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Edina Community Lutheran Church v. State: 1ST AMENDMENT | RLUIPA - Minnesota gun sign law and churches under Minnesota and U.S. Constitions

Edina Community Lutheran Church,
Unity Church of St. Paul,
State of Minnesota,
Filed February 5, 2008
Affirmed in part and reversed in part
Minge, Judge
Hennepin County District Court
File No. 27-CV-05-011659
David L. Lillehaug, Frederikson & Byron, P.A., 200 South Sixth Street, Suite 4000,
Minneapolis, MN 55402 (for respondent Edina Community Lutheran Church)
Marshall H. Tanick, Mansfield, Tanick & Cohen, P.A., 220 South Sixth Street, Suite
1700, Minneapolis, MN 55402 (for respondent Unity Church of St. Paul)
Lori Swanson, Attorney General, Peter Marker, Jocelyn F. Olson, Assistant Attorneys
General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for
Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and
Minge, Judge
1. Provisions of the Minnesota Citizens Personal Protection Act of 2005 that
effectively (a) require that before a church may order a person carrying a firearm to leave
its premises, the church must (i) post at every entrance signs that conform to specific
requirements, or (ii) personally inform each person that guns are prohibited and demand
compliance; (b) preclude churches from prohibiting guns in parking areas on church
property; and (c) preclude churches from prohibiting their tenants and the guests of
tenants from having guns on church property are unconstitutional under article I, section
16, of the Minnesota Constitution.
2. The granting of an injunction that recognizes an exemption for churches that is
analogous to the statutory exemption applicable to private residences under the
Minnesota Citizens Personal Protection Act of 2005 does not violate the Establishment
Clause of the First Amendment to the United States Constitution.
3. Provisions of the Minnesota Citizens Personal Protection Act of 2005 relating
to the exclusion of guns from private property do not constitute land use regulations,
within the meaning of the Religious Land Use and Institutionalized Persons Act of 2000,
chapter 2000cc of title 42 of the United States Code.
MINGE, Judge
Appellant State of Minnesota challenges the district courts grant of a permanent
injunction barring enforcement of certain provisions of the 2005 Minnesota Citizens
Personal Protection Act (the 2005 Act) against respondent churches. Appellant contends
that the district court erred by (a) concluding that the 2005 Act excessively burdens the
rights of respondents protected by Minn. Const. art. I, 16; (b) determining that the 2005
Act violates respondents rights under U.S. Const. amend. I; and (c) finding that the 2005
Act violates the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. 2000cc. Appellant also argues that the recognition of an
exemption for the churches from statutory provisions generally applicable to private
establishments violates the Establishment Clause of the federal constitution.
Because the district court did not err in granting injunctive relief based on the state
constitutional provision guaranteeing religious liberty, and because the district courts
recognition of an exemption does not constitute an impermissible establishment of
religion, we affirm in part. Because this decision rests on independent and adequate state
constitutional grounds, we do not reach the question of whether the district court erred in
finding the 2005 Act unconstitutional under the First Amendment of the United States
Constitution. Finally, because we conclude that the provisions of the 2005 Act pertaining
to the exclusion of guns from private property do not constitute land use regulations,
we reverse that part of the district courts decision finding the 2005 Act to be in violation
In April 2003, the Minnesota Legislature adopted 2003 Minn. Laws ch. 28 (the
2003 Act). The legislation was immediately challenged in at least two separate actions:
its enforcement was temporarily enjoined by one district court at the request of religious
organizations asserting violations of state and federal constitutional provisions, and it was
declared by a different district court to violate the single-subject requirement of Minn.
Const. art. IV, 17. See Unity Church of St. Paul v. State, 694 N.W.2d 585, 590, 599 n.2
(Minn. App. 2005) (discussing different challenges to the 2003 Act), review dismissed
(Minn. June 9, 2005).
