compensation if she cannot
secure a job.[2] Both cases involve general secular laws that infringe on
the practice of a minority religion.

Given the increased variety of religious traditions in the United States
and the contemporary context in which the constitutional guarantees of
religious liberty operate, how well is this fundamental promise of
religious freedom preserved today? This question will be answered by
presenting a current free exercise dispute over local regulations in
Southern California which, according to some Vietnamese residents,
restricts the operation of their Buddhist "home temples." This current
conflict among local residents, Code Enforcement authorities, and members
of the Buddhist home temples does not offer a clear-cut case of religious
discrimination. Rather, the controversy highlights many of the questions
that arise in First Amendment disputes. The dispute in Orange County is
offered as a case example for studying two types of Free Exercise Clause
interpretations employed by the Supreme Court: the "balancing test" and the
"strict neutrality test."

The "balancing test" has been the traditional interpretation used by the
Court for deciding First Amendment questions of religious liberty since it
was first set out in Sherbert v. Verner in 1963.[3] That case involved a
Seventh-day Adventist who, because of her religion, would not take work on
Saturdays. The appellant claimed that the state's refusal to grant her
unemployment compensation on the grounds that she had not accepted
 "suitable work when offered," constituted a violation of her right to
worship freely. In its decision to grant her unemployment compensation, the
Court outlined a series of steps for both the state and the religious
tradition to follow.

First, the plaintiff had to establish sincerity of her belief. Next, she
had to show that the state law "put pressure on her to forego [her]
practice."[4] After illustrating that her religious practice was restricted
by the state action, the burden then shifted to the government to show a
"compelling state interest which justified the substantial infringement of
the appellant's First Amendment rights." Finally, the state had to show
that the law or regulation in question constituted the least restrictive
means of carrying out its purpose.

Since Sherbert v. Verner, many Supreme Court eases have upheld the use of a
balancing test in deciding free exercise questions. In Texas Monthly Inc.
v. Bullock, the Court stated, "The balancing test we set forth in United
States v. Lee must be performed on a ease-by-ease basis."[5] Also, in
Bullock, the majority held that "the Court has long recognized that balance
must be struck between the values of the [state interest and] religiously
based exemptions."[6] In Wisconsin v. Yoder, decided in 1972, the Court
adopted the same approach. In Yoder, a member of the Amish community sought
the protection of the Free Exercise Clause against a compulsory state
education law. The defendant claimed that it was the Amish's right to
educate their children at home instead of in public high schools, since
this exposure to mainstream society threatened the continuity of their
religious beliefs. After establishing that the Amish way of life "was not
merely a matter of personal preference, but one of deep religious
conviction," Chief Justice Burger weighed both sets of interests and came
to the conclusion that "a State's interest in universal education" must be
balanced "when it impinges on fundamental rights and interests."[7] The
Court concluded that the Amish were entitled to an exemption from
Wisconsin's compulsory education law.

It is true that in many cases where the "balancing test" has been employed,
including Sherbert and Yoder, the Court mandated an exception for religious
purposes from a general secular law. However, in a number of cases where
the "Sherbert analysis" was applied in form, the court rejected the
claimants' objection in fact.[8] Thus, the "balancing test" does not
guarantee that an exemption will be made from a general law on the grounds
of free exercise of religion. Examples of such cases included United States
v. Lee, [9] where an Amish worker was denied exemption from paying social
security tax, and Bob Jones University v. United States [10] where a
religious college was denied tax-exempt status due to its racial policies.
In these cases, the Sherbert test did not automatically guarantee claimants
an exemption for religious purposes.[11]

In contrast to the "balancing test," Justice Antonin Scalia's recent
"strict neutrality" test, announced in the 1990 case of Oregon v. Smith,
[12] is the current operative means for deciding First Amendment free
exercise questions. In that case, two members of the Native American Church
were fired from their jobs for ingesting peyote. They were denied
unemployment compensation due to their drug-related dismissal and
consequently sought protection under the Free Exercise Clause against
Oregon state law which made no religious exception for religious use of
hallucinogenic drugs.

In his majority opinion, Justice Scalia held that the state law was not in
violation of the Free Exercise Clause. His opinion states that a court
should examine the law in question rather than balancing the interests of
the state against the expressed beliefs and practices of a religious
tradition. If a state regulation is proven as "generally applicable," and
does not on its face discriminate against religion, then regardless of any
inadvertent side-effects it might have on a particular religious tradition,
such a law would not violate the Free Exercise Clause. Consequently,
Justice Scalia's interpretation of the First Amendment primarily considers
the facial intent of a regulation, rather than its actual effects. It lends
power to the legislature over the courts in deciding how much religious
liberty is acceptable.

Justice Scalia's rationale for relying on means other than a balancing test
was due to several different factors. He claimed that the "Sherbert test"
had been "developed in a context that lent itself to individualized
governmental assessment of the reasons for the relevant conduct."[13] This
context included questions of unemployment compensation. If the balancing
test were to apply to all criminal law, he argued, quoting from Reynolds v.
United States, it would "make the professed doctrines of religious belief
superior to the law of the land, and in effect permit every citizen to
become a law unto himself."[14]

Justice Scalia, in his opinion, went on to argue that the compelling
interest test would have to be used in every case, if it were to be
employed at all. The dangers of applying such a test across the board, he
claimed, are that many laws would not meet the test, and due to the
diversity of religious beliefs in the United States, "any society adopting
such a system would be courting anarchy."[15] He added that the only
examples of cases where exemptions to a general secular law have been made
involved a "hybrid situation" where other First Amendment claims were at
issue as well.[16] Whereas equality of treatment and freedom of speech are
"constitutional norms," he contended, freedom of religion constitutes a
"private right," and thus it would be a "constitutional anomaly" if any
religious group or set of individuals were allowed to ignore a generally
applicable law?

Finally, Scalia argued that the "compelling interest" test forces a judge
to make decisions about the "centrality" of a particular belief or practice
to a religious tradition, which, he claimed, is beyond the competence of
any judge.[18] Rather than run the risk of entangling state officials in
the business of deciding what is important for a religious doctrine,
Justice Scalia indicated that it was preferable for the Court to turn a
blind eye to the substance of the doctrine altogether.

The effects of the Smith decision are far-reaching. Most pressing are its
repercussions for the rights of minority religious traditions. Justice
Scalia stated that the precedents set in the Smith decision may adversely
effect minority religious groups. In a paragraph that has been hotly
contested by other justices on the Court, constitutional scholars, and
legislators, he claimed that such a result is the "unavoidable consequence
of democratic government [and] is preferable to a system in which each
conscience is a rule unto itself."[19] Justice Sandra Day O'Connor, in her
concurring decision, responded strongly that the intent of the First
Amendment is above all to protect just those minorities for whom political
protection in a majoritarian society is unrealistic.

Another question raised by this decision is what happens in a situation in
which the amount of inadvertent limitation caused by a generally applicable
law is so great that it casts into doubt the very meaning of the free
exercise of religion? The decision does not allow for the strong
possibility of "non-facial" discrimination. Indeed, parts of the Smith
decision show some considerable distance from the opinion of the Department
of Justice's official policy on religious liberty as outlined in its 1986
publication about the two religion clauses. In its book, Religious Liberty,
the Office of Legal Policy explicitly states that "the Free Exercise Clause
demands not only . . . State abstention from regulations of religious
belief, but also special protection for religion." It goes on to say that
laws which have a non-neutral face but a neutral intent and laws which show
neutral face and neutral intent, are both subject to a balancing interest
test.[20] Both of these points suggest arguments against Justice Scalia's
conclusions in the majority opinion of the Smith decision. Additional
criticism from scholars such as Michael McConnell,[21] Amy Adelson,[22]
Harry Tepker,[23] and numerous others highlight the controversy this
opinion has generated.

This essay adds to the list of critiques of the Smith decision. By
examining a local free exercise conflict and hypothetically applying it to
the two competing Supreme Court interpretations, it will be shown that the
beliefs, practices, and values of a religious tradition need to be taken
into account in free exercise cases. It will be argued that the "balancing
test," which considers the particularities of each dispute, not only
upholds the fundamental promise of religious liberty better than the
"strict neutrality" test but also facilitates compromise between the two
parties. The power that Smith gives to the legislature in deciding free
exercise debates does not encourage negotiation as a means of settlement.
Since conflicts between a minority religious practice and a state
regulation may vary considerably, the "balancing test" increases the
possibility of a settlement in many disputes as it precisely locates the
area of dispute and the nature of grievance felt by each side. Thus, rather
than speculating ff local zoning laws that restrict the Buddhist "home
temples" in Orange County are unconstitutional, the main goal of this essay
will be to show the limits of the "strict neutrality" test and the
potential of the "balancing test" as a means for deciding First Amendment
free exercise questions.

