For the last two decades, outdoor homeless encampments known as tent cities have organized, often on church land, as highly visible reminders of poverty and hardship. Their existence has led to a series of legal battles with local governments over where and under what circumstances homeless communities can abide.
In a recent case pitting Northshore United Church of Christ against the city of Woodinville, the Washington Supreme Court found that the city's moratorium on conditional use permits unconstitutionally burdened the church's religious freedom. The moratorium foreclosed the church's ability to host Tent City 4, a tent city encampment on church property. The court suggested, however, that a more narrowly tailored regulation might have passed constitutional scrutiny.
In an opinion filed July 16, the court ruled that Woodinville’s refusal to consider a permit request substantially infringed on the congregation’s ability to practice its religion. The conclusion relied on the state’s constitution rather than federal law—the state guarantees “absolute freedom of conscience in all matters of religious sentiment, belief and worship,” provided the practices don’t threaten the “peace and safety of the state.”
The church’s attorney, Robert Hyde, argued before the court that the Northshore church congregation and members of tent city faced an urgent spiritual need because, absent housing in Woodinville, Tent City 4 faced disbandment.
“At the time of the application there were no alternative properties,” Hyde said. “The timeline is important, your honor, because what we’re talking about here is a religious exercise that is time sensitive. The Bible teaches us that you have to provide shelter to the poor and the homeless in their time of need, not six months down the road, not when you get around to it.”
The Background
Tent cities are intended as temporary sources of shelter for displaced men and women, including couples. Churches around the region host the encampments for approximately 90 days at a time—tent city communities are currently located on or near churches in Madrona and Redmond. The groups are self-governing: the 60 to 100 residents agree to a contract of behavior and to volunteer for camp security and cleaning, kitchen coordination and donation sorting. SHARE/WHEEL, a nonprofit that sponsors tent cities, contracts and pay for garbage service, sanitation facilities and fencing at the camps.
More than 30 communities have hosted the camps since Tent City 3 began in 2000. Tent city’s first incarnation, founded in 1990, and its short-lived successor, both operated outside the channels of municipal permitting. The tent cities’ legal status achieved better local definition in 2001, when a judge ruled that the encampments could occur on private land. In 2002—in the midst of a lawsuit over permit denial for an encampment—the City of Seattle settled on an agreement that specified limits to the longevity of the camps and required neighborhood outreach.
Woodinville and the Northshore church hosted Tent City 4 in 2004, and in 2006 the church applied for a temporary use permit to host the group again. Citing an ongoing moratorium on permits for the church’s zoning category, the city refused the application. The Woodinville City Council also voted against housing the encampment on its own land, which the city had made available in 2004.
The church hosted the encampment nonetheless, and Woodinville officials sought a restraining order blocking the tent city, citing its lack of a permit. The matter wound through the courts and in 2008 the Washington Supreme Court heard the case. At question was whether the city’s action burdens a sincere exercise of religion.
Housing the Homeless: A Religious Practice?
In its opening brief before the Washington Supreme Court, Northshore Church argued that, “This was an emergency situation: without the help of the church, the residents of Tent City 4 would have been on the streets, at great risk to their health. For such a catastrophic result to emerge from a situation where vacant church and city land is ready to host a temporary encampment is a severe miscarriage of justice. While such an event would be offensive to most people, to the members of the church it holds the additional burden of being a violation of their faith.”
How religious faith relates to hosting tent cities played a crucial role in this case, as opposing sides argued whether specific ministrations to the community—such as housing the homeless—qualified as religious practice.
“Tent City 4 has no religious aspect itself,” Woodinville attorney Greg Rubstello said in oral arguments, and suggested that if church members wanted to minister to the homeless they could do something other than provide their land as temporary housing, a sentiment voiced previously in the appeals court decision that found in favor of Woodinville.
The Church Council of Greater Seattle filed an Amicus Curiae brief objecting to that notion, writing that, “A court may not second-guess the manner in which a church chooses to engage in specific religious exercises.”
The churches involved in the brief cited the tradition of sanctuary, which extends from early Judaism through feudal times and into the modern era—in the U. S., churches served as sanctuaries for fugitive slaves.