On appeal from the judgment in favor of the challengers in the single-subject suit,
this court affirmed the determination that articles 2 and 3 of the session law were
unconstitutional because they were not germane to the same subject as article 1, which
contained many provisions on topics relating to natural resources, but which were
unrelated to handgun permitting and firearm regulation. Id. at 595. Although the district
court had indicated its willingness to find the 2003 Act unconstitutional under
Minnesotas Freedom-of-Conscience Clause, Minn. Const. art. I, 16, this court declined
to offer an advisory opinion on the alternative arguments raised by the challengers,
leaving those issues for another day. Id. at 600.
This courts opinion was filed on April 12, 2005, and the state petitioned the
supreme court for further review. Id., pet. for rev. filed (Minn. May 11, 2005). Shortly
thereafter, the legislature reenacted the provisions of articles 2 and 3 retroactively and
without interruption from April 28, 2003 and added certain amendments in a session law
that dealt exclusively with the permitting and regulation of firearms. 2005 Minn. Laws
ch. 83, 1-11 at 442-50 (the 2005 Act). The state then withdrew its petition for further
review of this courts ruling concerning the 2003 Act.
The respondents on this appeal are Edina Community Lutheran Church (Edina)
and Unity Church of St. Paul (Unity) (or collectively churches). Both were involved in
a challenge to the 2003 Act, and both argued in that action that the act violated freedomof-
conscience and religious-association rights protected by the Minnesota and federal
constitutions. As indicated above, those claims were not addressed on appeal because the
act was declared unconstitutional on other grounds. See Unity Church of St. Paul, 694
N.W.2d at 600. After the legislature reenacted the Minnesota Citizens Personal
Protection Act in 2005, Edina and Unity brought the action now before us, seeking
injunctive relief on grounds that were substantially similar to their earlier challenge.
Here, the district court granted permanent injunctive relief, prohibiting
enforcement against the respondent churches of the statutory provisions relating to
signage and personal notice, parking areas, and landlords. For ease of reference, we refer
to the following provisions of the 2006 Minnesota Statutes as the challenged
provisions: Minn. Stat. 624.714, subds. 17(a) and (b) (2006) (prescribing two options
for notifying visitors that guns are banned from private establishments); 17(c) and 18(c)
(barring private establishments and employers from prohibiting firearms in parking areas
and facilities); and 17(e) (prohibiting landlords from restricting the possession of firearms
by tenants or their guests).
The churches submitted the matter to the district court on the basis of a stipulated
record, and the parties do not dispute the facts. That record contains uncontroverted
affidavits from the churches describing the religious burden imposed by the challenged
provisions. Edina provided affidavits from its bishop and pastors stating that compliance
with the act would violate sincerely held religious beliefs and the churchs statement of
mission and purpose, which includes a commitment to peacemaking and nonviolence in
all relationships. Edinas religious leaders assert that the church is considered to be a
place of sanctuary. Regarding the requirement that signs be posted at every entrance,
Edinas religious leaders explained that the entrances of Lutheran churches are reserved
for important religious messages and this can be traced to Martin Luthers act of nailing
the Ninety-Five Theses to the door of the Castle Church in Wittenberg, Germany.
Edina owns and operates a church building, contiguous parking areas, and a
contiguous playground for children. The lower level of the church, which is used for
Sunday school instruction and nursery school, is directly accessible from the parking lot.
Edina provided specific evidence that its parking lot is used for worship activities,
including the Vigil of Easter. As part of its religious mission, Edina asserts that it serves
as employer of religious persons and landlord for a licensed child-care center that is
operated in its church building. Finally, Edina provided evidence that its leadership and
congregation unanimously seek to prohibit firearms on all of the churchs property.