Part I will provide the historical context in which to view this particular
dispute. By tracing aspects of the development of the Buddhist tradition
from its early roots in India, this essay will illustrate more fully its
appearance in the Vietnamese communities in California. In Part II, the
current local ordinances will be outlined that restrict the practice of
these temples and the nature of some of the complaints from the
neighborhood about the activities of these temples will be examined. In
Parts III and IV, the two compelling free exercise tests already mentioned
will be applied to the case study of the Vietnamese home temples in Orange
County. By using the approach adopted by Justice Scalia in Oregon v. Smith
of asking whether or not a law is "generally applicable," it will be shown
that some of the regulations in Orange County pass this test and some of
them do not. More importantly, it will be demonstrated that the basis for
the Smith decision is not consistent with the promise of religious liberty
guaranteed in the Constitution and grounded in the principles of
voluntarism and separation.

By applying the four steps of the traditional "balancing test" to the
conflict in Orange County, this essay will illustrate that the process of
weighing the interest of the state against the unrestricted practice of a
religious tradition best serves the purpose of the Free Exercise Clause.
Despite the view that such a test gives too much discretionary power to the
judge, it will be argued that by considering the expressed practices of the
religious tradition in question, this test looks at the actual effects of a
law on a religious tradition. In this way, it upholds the fundamental
promise of religious liberty in the United States in a more adequate way
than the "strict-neutrality" test and also increases the likelihood of a
negotiated compromise.[24]

THE CASE: BUDDHIST HOME TEMPLES IN ORANGE COUNTY

In early December 1991, "Chua Lien Hoa," a Vietnamese Buddhist "home
temple" at 9561 Bixby St. in Garden Grove, California became the subject of
a First Amendment controversy involving the free exercise of religion.
"Chua Lien Hoa," like several other "home-temples" in Orange County is
residentially zoned and bears an exterior that looks much like a typical
one story ranch-style house. In this particular instance, however, the
zoning authority in the city of Garden Grove filed a civil suit on behalf
of several of its residents asking the California State Superior court to
issue a preliminary and permanent injunction against all activities at the
temple. This action was stimulated by the large number of complaint calls
to the Police Department and Code Enforcement Office about the noise,
traffic, and parking problems caused by the home temple over a period of
several months. "Chua Lien Hoa" defended itself against the dual charges of
nuisance and operating without a church permit on the grounds that the
city's requirement of a minimum of one acre of land for churches and
religious organizations was a violation of the Free Exercise Clause of the
U.S. Constitution. Ultimately, the judge did not issue a preliminary
injunction, but instead decided to place restrictions on its activities?
This case is but one example of a growing political and religious
controversy that threatens the free exercise rights of Buddist "home
temples" in several communities in Orange County, California.

THE PRACTICE OF VIETNAMESE BUDDHISM IN THE UNITED STATES

Since the fall of Saigon in 1975, over 72,000 Vietnamese refugees and
immigrants have settled in Orange County.[26] Approximately one-half of
these Vietnamese immigrants live in the Orange County municipalities of
Garden Grove, Westminster, and Santa Ana.[27] As a result of this
immigration, twenty to thirty "home temples" deriving from the Vietnamese
tradition of Buddhist Pagodas have been constructed in these three
communities. A majority of the temples claim to be of the Truc Lam sect of
Mahayana Buddhism. This school of Buddhism, founded in the fourteenth
century by a Vietnamese emperor, is said by some practitioners to combine
both the meditation technique common in Lin Chi practice with recitation of
the Buddha's name common in Tinh Do or Pure Land Buddhism. It combines both
the meditation practice common in Zen (Thien) with recitation of the
Buddha's name which is typical of Tinh Niem-That or Pure Land Buddhism.
Each of the practices of these two schools reflects different approaches to
the "striving toward enlightenment." The meditation of Thien was described
in Vietnam as the "self-help" power as opposed to the "other help" power
invoked in the constant repetition of the name of Amitabha Buddha?

This form of Buddhism is only one of a number of different sects in a
longstanding religious tradition that has been characterized by a flexible
and evolving set of religious practices. The adaptability of Buddhism can
be seen in its movement over several continents during the past twenty-five
centuries. Starting in India, Buddhism had expanded into Central Asia and
China by the first century A.D., to Korea by the fourth century, and to
Japan by the sixth century. According to the Handbook of Living Religions,
"Everywhere it has penetrated, Buddhism coexists with indigenous religious
traditions in complex ways."[29] Typically, rather than destroying the
customs or deities of a particular culture, Buddhism has enlisted them to
serve its purpose. Indeed, in some cases its adaptability has made it
difficult to recognize. Charles Hallisey and Frank Reynolds write in the
Encyclopedia of Religion, "The Buddhist tradition has been more accretive
in its doctrine and practice than the other missionary religions. It has
shown a tendency to adapt to local forms; as a result we can speak of a
transformation of Buddhism in various cultures. The extent of this
transformation can be seen in the difficulty that the first Western
observers had in recognizing that the religions they observed in Japan were
historically related to the religion found in Sri Lanka."[30]

As it has been in the United States for only a number of decades, a single
"type" of Americans yet to emerge. Looking at the Vietnamese Buddhist home
temples in Orange County, there is little to suggest that they are the last
word in Vietnamese American Buddhism. Presently, however, these religious
centers are the closest equivalent to a place of worship that the
Vietnamese religious community can find given its members' economic means
in the United States. Whatever form they eventually take in America, these
sanctuaries will illustrate the new form of an ancient tradition which is
classified as a "minority" only in certain parts of the world. Indeed, over
50 percent of the world's population live in areas where Buddhism has at
one time been the dominant religious force.[31]

THE HOME TEMPLE

Through the collective savings of several families or a large donation of a
single wealthy individual, members of the Vietnamese community have
purchased a number of residential homes for the purpose of giving them to
Buddhist monks within their community. Most of these temples are located in
ranch-style, one-story homes on approximately one-quarter to one-half an
acre of land. Typically, each one has a large prayer room with an altar and
worship space converted from a living or dining room. Many of them were
bought through fundraising activities that included a large number of
different family donors. In each instance, however, the buildings were
acquired by a member or members of the Vietnamese community with the intent
of turning them over to one or more Buddist monks.

All of the home temples in Garden Grove began as the residences of a monk.
Like the traditional Pagoda, the Vietnamese home temple in America is a
center for public religious practice and the home of religious officiates.
According to the Ven. Thich Quang Thanh, a monk who lives in a home temple
in Garden Grove, the Vietnamese living in the Los Angeles area still
identify the living place of a monk with a temple. This observation was
confirmed by other religious leaders among the Vietnamese community in
Garden Grove who stated that this particular religious center and others
like it began originally as a monk's home but that, "so many people were
attracted to [the temple], it became a temple."[32] Thus, the division
between the residence of a monk and a place of worship common to Christian
and Jewish clergy in the United States, has not been adopted by Vietnamese
Buddhists immigrants. For the Vietnamese Buddhist, the home and temple are
not immediately separable.[33]

The centrality of the temple for Vietnamese Buddhism was affirmed by Mr.
Nguyen Trong Nho, a Vietnamese trial lawyer who, before coming to the
United States, was a representative to the Vietnamese National Assembly. He
recently defended 9561 Bixby Street against the civil suit brought by the
city attorney for Garden Grove. Mr. Nho stated that these temples closely
resemble the historically traditional form of Buddhist temples in Vietnam.
He explained in an interview:

     The nature of Buddhism is to be close to the people. This means that
     in Vietnam there was a small temple in every village. When you talk
     about Buddhism, it means a small temple in the middle of a community
     where a monk is available as a kind of spiritual counselor all of the
     time. It is this way so that people can come over and talk to someone
     in the middle of the night if they have some kind of an emergency and
     a relative dies. The temple has to be small and close to the village -
     not big and glorious like many Christian churches here.[34]

Although other sources have indicated that the small intimate nature of the
home temple is not itself an important aspect of the traditional Vietnamese
Temple,[35] it is nonetheless undisputed that monks have always lived in
the temples regardless of their size or location.[36] Like the traditional
Pagoda, the Vietnamese "home temple" is simultaneously a center for public
religious practice and the home of a religious officiate.[37]

The fact that Buddhist monks traditionally have played the joint roles of
priest and monk illustrates the particular attachment of the monk to a
temple. In addition, according to a Buddhist nun from within the Vietnamese
religious community in America, one of the 217 precepts taken by ordained
monks and nuns stipulates that a monk cannot stay overnight at the home of
a lay person for more than three nights.[38] Another reason for the
tradition of the monk's permanent residence at a temple has to do with the
time-consuming nature of the practice itself. As one adherent explained,
"Buddhist monks must practice the teachings of the Buddha all day long.
They must get up and chant at 5:00, then they must meditate at 6:00. They
have breakfast at 7:00, a midday service at 12:00, and then another one at
6:00 p.m. Finally they meditate at 9:00 again and go to bed after this.
Since they must practice all day, they cannot be away from the temple."[39]

As refugees continue to arrive from Vietnam, the need for stability is
still large and many of the monks continue to serve the needs of a
community in crisis. This fact is acknowledged by social workers and mental
health counselors around the Los Angeles area. A Vietnamese
psychotherapist, Mr. Sang G. Do, in an interview with the Los Angeles
Times, said, "There has been a lot of emotional disturbance for Vietnamese
refugees who came to this country. In addition, at least 30 percent of the
recently arrived Vietnamese suffer from severe depression."[40] A young
monk at Tinh Xa Minh Dang Quang wrote about his temple, "We encourage
everyone to quit [alcohol] . . . . For many people who have lost their
jobs, we emphasize this to [help them recuperate.]"[41] In addition, many
of the other temples offer temporary housing for either homeless families
or recently arrived refugees.