Both Christian and Jewish congregations arguing in support of tent cities cited admonitions in their holy texts to minister to strangers in need. In its opening brief, the Northshore Church argued that, “Caring for the poor and homeless is a fundamental tenet of Christianity, an expression of the commandment to ‘love your neighbor as yourself.’”
The Jewish religious leader Hillel famously asked, “If not now, when?” That was an imperative to action the B’nai Torah synagogue invoked in 2005 as it sued Bellevue for the right to house tent city.
“B’nai Torah’s religious imperative to help the needy does not depend on whether the particular men and women who seek refuge are ‘secular’ as opposed to adherents of any particular religion. … B’nai Torah’s beliefs in this regard descend directly from the well-known story of Abraham who, 4,000 years ago, invited three strangers into his tent and washed their feet,” Rabbi James Mirel wrote in that case. “The Torah commands: ‘There will never cease to be needy ones in your land; therefore I command you: Open your hand to the poor and needy kin in your land…’ Temple B’nai Torah believes that all prayers and rituals are for naught if we turn our backs on the needy.”
Northshore United Church of Christ’s pastor Cynthia Riggin wrote to her congregation that the Supreme Court’s decision “upholds and protects our religious freedom and liberties to minister to the homeless.” She continued: “We have long held throughout this lengthy and costly process that our religious freedom to serve the homeless on our church property had been violated by the City of Woodinville.”
In the unanimous Supreme Court decision, Justice James Johnson explained that in order to demonstrate that a regulation violates the state constitution's guarantee of religious freedom, the party must show two things: that the belief is sincere and that the government action burdens the exercise of religion. He then wrote that, “There is no issue raised here of whether hosting tent city is important or central to the church’s exercise…. The city conceded in its briefing in this case the church’s sincerity of belief.”
As to the government's burden on religion, Johnson was careful to point out that the burden must be more than slight, it must be substantial. Johnson then wrote that given the lack of an urgent motivation for Woodinville’s moratorium on development, "the total refusal to process a permit application is such a burden."
However, in their concurring opinion Justices Richard Sanders and Tom Chambers objected to the court majority’s characterization of ministering to the poor as a lesser, or less protected, religious practice.
In the majority opinion, Johnson had written that, “housing the homeless may be a part of religious belief or practice, but it is different from prayer or services, for example, which are at the core of protected worship.”
“I concur in result but write separately to focus on the majority’s errant and dangerous assumption,” Sanders responded, “that the government may constitutionally be in the business of prior licensing or permitting religious exercise anymore than it can license journalists.”
He quoted former Washington Supreme Court Justice Charles Smith’s dissenting opinion in the 2000 case involving Open Door Baptist Church—“our courts must at all times stand as a bulwark between the state and the church to assure the free exercise of religion guaranteed by our Constitution. The courts must then be vigilant against seemingly minimal encroachments by the state which would lead us towards sanctioned government intervention such as practiced in some totalitarian nations.”
Balancing Religious Mandate and Municipal Discretion
The Open Door case could be seen as a bookend to the Woodinville matter. In Open Door, the court ruled that the state constitution's guarantee of religious freedom was not so absolute as to make Open Door Church immune from permitting requirements. Unlike the Woodinville case, where the city refused to consider the church's permit application, it was the Open Door Church that refused to apply for a permit, choosing instead to go to court. The two cases offer some direction to both church and state with regard to the constitutional parameters for permit regulations and the corresponding duty to follow them.
The majority opinion in the Woodinville case may serve in the future to justify licensing requirements placed upon church activities, a consequence Sanders described as antithetical to the state constitution’s mandate of freedom.
“I disagree that it is the role of black-robed judges to sit in judgment on whether a burden on religious exercise is substantial or slight when the constitution speaks of ‘[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship,’” Sanders wrote. “Absolute means absolute.… prohibiting religious exercise absent a permit or a license cannot be found amongst the exceptions to the general rule of freedom.”
If church communities continue to introduce the tent cities to new neighborhoods, the question of how far government can go in regulating religious institutions’ use of private land is likely to resurface. The tent cities’ continuing existence will hinge on how the court balances religious mandate and municipal discretion.