Unity also provided uncontroverted affidavits from its co-ministers. Unitys
mission and values establish that the church strives to be a free and inclusive religious
community that provides a place of sanctuary and is openly welcoming. On Sunday
mornings, Unity has greeters at entrances to the church building to personally welcome
visitors. Unity asserted that compliance with the signage and personal notice
requirements of the act would be inconsistent with its mission to provide a safe sanctuary
and welcoming place of worship. Unitys buildingencompassing approximately
54,000 square feethouses a large sanctuary and chapel, office space, classrooms, a
nursery, gathering places and meeting rooms, a parish hall and kitchen, libraries, and a
courtyard. Unity also considers two parking lots on church property important in
accomplishing its religious mission. These lots, along with the church building, are used
for weddings, funerals, religious education classes for youth and adults, prayer vigils, car
washes and other fundraisers, and numerous community meetings and events.
Unity is also a landlord and an employer. At times, Unitys church premises serve
as an overflow homeless shelter for Ramsey Countys Project Home. Families arrive and
leave by taxi through a church parking lot and, when needed, the church uses Sunday
school classrooms as bedrooms. As part of Unitys commitment to peacemaking and
nonviolence, church leaders have adopted resolutions prohibiting firearms on all church
property. The resolutions reflect Unitys belief that the challenged provisions violate the
right to use church property to communicate and exercise religious beliefs and burden the
right to welcome worshippers and visitors as Unity sees fit.
The state does not challenge the sincerity of the religious beliefs asserted by the
churches. The state presented affidavit evidence on the purposes underlying adoption of
the 2003 Act and the 2005 Act, but did not present specific evidence on the impact, if
any, of enjoining enforcement of the challenged provisions on church property.
I. Did the district court err by concluding that the challenged provisions violate
respondent churches fundamental religious liberty rights protected by Minn. Const. art.
I, 16?
II. Did the district court err by finding that the challenged provisions violate
freedom-of-association rights protected by the First Amendment of the United States
III. Does the district courts grant of a permanent injunction and recognition of a
religious exemption violate the Establishment Clause?
IV. Did the district court err by finding that the challenged provisions violate
We begin with the determination under the Minnesota Constitution. The
constitutionality of a statute is a question of law to be decided de novo, and an appellate
court is not bound by the district courts decision. Hamilton v. Commr of Pub. Safety,
600 N.W.2d 720, 722 (Minn. 1999). Statutes are presumed constitutional, and an
appellate court should exercise extreme caution in deciding whether to declare a law to be
unconstitutional. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 298-
99 (Minn. 2000).
A. Statutory Framework
A preliminary review of the specific provisions of the Minnesota Citizens
Personal Protection Act at issue may be helpful. Although the 2003 Act and the 2005
Act modified several statutes, most of the provisions that are the focus of this opinion are
now codified in Minn. Stat. 624.714 (2006) and were not significantly altered when
reenacted in 2005. With the adoption of the 2003 Act, Minnesota became a shall-issue
state, requiring county sheriffs to issue permits to carry firearms to qualified applicants.
Id., subds. 2(b) (defining those to whom permits must be issued), 6 (requiring sheriff to
issue permit or deny on specified grounds within 30 days after receipt of application).
The manner and extent to which property owners, occupants, and operators of
establishments may exclude firearms is treated differently in the applicable statutes,
depending primarily on the type of property involved.1 Limitations on the possession of
firearms on school property are addressed principally in the criminal code. See Minn.
Stat. 609.66, subd. 1d (2006). With limited exceptions, peopleincluding those who
have permits to carry firearmsare not entitled to possess firearms on school property,
including public and private elementary, middle, and secondary schools and their
improved grounds; licensed child-care centers at which children are present and
participating in child-care programs; or school buses. Id.