These testimonies support the idea that, like a minister, rabbi, or
religious figure in other Western religious traditions, the monk acts as a
counselor who gives marriage counseling, offers advice to people looking
for jobs, and consoles individuals who have lost a family member. Indeed,
"whenever the people are in need, they come first to the monk," reported a
member of the Sangha from the Temple of Vietnam in Los Angeles. Thus, the
division between the residence of a monk and a place of worship has not
been adopted by Vietnamese Buddhists.

THE CONFLICT: NEIGHBORS, NOISE, AND THE BUDDHA'S BIRTHDAY

The question over the Buddhist home temples in Orange County involves two
sets of conflicting interests. First, there are the interests of the
practicing Vietnamese Buddhists, who claim that their practices are
protected by the Free Exercise Clause. Then, there are the concerns of the
older residents of Garden Grove, Westminster, and Santa Ana, who have lived
in the area for several years and feel that their neighborhood is being
disrupted by noise, parking congestion, and the use of residential homes
for religious services. The Code Enforcement Office of Garden Grove, whose
job it is to enforce zoning and planning regulations, claims only to have
enforced these ordinances on the home temples against which there have been
a substantial number of residential complaints.[42]

From the perspective of some established residents of Garden Grove, there
are many ways in which the twenty to thirty home temples in residential
areas of Orange County upset the regularity and peace of the neighborhood.
Interviews with the neighborhood residents, records of complaint calls, and
responses to questionnaires sent out by the zoning department about the
home temple on Bixby Street all indicate that a problem exists. Noise,
parking, and the home temple's incompatibility with the character of the
neighborhood are the greatest causes for concern according to several
Garden Grove residents who support zoning regulations that would suppress
the temple's activities.[43]

A primary source of irritation for the neighbors is parking congestion and
traffic caused by the temple. Evidence of such discontent came from seven
of the questionnaire respondents and three of the five residents
subsequently interviewed by this author.[44] These responses indicated that
parking was a fundamental concern for many, and that density requirements
set forth in planning regulations serve the interests of several Garden
Grove residents. Other complaints about the temples came from residents who
expressed annoyance at the decrease in property value, the increase in
unpleasant odors,[45] and the physical appearance of the home temple.

ZONING RULES

In order to address these complaints, residents and local authorities have
in several instances turned to local zoning laws. Zoning law had its
origins in the common law of nuisance meant to restrict the use of private
land that would have a heavy impact on others.[46] The purpose, extent, and
enforcement of zoning and planning rules vary from state to state. In
California, these regulations are designed to ensure the protection of
health, safety, morals, and the public welfare.[47] Unlike many other
states, the "Home Rule Clause" of the California State Constitution grants
extensive power to local zoning and planning boards to make and enforce
rules which will further these goals.[48]

In Orange County, there are three types of zoning and planning laws that
directly affect the Vietnamese home temples. These include the "conditional
use permit" process, parking and landscaping requirements, and the
requirement that each church or religious center be located on a minimum of
one acre of land. The Conditional Use Permit is one of several planning
requirements utilized by churches or other religious centers seeking to
locate in Garden Grove, Santa Ana, or Westminster. According to a brochure
issued by the City of Garden Grove Development Services Department, "A
Conditional Use is one which is permitted in the zone under certain
conditions which are based on reasons specific to the proposed location and
use." In other words, the conditional use permit is specially issued for
any land use that would otherwise be prohibited. A bar or other "commercial
use" that wanted to be located in a residential zone, for example, would
have to secure such a permit.

In the ease of all three of these cities, however, churches are treated
differently from other secular public land uses. For example, a church or
religious center, unlike other public uses, must attain a conditional use
permit regardless of the kind of zone in which it desires to locate itself.
This means that each one must be reviewed individually by the city planning
staff, the zoning administrator, and a hearing body to determine if it can
operate at a given location without harming its neighborhood or the
surrounding community. In Garden Grove, the grounds on which a permit is
issued are based upon the compatibility with all surrounding properties
including, but not limited to, a review of the following: noise, smoke,
dust, fumes, vibration, odors, all hazards or public needs, and
compatibility to surrounding land uses.[49] The Garden Grove Planning
Commission's system of individual site review replaced the old system in
which churches were excluded entirely from residential zones.[50] In
adopting this measure, Garden Grove joined Santa Ana and Westminster in
changing from a blanket exclusion policy, to a more site-specific approach.

The second type of zoning requirements for churches in Garden Grove,
Westminister, and Santa Ana include parking, traffic regulations, and
landscaping regulations. In Garden Grove, there are requirements for the
width and depth of the front yard, the distance of the main buildings from
the borders of the property, and the height of a wall to be constructed on
the property line. In Santa Ana, such regulations have included front yard
set-backs, landscape "buffers," and carport sizes.[51]

Despite small variations between cities, however, within each municipality,
landscaping and parking are applied roughly evenly to secular and
non-secular land uses alike. The parking regulations in all three
municipalities are based on the state standard of one space for every five
seats in a church or one place for every one hundred square feet of space
inside the building. For example, in Westminster, the parking standards are
the same for churches as they are for theaters and studios of all
kinds.[52] In Garden Grove, the ratio is one space per three seats and an
additional four spaces per one thousand square feet of space.

The final planning requirement, which exists only in Garden Grove and
applies only to a religious institution, is a law mandating that all
"churches and other religious centers" be located on a minimum of one acre
of land. Of all the zoning regulations, this one is the most arbitrary and
least directly related to promoting the health, safety, welfare and public
morals of the residents. Indeed, the Code Enforcement Office of Garden
 Grove had no explanation for its existence.[53]

In general, detailed planning requirements vary in each zone and city, but
the extensiveness of the regulation for both secular and nonsecular
purposes alike appear similar in all three cases.[54] All of these
requirements offer ways of regulating the quality of the neighborhood
environment. Given the current situation, with the exception of the one
legal temple under construction in Garden Grove, the worship facilities of
the Vietnamese community are in violation of these-laws. In Garden Grove
alone, this includes the ten to fifteen home temples currently servicing
the community.

Judging from the complaints of several of the neighbors, enforcement of the
zoning regulations affecting the home temples would serve the interest of
some parts of the community in Garden Grove. The question is, however, how
widespread are these interests, and how heavily do they weigh against the
importance of the temples for other residents whom they serve? The answer
to this question is most adequately given, it is submitted, by employing a
balancing test.

THE SMITH TEST

Applying the two different Free Exercise Clause tests enunciated in Smith
and Sherbert to the situation in Orange County will provide an opportunity
to judge the two tests themselves. Although a case specifically involving
zoning and the free exercise of religion has yet to be given full hearing
by the U.S. Supreme Court,[55] a hypothetical application of the
controversies surrounding the home temples will serve to evaluate the
respective merits of the Sherbert "balancing test" and the Smith "strict
neutrality" test.

How might the Court's current "strict neutrality" test apply to the
regulations restricting the home temples in Garden Grove, Santa Ana, and
Westminster? In addition to judging the one acre rule, landscaping
regulations, and parking or traffic requirements by the standards of this
test, the grounds on which the zoning authorities grant or deny conditional
use permits for religious centers and churches will also be examined.
Although not all of the regulations in Orange County place burdens of
unconstitutional weight on Vietnamese Buddhists, the extent to which they
impose any kind of restriction is almost always the result of an
inadvertent effect of such a rule. Thus, because the Smith test looks only
at the formal or superficial neutrality of a given rule and not at its
actual effect, it may not be the optimal method for determining which of
these regulations are constitutional. The Smith framework does not allow a
judge to discriminate between more cumbersome and less cumbersome
regulations.

THE ONE ACRE REQUIREMENT FOR RELIGIOUS CENTERS

When examined under the "strict neutrality" test, Garden Grove's planning
requirement for a one acre minimum of land for all proposed "churches and
religious centers" does not meet the standard of "generally applicability."
This regulation would in all probability fail the Smith test because it
singles out religious centers exclusively and does not apply equally to
secular and nonsecular institutions alike. As the one acre rule is indeed
the most burdensome regulation for the "home temple" practitioners, it
would seem that upon initial consideration, the Smith test does work
adequately. However, upon closer inspection, one can see that only a small
change in the wording from "church" to "public space" in the Garden Grove
regulation would be enough to enable the one acre rule to qualify as a law
of "general applicability." A small change in wording would have a large
effect on the religious practice itself. Indeed, this would indicate that
the Smith test rests less on respect for religious freedom than on the
wording of a particular regulation in question.

PARKING AND LANDSCAPING RULES

Landscaping requirements comprising part of the general zoning plans in
Garden Grove range from a forty foot depth requirement for the front yard
of "churches, sanctuaries, and main assembly buildings" to a regulation
requiring the construction of a "solid wall not less than six feet in
height" between any property line adjoining residential property.[56]
Although some of the requirements in these examples are site-specific,
still the majority of them apply not only to churches but to other public
buildings located in the same zone as well. Thus, owing to the generally
stated secular purpose and even application of these regulations, they
would all undoubtedly pass Scalia's "strict neutrality" test -- regardless
of their actual effect on the religious practice in question.

Although not as burdensome as the one acre rule, parking and landscaping
rules do have inadvertent effects on the Buddhist tradition as practiced in
the Orange County home temples. One such example occurred in Garden Grove
where statues of the Amitabha Buddha placed on the front lawn of a home
temple were ordered removed by the city council. Also, in Santa Ana one of
the city council's reasons for denying the necessary permit to a home
temple in 1988 was the proposed architectural plan which they claimed was
"characterized by the sweeping curves and structural dominance that
highlights temples and religious oracles of the Buddhist culture." By
prohibiting structures that identify the function of a home temple to
outsiders, like a statue or flag, the city limits casual access to these
religious sites.[57] The same might be true of churches that rely on the
visible display of a cross to alert outsiders of its activities.

All three of the cities in Orange County have parking regulations which are
roughly based on the state requirements of one parking space for every five
seats in a church, or, where seats are not applicable, then one place for
every one hundred square feet of space inside the building.[58] With some
variation, these requirements apply to public and semi-public
institutions.[59] Again, like landscaping rules, the small degree to which
these regulations are burdensome to the home temples is due entirely to
indirect effects.

Although a landscaping rule that requires a religious center to have lawn
sprinklers and a certain number of "landscape planters" is likely to be
less burdensome to a Buddhist home temple than a law requiring it to
purchase one acre of land, the formal or "strict neutrality" standard does
not distinguish between these two types of restrictions. Rather, the
"strict neutrality" test treats all laws with similar purposes in the same
way. The Smith test makes it more difficult for a judge or administrator to
discriminate between the actual effects of both these types of state
actions. The weight of these parking and landscaping restrictions may not
be substantial; however, their impact is best judged by an inquiry into
their actual effect.

THE CONDITIONAL USE PERMIT PROCESS

Like other zoning regulations, the conditional use permit process in Garden
Grove, Westminster, and Santa Ana has a direct bearing on the position or
legality of the home temples. In order to receive such a permit, each case
must be reviewed individually before the zoning authorities and a public
hearing body. Since the "strict neutrality" test would not look at the
effects of the permit process, the Smith test is not the most effective way
of dealing with a decision-making procedure which potentially limits the
free exercise rights of the home temple users in Garden Grove, Santa Ana,
and Westminster.

Because of the wide breadth of authority given to local bodies in zoning
questions by the "Home rule" clause of the California State Constitution,
one potential infringement on the free exercise rights of the home temples
is a lack of clear standards in the decisions to grant conditional use
permits.[60] Evidence of such arbitrariness can be seen in the widely
varying reasons for denying a permit. Although "incompatibility with all
surrounding properties" is the major factor for denying permits,[61] the
determinations of what does and what does not constitute "incompatibility"
is not consistent in Garden Grove, Santa Aria, and Westminster. In recent
cases, reasons cited for "incompatibility" range from physical
appearance,[62] to the presence of fumes, vibrations, and noise,[63] to
"adverse effects on the general plan.[64] This lack of clear standards only
increases the likelihood that certain religions might be unfairly
discriminated against.

Indeed, Laurie Reynold's discussion on the constitutionality of
exclusionary zoning states that in order to ensure principled
decision-making and notification to the religious applicant of the criteria
relevant to a permit decision, a local zoning board must set forward public
criteria for providing exceptional zoning for religious sites.[65] In
judging the conditional use permit process by the standard of the "strict
neutrality" test, one can see that a potential constitutional violation by
this procedure would not be noticed by Justice Scalia's standard. Only a
balancing test which looked at the actual effects of an arbitrary
regulation would be able to consider the possibility of a constitutional
violation by local zoning officials.

Although the burdens imposed on Vietnamese Buddhism by zoning regulations
may not necessarily reach unconstitutional proportions, still, any harm
that is incurred by such rules comes about from the inadvertent or side
effects of their implementation. The "strict neutrality" interpretation of
the First Amendment does not consider this inadvertent discrimination.
Since this is the major type of infringement in America's religiously
diverse society, an application of Scalia's interpretation to zoning
regulations in Orange County does not give adequate weight. to the free
exercise promise. As Justice Sandra Day O'Connor argues in her concurring
opinion in Smith, the First Amendment does not distinguish between laws
that are generally applicable and laws that target particular religious
practices. Thus, "few states would be so naive as to [allow] a law directly
prohibiting or burdening a religious practice as such."[66] In this case,
it would be unlikely to find a regulation explicitly stating that Buddhist
home temples could not be constructed in a certain neighborhood. However,
laws that make it financially impossible for them to build, or zoning
ordinances that instill requirements appropriate for a mainline Christian
church, are entirely conceivable.

An application of Justice Scalia's "strict neutrality" test to the Buddhist
home temple controversy in Orange County indicates the shortcomings of this
method of analysis for deciding free exercise conflicts. By considering
only the general applicability of a law in question, a judge using the
"strict neutrality" test could not allow the actual effects of a particular
state action on a religious practice to factor into his or her decision.
Such a method of decision-making, in sum, is less adequate than one which
allows the expression of religious beliefs and their felt effect to bear
weight in the ruling.

THE BALANCING TEST

The "balancing test" outlined in Sherbert v. Verner stands in sharp
contrast to the current standard of "strict neutrality" as a method of
First Amendment interpretation. It focuses more on the actual effects of a
state regulation on individual cases where religious liberty is in
question. In doing so, the "balancing test" risks entangling a judge in
questions of religious practice and doctrine. Nonetheless, the controversy
over the home temples in Orange County suggests that the "balancing test"
has virtues that outweigh its disadvantages. In Garden Grove, Westminster,
and Santa Ana, some state regulations which threaten the religious
practices of the Vietnamese Buddhist practitioners survive the "balancing
test." Even if only some of these restrictive regulations were to be judged
unconstitutional, still, the standard itself provides a more adequate way
of deciding free exercise questions. By looking at the beliefs and
practices of the religious tradition itself rather than exclusively
examining the formal neutrality of a regulation g outward appearance, the
"balancing test" supports the First Amendment's fundamental promise of
religious liberty for the practitioners of Vietnamese Buddhism at the home
temples.

As stated in the introduction, the four-step balancing process developed in
Sherbert v. Verner [67] is the basis for the "balancing test." The test is
made up of a series of questions. First, is there a sincere belief on the
part of the religious practitioner? Second, if this can be shown, does the
state action in question place a burden on his or her practice? Third, if
it does, can the state show a "compelling interest" necessitating its
application of the regulation in question? Finally, can the state prove
that the current regulation is the least restrictive way of carrying out
its compelling interest?

Before moving directly to the application of the Sherbert test to the case
study, it is worth noting that since this test has never been applied
directly to a First Amendment case involving zoning, the law in this area
is still undefined. Several legal theorists have posed their own criteria
for deciding such questions, however. Proposals offered by scholars such as
Mark Cordes and Nancy Reynolds in addition to authoritative legal-reference
texts like the Rathkopfs' The Law of Zoning and Planning, involve elements
of this basic "balancing test."[68] These theorists suggest that the best
way to decide issues of religious freedom limited by planning ordinances is
by examining the apparent purpose of the regulation in light of its actual
effect.

IS THE BELIEF SINCERELY HELD?

The first question of the "balancing test" is the inquiry about sincerity
of belief. The purpose of this question is to enable the court to judge the
"centrality" of the supposedly threatened practice or tenet within a
group's or individual's overall belief system. In the case of the home
temple controversy, how important are the home temples to the beliefs of
the Vietnamese practitioners individually and to their religious tradition?
According to the testimonies of members of the Vietnamese religious
community, although the tradition of small temples is not itself a
"fundamental" part of the practice of the Buddhist tradition, having the
temples serve as residences of the monastic community is a basic part of
 Vietnamese Buddhism.

Based on research in Southeast Asia, Professor Donald Swearer, author of
two works on modem Buddhism, Buddhism in Transition (1970) and Wat
Haripunjaya (1976) affirms the convention of a Buddhist center having monks
in residence. He proposes that, in part this practice reflects hundreds of
years of tradition in Southeast Asia. More importantly, however, Professor
Swearer suggests that the home temples may gain their sacred status because
they are the residences of well-respected members of the religious
community. Such practices led him to state that "The distinctions we make
in the West between monk and priest or home and temple are problematic when
applied to Buddhism."[69] The "balancing test" enables consideration of
both the beliefs and practices of a particular religious tradition to
contribute to a judge's decision.

IS A "STATE ACTION" BURDENSOME?

The second part of the balancing test which asks if there is a burden
placed on the practice of a particular tradition, provides the opportunity
to look at the direct and indirect effects of a certain state action or set
of requirements. The state action that most affects the home temples in
Garden Grove is the requirement that all "churches or religious centers" be
located on a minimum of one acre of land.[70] According to the "balancing
test," this regulation, as applied to the Vietnamese home temple located in
that community, violates the Free Exercise Clause. When a restriction such
as this has an ambiguous intent and inadvertently places restrictions on a
certain community, its effects are not considered by the "strict
neutrality" test.