Other types of property are treated differently. The possession of firearms at
private establishments is addressed in subdivisions 17 and 18 of section 624.714, and the
parties to this appeal agree that these are the most pertinent provisions. Permit holders
cannot be prohibited from carrying or possessing firearms in a [private establishments]
parking facility or parking area. Id., subd. 17(c). Beyond the parking areas, owners and
operators of private establishments may request that those carrying guns leave their
premises: A person carrying a firearm . . . under a permit or otherwise2 who remains at a
private establishment knowing of a reasonable request by the establishments owner
or operator that guns not be brought onto the premises may be ordered to leave the
1 Some statutory provisions focus on the role of the person carrying the firearm, rather
than the location. See, e.g., Minn. Stat. 609.66, subd. 1d(e)(1), (2) (2006) (peace
officers and military personnel exempt from provisions criminalizing possession of
dangerous weapons on school property), 624.714, subd. 17(g) (2006) (exempting peace
officers and security guards from provision providing for trespass for possession of a
firearm on premises where they are banned).
2 The statute does not appear to be limited to those who are authorized to carry guns
because they have lawfully obtained a carry permit and are carrying a lawful weapon,
because it refers to a person who is carrying a firearm under a permit or otherwise.
Minn. Stat. 624.714, subd. 17(a).
premises. Id., subd. 17(a). If someone who knows of a reasonable request to refrain
from bringing guns onto the premises (a) fails to honor that request, (b) is ordered to
leave, and (c) nonetheless fails to leave; the person may be found guilty of a petty
misdemeanor, but cannot be fined more than for a first offense. Id.; cf. Minn. Stat.
609.0331 (2006) (providing that maximum penalty for other petty misdemeanors is
0).3 To qualify as a reasonable request to refrain from carrying guns onto the
premises, the owner either (a) must post a conspicuous sign at every entrance stating
that the operator of the establishment BANS GUNS IN THESE PREMISES, and the
placement of the sign must conform to detailed requirements as to typeface, color, size,
lateral distance from the entrance, and height from the floor; or (b) must personally
inform[] the person that guns are prohibited in the premises and must demand[]
compliance. Id., subd. 17(b).
Respondents object to the provisions requiring churches to post signs or provide
personal notice, to the requirement that they order a gun-carrying individual to leave the
premises before the statutory sanction (a petty misdemeanor) may be invoked, and to the
statutory prohibition against banning guns in church parking areas.
The statutory provisions on signage and personal notice contained in subdivision
17 have no application to private residences. Id., subd. 17(d). The lawful possessor
of a private residence may prohibit firearms, and provide notice thereof, in any lawful
manner. Id. While the possessor of a private residence can exclude guns, [a] landlord
3 In addition to the penalty for refusal to leave, a person carrying a gun without a permit
may also be guilty of a gross misdemeanor under Minn. Stat. 624.714, subd. 1a (2006)
(unlawful possession).
may not restrict the lawful carry or possession of firearms by tenants or their guests. Id.,
subd. 17(e). In their role as landlords, the respondents object to the statutory prohibition
against churches restricting the carrying and possession of guns by their tenants and the
guests of their tenants.
In addition to the possessors of private residences, some other property owners are
authorized to limit the carrying and possession of guns without complying with
statutorily-mandated signage or personal notice requirements. Employers can limit the
carrying of guns by employees who are acting within the scope of their employment, and
postsecondary schools can restrict the possession of firearms by students on school
property, but neither group can prohibit the lawful carry or possession of firearms in a
parking facility or parking area. Id., subd. 18. Thus, although employers and
postsecondary schoolslike the owners and operators of private establishmentscannot
ban guns from parking areas, they are free to adopt policies restricting the possession
of guns on the job or on postsecondary school property and to impose [e]mployment
related civil sanctions or [a]cademic sanctions for violations. See id., subd. 18(a)
(employment-related civil sanctions), (b) (academic sanctions). Neither the language of
those policies nor the manner of imposing sanctions for violations is prescribed by the
B. Constitutional Analysis
We turn now to appellant-states challenge to the district courts determination
that the challenged portions of the 2005 Act violate the churches freedom-of-conscience
rights under the Minnesota Constitution.
Article I, section 16 of the Minnesota Constitution states:
The enumeration of rights in this constitution shall not deny
or impair others retained by and inherent in the people. The
right of every man to worship God according to the dictates
of his own conscience shall never be infringed . . . nor shall
any control of or interference with the rights of conscience be
permitted, or any preference be given by law to any religious
establishment or mode of worship; but the liberty of
conscience hereby secured shall not be so construed as to
excuse acts of licentiousness or justify practices inconsistent
with the peace or safety of the state[.]
(Emphasis added.)
Religious liberty is a precious right. State v. Hershberger, 462 N.W.2d 393, 398
(Minn. 1990). The people of this state have always cherished religious liberty and the
high importance of protecting this right is demonstrated by its treatment in our
constitution, where it appears even before any reference to the formation of a
government. State by Cooper v. French, 460 N.W.2d 2, 8-9 (Minn. 1990). The
Minnesota Supreme Court has consistently held that article I, section 16 of the Minnesota
Constitution affords greater protection against governmental action affecting religious
liberties than the First Amendment of the federal constitution. Hill-Murray Fedn of
Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 864-65 (Minn. 1992); Hershberger,
462 N.W.2d at 397. Whereas the first amendment establishes a limit on government
action at the point of prohibiting the exercise of religion, section 16 precludes even an
infringement on or an interference with religious freedom. Hershberger, 462 N.W.2d at
397. Thus, government action that is permissible under the federal constitution because it
does not prohibit religious practices but merely infringes on or interferes with religious
practices, may nonetheless violate the Minnesota Constitution. Id.
Minnesota courts employ a heightened compelling state interest balancing test
when determining whether a challenged law infringes on or interferes with religious
practices. Hill-Murray, 487 N.W.2d at 865. The test has four prongs: (1) whether the
objectors beliefs are sincerely held; (2) whether the state regulation burdens the exercise
of religious beliefs; (3) whether the state interest in the regulation is overriding or
compelling; and (4) whether the state regulation uses the least restrictive means. Id.
1. The Sincerity of the Churches Religious Beliefs
The state does not challenge the sincerity of the churches religious beliefs. Both
churches are committed to peacemaking and nonviolence, to maintaining and providing a
place of sanctuary, and to using church property in furtherance of their religious
missions.4 Edina also submitted uncontroverted evidence that church entrances have a
special significance in the Lutheran tradition. This prong of the test is clearly met.
2. Whether the Challenged Provisions Burden the Exercise of Religious
The state argues that the challenged provisions of the 2005 Act present only a de
minimis burden on the churches exercise of their religious beliefs. The churches counter
that the challenged provisions burden their rights to communicate and worship as they
4 We note that nonviolence beliefs may be core principles in faith communities and that
Congress has accommodated such religious-based beliefs in the vital areas of national
defense and military conscription. See 50 U.S.C. App. 456(j) (2000) (exempting from
combatant training and service in the United States armed forces those who by reason of
their religious training and belief are conscientiously opposed to participation in war
in any form.).
see fit, to use church-owned property to further their religious missions, to preclude
employees from possessing firearms in parking areas, and to restrict the possession of
firearms on church property by tenants.
Under the second Hill-Murray factor, those challenging the application of a law
have the burden of establishing that challenged provisions infringe on their religious
autonomy or require conduct inconsistent with their religious beliefs. Shagalow v. Minn.
Dept of Human Servs., 725 N.W.2d 380, 390-91 (Minn. App. 2006), review denied
(Minn. Feb. 28, 2007). To constitute such a burden, the challengers must establish that
the risk of interference with religious beliefs or practice is real and not remote. Hill-
Murray, 487 N.W.2d at 866. Religious institutions can be required to comply with
statutes of general application, and the focus is on whether compliance requires a change
in religious conduct or philosophy. Rooney v. Rooney, 669 N.W.2d 362, 369 (Minn.
App. 2003), review denied (Minn. Nov. 25, 2003).