In this case, a religious practitioner can show the court that a one acre
rule imposes a burden on the practice of Vietnamese Buddhism. By creating a
large economic obstacle, this regulation makes building the number of
religious centers required to support the needs of a community of over ten
thousand people a practical impossibility. Although other religious
traditions might be able to circumvent this financial burden by renting a
facility for temporary use or pooling funds for a single large
accommodation, such options are feasible for this particular community.
Rented religious facilities do not offer viable alternatives to the home
temples, owing to the particular social and economic circumstances as well
as the traditional religious beliefs of Vietnamese Buddhists in Orange
County.

This regulation places an economic burden on the Buddhist practice which is
more restrictive than the size requirement in itself. Chua Viet Nam, a
large and extremely visible building under construction in Garden Grove,
shows that there may not always be intrinsic religious importance in having
a small private temple. In addition, some of the monks living in a home
temple stated explicitly during the course of an interview that at such
time had they had sufficient funds, they would build a very large
temple.[71] Such testimony offers evidence that if they had more economic
means, many of the monks would be building large temples.[72]

Clearly, one of the most pressing problems incurred by a minimum land
requirement is an economic one. Since the Supreme Court has ruled that
"freedom of speech, freedom of the press, and freedom for religion are
available to all, not merely to those who can pay their own way,"[73] such
a burdensome financial constraint could be construed as a violation of the
First Amendment. According to the Garden Grove Redevelopment Authority in
City Hall, one acre of land bought for residential use costs a buyer
between $700,000 and $1 million.[74] Coming from a society where they have
been entirely dependent on other people for their livelihood, most of the
monks, who left Vietnam in the late 1970s and spent several years in the
refugee camps of Thailand and Malaysia, came to Orange County with little
independent source of income. The considerable cost of one acre of land in
Garden Grove makes it virtually impossible for new immigrants to construct
large temples. As can be seen from "Chua Viet Nam," the only large temple
legally under construction in Garden Grove, this endeavor is not
impossible. However, the present economic and social conditions of the
Vietnamese community combined with certain cultural and religious factors
make the one acre rule particularly burdensome for this religious group.

In addition to these economic factors, there are religious reasons that
members of the Buddhist community in Orange County are burdened by the one
acre rule. The possibility of renting other church or meeting facilities
offers a viable alternative to the purchase of one acre of land for many
Christian churches or Jewish temples for which a permanent worship site is
not a fundamental tenet of their faith. For the Vietnamese Buddhist
practice, however, rented facilities are not a possibility for religious
reasons. According to several of the monks interviewed, temples become
sanctuaries appropriate for worship and meditation only after they have
been consecrated by a religious officiate and personally inhabited by a
monk.[75]

In addition, the practice of bringing photographs of the deceased to the
shrine of a temple for memorial purposes gives a particular importance to
the ground on which they rest. Once the photograph has been placed in the
temple, moving it is believed to upset the spirits of the deceased.[76]
This practice re-fleets the influence of the Chinese cult of the ancestors
on Vietnamese Buddhist practice. The veneration of ancestral spirits was
displayed by bringing tablets bearing the names of deceased relatives to
the temple and placing them on the altar. According to Professor Donald
Swearer, the tradition of setting up photographs on the altars of home
temples is a direct continuation of the older practice. Thus, he claims,
upsetting the temple shrine or displacing the photographs would be
equivalent to disturbing a grave site in the West, at least to the degree
that the ancestral spirits are thought to be enshrined, be it in a tablet
or photograph.[77]

The importance of both the ground blessing ceremony in establishing the
legitimacy of a temple and the practice of bringing photographs of the dead
to the temple shrine mean that renting a worship hall for funeral services
or congregational gatherings is not appropriate for Vietnamese Buddhist
practice. Thus, a temporary worship space as an alternative envisaged by
the Code Enforcement Manager in Garden Grove is not viable.[78]

Requirements for religious centers in Garden Grove, Santa Ana, and
Westminster place a large burden on Buddhist temples not experienced by
other places of worship in other traditions. Although a knowledge of
Vietnamese Buddhism and the unique hardships incurred by practitioners of
this tradition does not guarantee them constitutional protection, such
information is still necessary in weighing the degree of imposition felt by
individual practitioners. The opportunity to give evidence about the
particular circumstances of a minority religious tradition is only
available in the second step in a balancing test. It would not be relevant
in a First Amendment interpretation which looked only at the formal
neutrality of the law in question.

IS THERE A COMPELLING STATE INTEREST AND IS THIS THE LEAST RESTRICTIVE
MEANS?

The third and fourth steps of the Sherbert balancing test would ask whether
there is a compelling state interest in the zoning regulations which limit
the home temples and whether such regulations constitute the least
restrictive means of achieving the state's objective? Both questions can be
answered only in terms of legal analysis. Without supplying a clear
definition of what constitutes such a compelling interest, the "balancing
test" enables the court to decide on the importance of a disputed state
regulation by measuring them against past precedent, constitutional
guarantees, and the general intent.

Of the one acre rule, parking and traffic requirements, and conditional use
permit process, which ones constitute compelling state interests? In this
particular case, it will be argued that several parking and traffic
requirements do constitute compelling state interests whereas the one acre
rule and requirements for a conditional use permit do not. Even if the
courts consistently decide in favor of the state over the religion as the
U.S. Supreme Court has done in most of the cases they have heard in the
last few years,[79] still, this weighing process means that what
 constitutes an infringement on religious liberty rests in part on the
state and in part on representatives of the religious tradition in
question. Thus, the "balancing" approach, unlike the strict neutrality"
approach, allows the expressed religious beliefs or practices to be
factored into the ultimate legal outcome.

The purpose of the police powers enforcing zoning ordinances in Garden
Grove, Westminster, and Santa Ana, is to promote the health, safety, morals
and public welfare. Also, in Garden Grove the ordinances seek to "guide,
control, and regulate future growth and development."[80] In Snow v. Garden
Grove, a California Court ruled that such powers "ensure maximum protection
of the several conflicting private interests with minimum detriments to the
community and to safeguard public heath, safety, comfort and the general
welfare."[81]

Looking at the criteria for awarding conditional use permits and the one
acre requirement, are all of the state interests they serve really
compelling? There is no explicit written explanation offered for a one acre
rule that applies only to churches. It was justified by the Garden Grove
Code Enforcement Officers as being meant to ensure the "quality and
consistency" of the neighborhood.[82] Likewise, the standards for the
conditional use permit are unspecific within these general goals, and the
state interest served is "compatibility" with all surrounding land uses.
Thus, the criteria for "compatibility" varies from function, to physical
appearance, to the location on a city block.

It is true that in several instances the courts have ruled against claims
of racial and economic discrimination in favor of upholding a
municipality's right to zone to preserve a peaceful residential sanctuary
for its citizens,[83] However, the right to a peaceful residential
neighborhood has its limits. If the state's interest in preventing
religious fraud was not compelling enough for the Supreme Court to deny a
religion-based exemption in Sherbert, it is difficult to see how the
state's interest in providing "compatible" housing would unquestionably
overrule any free exercise claim from Orange County residents practicing
their faith in their neighborhoods. (It is especially doubtful since a
Conditional Use Permit is required for every zone in the city.) Thus, by
this step of the balancing test, the Santa Ana Planning Commission's
decision to deny a conditional use permit to a Korean temple on the basis
that it would "disrupt the character and stability of the neighborhood,"
would not qualify as one which supported a compelling state interest.

However, the state's interest in protecting the neighborhood from nuisance
incurred by parking and safety violations does, in this case, qualify as a
compelling one. According to Mark Cordes, "mere inconvenience to neighbors
should not be enough to overcome the first amendment interest."[84] He does
not specifically define "inconvenience," and only by looking at past
decisions on the subject is it possible to gain an understanding of what
does and does not constitute such inconveniences. Paige Cunningham argues
that the courts have held that people must suffer some inconvenience in
order to protect First Amendment rights. She goes as far as to say that the
First Amendment right to the free exercise of religion is more important
than the right to enjoy property.[85] Thus, these past decisions and legal
interpretations indicate that not all neighborhood complaints qualify as
"compelling" state interests.

Still, having said this, some of the neighbors' complaints in Garden Grove
about the difficulties of parking and the increase of traffic in their
neighborhood along with certain fire safety violations incurred by the
temples could well qualify as "compelling" state interests.[86] The number
of complaints about blocked driveways and increased noise levels received
by the Code Enforcement Office after an annual Buddhist festival in 1999.
made it incumbent upon the state to take action in response.[87] Indeed, a
majority of the twenty questionnaires which the Garden Grove Code
Enforcement Office sent to the neighbors of the Bixby Street temple cited
complaints about parking and noise.[88] Considering the widespread nature
of this complaint, it would seem that this specific case constituted a
compelling state interest that, moreover, would not directly impede the
practice of Vietnamese Buddhism if visitors to the temple were required not
to obstruct other driveways or roadways.