(a) Church Building; Reasonable Request Alternatives
Under the statute, two options are prescribed for private establishments that wish
to communicate their preference that visitors refrain from carrying guns. They must
either (a) post a conspicuous sign at every entrance that states the operator of the
premises BANS GUNS IN THESE PREMISES, and each sign must conform to
specific statutory requirements on typeface, size, color, and placement, or (b) personally
inform the person that guns are prohibited in the premises and demand[] compliance.
Minn. Stat. 624.714, subd. 17(b)(1)(i)-(ii) (2006). Even after making a reasonable
request that guns not be brought onto the premises, and even if that request complies
precisely with the terms of the statute, the owner or operator of a private establishment
must also order a person who refuses to comply to leave the premises, before that
person can be prosecuted for petty misdemeanor trespass. Minn. Stat. 624.714, subd.
17(a). In addition, the gun possessed by the trespasser is not subject to forfeiture. Id.; cf.
Minn. Stat. 609.531, subds. 1(b), 4 (2006) (weapons subject to forfeiture).
(i) The Sign Provision
The state contends that the first optionposting signs at every entrance to the
church premisesconstitutes only a de minimis burden and does not force the churches
to change their religious conduct or philosophy. The state presented no evidence to the
district court to establish that the use of signs at every entrance would have no impact on
protected religious beliefs. Instead, the state argues that the sign provision is religiously
neutral and presents no greater burden than public welfare laws, such as those requiring
exit signs and the allowance of seeing-eye dogs.
But the uncontroverted affidavits before us establish that the sign provision does
compel churches that wish to exclude firearms to act in a manner that is inconsistent with
their religious beliefs by requiring that they place specific, conspicuous signs at every
entrance to the church. The churches affidavits also establish that they adhere to a
philosophy of welcoming visitors to a place of sanctuary and that compelling the use of
specific prohibitory language is inconsistent with their religious beliefs.5 None of the
evidence shows that exit signs or signage related to persons with disabilities requires any
5 As previously stated, appellant does not challenge the sincerity of the churches beliefs
in nonviolence. We note that not all churches may share those beliefs.
change in the churches religious conduct or philosophy, is inconsistent with any
religious belief, or would be immediately apparent to all entering the churches front
doors in the same manner as the signs at issue. The analogy is not persuasive.
The state also argues that the churches use of alternative signs demonstrates that
the statutory provision does not substantially burden the exercise of religious beliefs. The
record discloses that Edina posted a sign that reads: Blessed are the peacemakers.
Firearms are prohibited in this place of sanctuary. The state argues that the churches
could easily comply with the law by inserting Edina Community Lutheran Church bans
guns in these premises between the first and second sentences of the existing sign.
However, the statute requires very specific language; even the alternative proposed by the
state appears to violate the sign provision. See Minn. Stat. 624.714, subd. 17(b) (1)-(3)
(mandating the use of specified language and typeface and establishing requirements as
to color, size, and placement of sign), (f) (providing that this statute sets forth the
exclusive criteria for notifying permit holders that otherwise lawful firearm possession
is not allowed in a private establishment).
The Minnesota Supreme Court has recognized that the compelled use of a specific
warning, whose color and meaning are mandated by the state, may sometimes be
antithetical to sincerely held principles of religious faith. Hershberger, 462 N.W.2d at
396. The fact that religious adherents are willing to convey a warning or message on the
same subject, using different methods or means of communication, did not preclude the
supreme court in Hershberger from finding that the state-mandated slow moving vehicle
symbol at issue substantially burdened religious freedom. Id. (declining to reconsider
court determination that sincere religious beliefs of the Amish precluded use of statemandated
symbol and court rejection of a proposed less-restrictive alternative based on
use of reflective tape with lighted red lanterns). Similarly, the willingness of
respondents to convey their views about the possession of guns on church property
through alternative methods does not render the compelled notice provisions a minimal
burden on sincerely held religious beliefs.
(ii) The Personal Notification Provision
If a church elects not to post signs that comply with the statute at every entrance, it
may satisfy the statutory requirement of making a reasonable request to refrain from
bringing guns onto the premises by personally inform[ing] the person that guns are
prohibited in the premises and demand[ing] compliance. Minn. Stat. 624.714, subd.