Clearly, at some point the noise and disturbance of a temple or religious
center overcomes the right of members of the religious tradition to
practice freely. That point is uncertain with a balancing test -- varying
from situation to situation. This lack of clarity is viewed by Justice
Scalia as a disadvantage and is the major rationale for his new precedent.
In fact, contrary to Scalia's opinion, uncertainty is an advantage since it
promotes negotiation between parties and probable settlement directly
between the state officials and the religious practitioners without the
intervention of a judge.

The final question in the "balancing test" is whether or not the state
action is carried out in the least restrictive means possible. Again, this
inquiry can be answered only from within the legal realm. It is a difficult
question, since for every action there is potentially an infinite number of
ways to do it less restrictively for one interest that may have
inconvenient effects on another set of interests. In all likelihood the
courts would apply the test in a practical way, insisting only that states
choose the least restrictive means that are administratively as well as
theoretically available.

Although the "balancing test" is preferable to the "strict neutrality" test
in the Smith decision, it is not immune from problems. The danger of
entanglement and the arbitrariness in court decisions were the major
problems to which Justice Scalia sought to respond in Smith? In
consideration of these important critiques of the "balancing test" there
are, however, at least three responses to Justice Scalia's arguments.
First, it is not clear to what degree a judge is forced to decide on the
"centrality" of a particular claim or belief for the religion in question.
Other Supreme Court justices have argued that expert witnesses, not judges,
decide what is and what is not central to a religious tradition. In his
dissent in Smith, for example, Justice William J. Brennan wrote that the
Court does not have to rule on this question; rather, it is the religious
claimants themselves who decide. The Court is only responsible for deciding
whether or not they have shown a burden. He stated, "The question for the
courts, then, is not whether the Native American claimants understand their
own tradition, but rather, whether they have discharged their burden of
demonstrating, as the Amish did with respect to the compulsory school law
in Yoder, that the land-use decision poses a substantial and realistic
threat of undermining or frustrating their religious practices."[90]

In addition to this refutation of Scalia's entanglement, there is also a
question about the Court's particular commitment to minority religions in a
majoritarian society. Implicit in the Bill of Rights is the idea that the
court is responsible for protecting minority rights and might therefore be
better equipped than the legislature to oversee a decision about the
plausibility of the minority tradition's claims. Would an elected official
designing a law outlining the limits of free exercise be more likely to
give attention to the practices and traditions of a minority religious
tradition than a judge insulated from majoritarian political pressures? In
her partial concurrence with the majority decision in Smith, Justice
O'Connor wrote that "the First Amendment was enacted precisely to protect
the rights of those whose religious practices are not shared by the
majority and may be viewed with hostility. The principle of voluntarism on
which the Constitution's promise of religious liberty is partially grounded
supports the right of a minority religious practitioner to have his case
heard individually in Court rather than submitting him to the will of the
majority as reflected in any legislative decision."[91]

Finally, Justice Scalia's major argument against- the "balancing test"
overlooks the fact that this type of judicial review supports and increases
the opportunity for negotiated settlements. By making each party prioritize
among its grievances and forcing both parties to put forward their most
pressing interests first, the "balancing test" can locate the areas of
flexibility for members of a religious tradition and government
representatives. A rigid set of rules designating the specifics of a
relationship between the state and religion might be operable in a society
where the norms of religious practice were uniform and well-known. As this
is not the case, however, the "balancing test" affords state officials the
best way of closely examining the changing areas of conflict in the First
Amendment area. By allowing a court to isolate the areas of importance for
each party in separate instances, the "balancing test" increases the
chances for negotiated settlement on each occasion. Despite its potential
for arbitrariness, the "balancing test's" ability to promote compromise
makes it superior to the "strict neutrality" test for questions involving
zoning regulations and the free exercise of religion.

                                 CONCLUSION

As the demographics of the United States change, so do the questions of
religious liberty. The conflict between the activities at the home temples
in Garden Grove, Santa Ana, and Westminster and the zoning requirements in
those cities offer one illustration of this fact. The free exercise
complaints of the Vietnamese Buddhist practitioners are not the result of
direct persecution or apparent government discrimination. Rather, the
restrictions which Ven. Thich Chan Thanh and other monks in the home
temples experience are the indirect results of a general secular law.

Not all of the complaints of the Orange County home temples are severe
enough to warrant protection under the First Amendment. However, the
dispute itself, naturally leads to an examination of the limits of the Free
Exercise Clause.

The hypothetical application of Smith's "strict neutrality" test to parking
and landscaping requirements and the one acre rule in Orange County
illustrates the unstable grounds on which that test is based. In the case
of the one acre rule, this becomes clear because a small change in the
wording of this law would have a large effect on a particular religion. In
the area of parking and landscaping requirements which apply to more than
just churches or religious centers, one can see the lack of protection for
religious liberty in the strict landscaping rules that prohibits images and
statues on the home temples' front lawns. Since such images serve to
identify the building's function to other members of the community seeking
religious sanctuary, their loss is felt more deeply by this particular
religious community than others.

Justice Scalia's "strict neutrality" test is inadequate. By not allowing a
religion to define its own beliefs and practices in deciding First
Amendment questions, the strict neutrality tests does not take into
consideration the actual and inadvertent effects of a state law or
regulation on certain religious traditions. As Scalia himself admits, such
an arrangement means that practitioners of minority traditions will be less
likely to receive protection from the First Amendment than members of
majority faiths.

The four step "balancing test" weighs the interest of the state against the
religion's expressed beliefs and, as a result, remains more true to the
fundamental guarantee of religious liberty than the "strict neutrality"
test. By allowing religious practitioners to explain that the home temple
itself, the consecration of places of worship, and the placement of
ceremonial altar photographs, are all practices characteristic to
Vietnamese Buddhist tradition, the "balancing test" gives practitioners the
opportunity to explain how a rule would effect their tradition.

In asking the state to show a "compelling interest," the second part of the
balancing test ensures that the free exercise claims of a religion will not
automatically secure the practitioner an exception from a general law. The
role of expert witnesses in verifying the "centrality" of a pracice to a
particular tradition means that a judge avoids entanglement by only
deciding if the religious claimants have proved that they have experienced
an undue burden. The close scrutiny afforded by the four part balancing
test offers suitable protection to minority religious traditions and
confirms the idea of the free exercise of religion as a preferred and
fundamental right.

The Bixby Street example offers one final indirect reason for why the
"balancing test" is so important to religious liberty: its role in
facilitating negotiation. As discussed earlier, the Chua Lien Hoa at 9561
Bixby Street was one of the few home temples to be brought to court. It was
charged by the zoning board of Garden Grove for operating religious
services without a permit and for causing a public nuisance. After hearing
both sides of the argument, the judge of the California State Superior
Court in Orange County, in a "balancing" approach, ruled on a compromise
between the two parties. He stated that the temple could continue to
operate for a limited six month period on the grounds that it applied for a
conditional use permit, stopped the use of any loud speaker system at all
ceremonies, and limited the number of people in the building at one time
(25 including monks and children). This "cap" was a compromise between the
temple, which had asked for an allowance of at least thirty persons, and
the city, which required that not more than ten be allowed.

The balancing process undertaken in this decision did not allow the
unrestricted practice of Vietnamese Buddhist ceremonies at "Chua Lien Hoa."
Rather, it made the zoning authorities put forward their most pressing
interests in compliance with planning requirements, and let the monk in
residence decide what was most important about his practice. To the Ven.
Thuong Toa Thich, allowing the gathering of small ceremonial groups at his
home was more important to the Vietnamese Buddhist tradition than was the
use of a public address system. For the Code Enforcement Office, decreasing
the overall noise level at the home temple site held priority over
prohibiting any kind of religious ceremonies or enforcing a minimum land
requirement of one acre for all churches or religious centers.

The "strict neutrality" test could not have laid the foundation for a
compromise in the Garden Grove case. Justice Scalia's method of analysis
for these types of questions would not have been able to consider the
complaints of each party adequately enough to promote a discussion. Thus, a
third factor that argues for the "balancing test" is its ability to bring
about a compromise. By allowing the expression of beliefs and practices of
a religious tradition to make a difference in a free exercise trial, the
"balancing test" enables the relevant regulation to be judged for its
effect on a particular tradition.

1. James Madison, "Memorial and Remonstrance," The Mind of the Founder, ed.
Marvin Meyers (Hanover, Mass.: Brandeis University Press, 1973), 7.

2. See Sherbert v. Verner, 374 U.S. 398 (1963).

3. Ibid.

4. Ibid.

5. Texas Monthly, Inc. v. Bullock, 109 S. Ct. 890 (1989) at 902.

6. U.S.v. Lee, 455 U.S. 252 (1982).

7. Wisconsin v. Yoder, 406 U.S. 205 (1972).

8. Gerald Gunther, Constitutional Law, 12th ed. (Westbury, N.Y.: The
Foundation Press. Inc., 1991), 1566.

9. U.S.v. Lee, 455 U.S. 252 (1982).

10. Bob]ones University v. United States, 461 U.S. 574 (1983).

11. In another decision, Lyng v. Northwest Indian Cemetery Preservation
Association, 485 U.S. 451, the Court technically employed a balancing
approach, but by narrowing its definitions, the Court made certain that the
compelling interest part of the Sherbert test never had to be applied.

12. Employment Division of Oregon Department of Human Resources v. Smith,
108 L.Ed. 2d 876 (1990). Hereafter, this case will be referred to as the
Smith decision.

13. Ibid., 888.

14. Reynolds v. United States, 25 L.Ed. 244, 166-67.

15. Oregon v. Smith, 108 L. Ed. 2nd, 890.

16. Ibid., 897. In her concurring opinion, Justice Sandra Day O'Connor
disputed this claim saying that in both Yoder and Cantwell v. Connecticut,
the Court had relied "expressly" upon the Free Exercise Clause.

17. Ibid., 890.

18. Ibid., 891.

19. Ibid., 893.

20. Department of Justice, "Religious Liberty Under the Free Exercise
Clause." (Paper prepared by the Office of Legal Policy, 1986), 53.

21. Michael McConnell, "Origins and Historical Understanding of the Free
Exercise Clause," Harvard Law Review 130 (1990):1409.

22. Amy Adelson, "Repairing the High Court's Breach of Faith," Legal Times
13 (24 December 1990).

23. Harry Tepker, "Hallucinations of Neutrality in the Oregon Peyote Case,"
American Indian Law Review 16 (1991).

24. This question about the relative adequacy of two First Amendment
interpretations which this author has asked in light of her own case study
and field work on Buddhism in California is currently being posed in a
different way in the U.S. Senate. During the first week of July 1992, a
bill called the Religious Freedom Restoration Act was introduced into the
Senate by Senator Edward Kennedy (D Massachusetts). This act seeks to
re-establish by law, the standard of "compelling" government interest for a
regulation which poses a threat to a religious practice. It is a direct
reaction to the Smith decision.

25. These restrictions were based on negotiations between the two parties.
They included a 25-person maximum cap and an absolute prohibition on the
use of electric amplification systems. See Anh Do, "Temple, residents both
win," The Orange County Register, 4 December 1991.

26. This 1990 Census Bureau record is considered conservative by most
standards. The Vietnamese Social Center of Orange County indicates that the
number of Vietnamese within the county now reaches 140, 000. Settling in a
county which until as recently as 1970 was 97 percent white, these South
Asian immigrants constitute the fastest growing ethnic group in Southern
California. Mark Baldassare, Trouble in Paradise: The Suburban
Transformation in America (New York: Columbia University Press, 1986), 173.

27. Beth Baldwin, Capturing the Change: The Impact of Indochinese Refugees
In Orange Country; Challenges and Opportunities (Santa Ana, Calif.:
Immigrant and Refugee Planning Center, 1982).

28. According to Thich Thien An's book, Buddhism and Zen in Vietnam
(Rutland, Vt.: Charles E. Tuttle Co., 1975), 89, 90, 101, the Pure Land
school, Niem-Phat, or recitation of the name of Amitabha Buddha, brings
about a concentration "through which the other power finds a channel of
expression."

29. John Hinnells, A Handbook of Living Religions (London: Penguin Books,
1984), 279.

30. The Encyclopedia of Religion, 2nd ed., s.v. "Buddhism: An Overview," by
Frank Reynolds and Charles Hallisey, (New York: Macmillan, 1987), 336.

31. Hinnells, Living Religions, 278.

32. Ven. Tu Dang Pham, Interview with the author, June 1991.

33. Archarn Rien Sandung, the head monk at a meditation center for
Vietnamese, Thai, Cambodians, and Laotians, confirmed this fact when he
described his temple to the Los Angeles Times: "This is a monk's
residence," he explained, "Wherever monks live, people come to pay respect
to them. It's for daily life. This is our custom." Irene Chang, "'Here we
go again' Opponents Say, Buddhists Launch Plan to Build New Temple," Los
Angeles Times, 20 July 1989.

34. Nguyen Trong Nho, Attorney at Law, interview with the author, 5 July
1991.

35. B. Revertegat, Le Bouddhisme Traditionel au Sud-Vietnam (Vichy:
Imprimerie Wallon, 1974), 41.

36. Ibid., 39.

37. In Vietnam, traditionally, the "Chua" or "Pagoda" as it is known more
commonly in the West, is a building that is central to the practice of
Vietnamese Buddhism and a main feature of Vietnamese society. Like the
"home temple" in Garden Grove, it is not isolated like a monastery, rather
it is found either within urban centers like Saigon or more commonly in
places in the outskirts of towns or cities. In both cases, the temple is
the home of at least one monk; Revertegat, Le Bouddhisme Traditionel, 41.

38. Source wished to remain anonymous and will hereafter be referred to as
"Ms. Nguyen." Interview with author by telephone, Boston, Mass., 18
February' 1992.

39. "Ms. Nguyen," telephone interview with author, 18 February 1992.

40. Claudia Puig, "Meditative Temple Becomes Center of Sepulveda Zoning
Controversy," Los Angeles Times, Valley Edition, 16 November 1987.

41. Response by Ven. Thich Giac Nhien to survey questionnaire presented by
the author, 12 June 1992.

42. Ron Corriveau, Code Enforcement Officer, interview by author; Notes,
Garden Grove, California, 26 January 1992.

43. Of the twelve responses to the zoning authority's questionnaires about
the Bixby Street home temple, eight of these complained about the noise. A
resident living on Bixby Street stated, "The high volume of music and
chanting and voices disrupts our backyard enjoyment . . . It appears that
there are gatherings that in-elude many people, 30-40, with amplified music
and chanting over the loudspeaker." In addition, the Code Enforcement
Office reported that, after the annual celebration of the Vietnamese New
Year in 1991, the police department received between fifteen and twenty
phone complaints.

44. Interviews with five residents living adjacent to different home
temples conducted by author, Garden Grove, 19 July 1991.

45. Interview of resident of 812 Sherlock Street with author using
tape-recording, Garden Grove, 9 July 1991.

46. In 1926, the Supreme Court approved the first comprehensive zoning plan
dividing a city into districts and assigning a particular use for each
district. (Euclid v. Amble Realty Co. , 272 U.S, 365) Robert Anderson, The
American Law of Zoning 3d, (Rochester, N.Y.: The Lawyers Co-operative
Publishing Co. 1986), vol. 1.

47. Orange County, Municipal Code, sec. 12.02 and sec. 78.021. For further
elaboration of these principles, see Snow v. Garden Grove, 188 Ca 2d 496
(1961).

48. California, more than the majority of states, allows autonomy to local
administrative bodies to set their own agenda for planning and zoning. The
"Home Rule" provision of the California Constitution states that, "A county
or city may make and enforce within its limits all local, police, sanitary,
and other ordinances and regulations not in conflict with general laws."
(Cal. Const., art. XI, & 7), See generally, Charles, J. William, California
Zoning Practices, (Berkeley, Cal.: California Continuing Education of the
Bar Supplement, 1978), 84, 258, 90. For zoning power of California
counties, see Government Code Sections 65800-659087.

49. Conditional Use Permit (informational brochure) issued by the City of
Garden Grove Development Services Department, 11391 Acacia Parkway, Garden
Grove, Ca. 92640.

50. See Garden Grove Municipal Code, & 9.1.2.04.10.

51. See Planning Department of Santa Aria regarding "Proposed Temple In The
R-1 Zone, 5009 West Fifth St., DP #87-214." 3-4.

52. Office of Planning, City Hall, Westminster, telephone interview with
author, 6 March 1992.

53. Ms. Janet Jensen, Management of Code Enforcement, interview with
author, Garden Grove, Calif., 26 January 1992.

54. In addition to acquiring a conditional use permit and adequate parking
facilities, Planning Department regulations for the construction of a
temple in a residential area of Santa Ana included everything from
specifications about the dimensions of landscape planters to the type of
irrigation system necessary for lawn maintanence. See Planning Department
Statement on "Proposed Temple In The R-1 Zone, 5009 West Fifth St., DP
#87-214."

55. According to Mark Cordes, "Where to Pray? Religious Zoning and the
First Amendment," Kansas Law Review 35 (1987): 697, 698, the court has
noted that the dismissal of an appeal for lack of a substantial federal
question is a precedent for other similar cases. However, he adds, such a
precedent is not as binding as one which comes from a decision rendered
after "plenary consideration" of a given case. Thus, although past church
zoning disputes have not been thought of as involving a federal question,
this does not mean that another case with similar circumstances would not
invoke consideration of the court in the future.

56. Santa Aria, California, "Zoning and Planning Requirements for Churches
and Religious Centers: Garden Grove, California, 1992," Department of
Planning #84-241, 1992, sec. 12, 18, and 19.

57. According to the Ven. Thich Qang Thanh, the statue at his temple was a
means to identify it as a place of religious activity. He stated, "The
statue is not for business. It is only to allow people to know what we are
doing here." Tape-re-corded interview by author, Garden Grove, California,
20 July 1992.

58. Information supplied by the Westminster City Clerk, interview with
author, Santa Ana, California, 26 January 1992.

59. Government Code, & 65906.5, in West's Annotated California Code,
Streets and Highways Code, Sections 18000 to End., St. Paul, Minn: West
Publishing Co., 1969. Examples of a variance in these standards would
appear in the case where a church had both a "fellowship hall" and a
"sanctuary." In the event that these buildings were used simultaneously,
the parking requirements would be greater than if they were used
separately. Planning Commissioner of Westminster, interview with author, 9
March 1992.

60. Gunther, Constitutional Law, 1191.

61. The three documented cases where a home temple wanting to legalize its
status as a religious center have been turned down, are as follows: 1) 1111
Magnolia (not enough parking for occupancy levels), 2) Bixby St. (papers
not in order), 3) 5th St. Temple (intrusion into neighborhood).

62. In a case involving a Buddhist home temple in a residential area of
Santa Aria in 1987, one of the three reasons given by the Planning
Commission for its denial of a conditional use permit had to do with the
proposed architectural design of the building. Santa Ana, California,
Minutes from the Planning Commission's meeting on Conditional Use Permit
No. 87-16. 25 July 1988.

63. The denial of a conditional use permit for a Korean church in Garden
Grove in 1987 was based partially on the grounds that "the proposed project
lacked a reasonable degree of physical, functional, and visual
compatibility with the legally existing, neighboring limited neighboring
residential uses." Mayor J. Tillman Williams letter to James Hunter, Vice
Chairman of the Orange County Human Relations Commission, 5 May 1988.

64. In a case involving a Buddhist home temple in a residential area of
Santa Aria in 1987, "the [Planning] Commissioners argued that the proposed
site would have an adverse affect on the General Plan by allowing an
intensification of use to intrude into a residential neighborhood." Santa
Ana, California, City Council of Santa Ana's Resolution No. 88-86, 29
November 1988.

65. Reynolds, "Zoning the Church," 787.

66. Oregon v. Smith, 108 L. Ed. 2nd 876 (1990).

67. Sherbert v. Verner, 374 U.S. 398 (1963).

68. Mark Cordes, "Where to Pray? Zoning and the First Amendment," 72-73,
offers a variation on this four-step balancing process. For judging a
zoning regulation which, effectively excludes religious sites from one or
more zones in a city, Cordes suggests that 1) there must be a substantial
state interest, 2) the law must be "narrowly tailored," 3) it must leave
open other alternative sites in the city, and 4) it must be
content-neutral. Laurie Reynolds, "Zoning and the Church" Boston University
Law Review 64 (1985): 767, also proposes a test that is similar to the
balancing method in Sherbert. She argues that the exclusionary zoning of
churches is lawful only if certain conditions are met. A judge must find
that the ordinance does not discriminate against one religious tradition in
favor of another, that the city must provide alternative sites for an
excluded religious center, that the regulation should serve a significant
government interest, and finally, that the zoning rule in question is the
least restrictive means of pursuing the state interest. Finally, the
Rathkopfs' The Law of Zoning and Planning, & 20.01 - & 20.18 says that in
most states where churches are considered a "favored use," the court must
closely scrutinize decisions where religious centers were denied zoning
permits. The authors state that typically reasons for such denials, like
the residential character of the neighborhood, loss of tax revenue,
property availability elsewhere, and non-use of the religious center by
residents, are all considered by a majority of states to be "outweighed by
the social, ethical, and moral values inherent in a church."

69. Professor Donald Swearer, telephone interview with author, Swarthmore,
Massachusetts, 13 March 1992. For Swearer's works, see Buddhism in
Transition (Philadelphia: Westminster Press, 1970) and Wat Haripunjaya
(Atlanta: Scholars Press, 1976).

70. Garden Grove Municipal Code, & 9.1.2.04.10.

71. The Venerable Thuong Toa Thich Mirth Ton, interview by author with
notes, Tinh Xa Minh Quang Temple at 10351 Hazard Ave., Garden Grove,
Calif., July 1991.

72. Interview, Cambridge, Massachusetts, 19 February, 1992. According to
"Ms. Nguyen" at the Harvard Yen Ching, "[The Vietnamese Community] cannot
afford to buy one acre. In Vietnam, there were both big temples and small
temples. Sure, if they had money, many of the monks would build bigger
temples."

73. Murdock v. Pennsylvania , 319 U.S. 114 (1943).

74. Estimate given by personnel at the Garden Grove Redevelopment
Authority, City Hall, 11391 Acacia Parkway, 26 January 1992.

75. Although there is little written documentation of the details of
consecration ceremonies in Vietnamese Buddhism, in the Thai Buddhist
tradition, consecration ceremonies often involved the blessing or
ordination of a statue. Prior to this practice of Buddhabhiseka, "the
images were considered to be simply structures, after the service the
images were phra, something worshipful and more than mere metal." Kenneth
Wells, Thai Buddhism, Its Rites and Activities, (Thailand: Suriyabun
Publishers, 1975), 123.

76. The Ven Phap Chau, president of the Vietnamese Association of America,
told reporters that temporarily renting a space for religious worship would
be impossible since "moving the temple's shrine - which has about one
thousand dead relatives of his congregation - would be tantamount to moving
graves. "Robert Frank, "Law and Buddhism clash at temple that must shape up
or shut down," The Orange County Register, 6 December 1992.

77. Telephone interview with Professor Donald Swearer, Swarthmore,
Massachusetts, 13 March 1999.

78. Robert Frank, "Law and Buddhism," 6 December, 1991; see also Janet
Jensen, Code Enforcement Manager, interview with author, Garden Grove,
California, 9.6 January 1999. Results of the cultural difference between
the zoning board and the temples were evident in other ways as well.
"Cultural gaffes," as they were called in an article by The Orange County
Register, 6 December 1989, were evident when two zoning officials walked
into the middle of a ceremony on the first Sunday after Tet, the Vietnamese
New Year at Chua Vietnam on Magnolia Street. Quite apart from the
disturbance of breaking up a ceremonial gathering while it was underway,
this intrusion came at a time when religious tradition dictated the
importance of an orderly and well-conducted ceremony. According to
Vietnamese custom, [and other South Asian traditions] the events of the
first day of the year are representative of the fortune of the entire year
to come. Thus, the breaking up of this religious ceremony and two others
like it had unfortunate effects on those Vietnamese who were attending the
ceremony. Such examples of insensitive behavior on the part of the Code
Enforcement Office, although not technically illegal, do not help to
establish cooperation or understanding in the community. These factors are
also able to be weighed in the balancing test.

79. See Lyng v. Northwest Indian Cemetery Protection Ass'n, 485 U.S. 439
(1988) and Bowen v. Roy, 476 U.S. 693 (1986).

80. Orange County Municipal Code, Section 78.021.

81. Snow v. Garden Grove, 188 CA 2d 496 (1961).

82. Interview with notes with Mr. Ron Corriveau, Code Enforcement Officer
for Garden Grove, Garden Grove, California, June 1991.

83. See Memphis v. Green, 451 U.S. 100 (1981) at 101 in which the Court
upheld a city ordinance against an accusation of racial discrimination in
the diversion of commuter traffic flow from a residential neighborhood.
Also, in Village of Arlington Heights v. Metropolitan Housing Development
Corps, 429 U.S. 252 (1977), the Court upheld a decision to deny a building
permit for a multi-family low income housing that was in accordance with
the city's rational zoning scheme.

84. Cordes, "Religious Zoning," 761.

85. Paige Cunningham, "Zoning Ordinances, Private Religious Conduct, and
the Free Exercise of Religion," Northwestern University Law Review 76
(1981): 807.

86. Examples of state actions taken in response to residential complaints
about the temples included a break-up of a service by zoning authorities at
Chua Vietnam in 1987. The order stopped the Ven. Phap Chau, the head monk,
from operating until the building complied with various safety and fire
hazards. In addition, the nuns at the temple, Chua Duoc Su, located at
11111 Magnolia, were denied a permit owing to inadequate parking
facilities. Finally, the most confrontational city action against the
temples was directed toward Chua Lien Hoa on 9561 Bixby Ave. when the city
attorney and planning commission initiated a civil suit on behalf of the
residents in the neighborhood on the grounds of nuisance.

87. According to Ron Corriveau, Code Enforcement Officer in Garden Grove,
his office received between fifteen and twenty complaint calls during the
celebration of the Buddha's Birthday last year; interview by author with
notes, Garden Grove, California, 20 June 1992.

88. This questionnaire was made up and distributed by Ron Corriveau, a Code
Enforcement Officer for the City of Garden Grove. A resident on Carthay
Circle in response to this questionnaire given by the Garden Grove Code
Enforcement Office regarding the activity of a Vietnamese "home temple" at
9561 Bixby Street, stated on 7 October 1991, "You can't imagine the noise
level. We [hear] chanting, a gonging bell and some kind of stick beating on
wood very rhythmically. Sometimes it goes on from 10:00 A.M. to 1:00 P.M.
and they congregate for a feast in the yard usually for another two hours."

89. According to Harry Tepker, "Hallucinations of Neutrality in the Oregon
Peyote Case," American Indian Law Review 16 (1991): 1-55, the balancing
test "often allows the utmost latitude for evasion, and this lacks the
quality of a rule of law . . . In free exercise cases, the test is often
too responsive to preconceptions and prejudices about their religious
doctrine at stake."

90. Lyng v. Northwest, 485 U.S. 476.

91. Oregon v. Smith, 108 L.Ed. 876 (1990).