17(b)(1)(ii). Given the number of entrances to church buildings, stationing
representatives of the church at every door to speak with every visitor about the gun ban
may well be unrealistic or, at the very least, a burden on the churches.
The state asserts that the statute does not require individual oral notice and
proposes that churches call their members, send letters and e-mails, or place notices in the
church bulletin. The states proposed alternatives to face-to-face contact are
troublesome. At the outset, it is not clear that the states proposed alternatives are
consistent with the statute. The statute requires that the churches agent personally
inform[] others. Id. Mailed or published notice is not recognized as an alternative.
Phone calls, letters, and e-mails would reach only regular members or attendees who
have chosen to provide contact information, and will not provide the statutorily required
personal notice to first-time or casual visitors.6 To ensure effective notice, church staff,
members, or volunteers would still have to monitor every church entrance and identify all
visitors, verifying that they have previously received notice or personally informing them
of the churches policy on guns. This would be inconsistent with the churches stated
mission of providing a welcoming and open place of sanctuary and worship.
The state also suggests that churches announce their gun policies prior to or at the
beginning of services, asserting that this would not constitute a significant burden
because other announcements are often made at that time regarding the birthdays of
members and upcoming community events. Such an announcement may not reach those
who arrive late to services, parents tending to fractious children or assisting with Sunday
school, and those who are inattentive. Even assuming that a general announcement
would satisfy the statutory requirement that the person having a gun be personally
informed of the policy, the suggestion that religious leaders incorporate a state-mandated
message about gun possession into every worship service is constitutionally troublesome
because the record establishes that the message is inconsistent with the churches
religious philosophy.
6 The state asserts that Utah is similar to Minnesota in not having a statutory ban on the
possession of guns on church property. But Utah specifically allows churches and places
of worship considerable flexibility in communicating their preferences regarding the
possession of guns on church property. Churches may give personal notice, post signs
that are reasonably likely to come to the attention of those entering, make an
announcement during services, publish notice in a bulletin or newsletter, or publish a
notice in a newspaper of general circulation in the county in which the house of worship
is located or . . . has its principal office . . . . Utah Code. Ann. 76-10-530(2) (West
2007). In fact, Utah affords the same flexibility regarding the provisions of notice to both
churches and those in lawful possession of private residences. Id.
We agree with the district court that the record establishes that the personal notice
provision significantly burdens the sincerely held religious beliefs of the respondent
churches. We need not determine whether all religious organizations would be similarly
burdened by enforcement of the statutes or whether requiring personal notice could be
permissible on church property not used for worship or religious purposes.
(b) The Parking Area Provisions
The 2005 Act provides that [t]he owner or operator of a private establishment
may not prohibit the lawful carry or possession of firearms in a parking facility or
parking area. Minn. Stat. 624.714, subd. 17(c). Similarly, while churches, as
employers, can establish policies restricting the possession of firearms by employees
acting in the course and scope of employment, employers cannot prohibit the carrying or
possession of guns by employees in privately owned parking lots or facilities. Id., subd.
18(a), (c).
Evidence submitted by the churches established that parking areas on church
property serve an important role in their religious missions. The parking areas of
respondent churches are adjacent to their places of worship and are used for worship
services, weddings and funerals, religious education classes, prayer vigils, fundraising,
and other church-approved events. There was no evidence that the respondent churches
charge parking fees or operate these parking areas as commercial ventures. The state
argues that the statutory requirement that permit holders be allowed to store guns in their
vehicles while on church property does not require the churches to change their religious
conduct or philosophy. The state proposes a functional test that would allow churches
to ban guns from parking areas during worship services, but not when these areas are
used solely for parking.
The states effort to reconcile both state and religious interests is not consistent
with the language of the statute. The statute prohibits the churches from banning guns in
its parking areas, without regard to the nature of the activities being conducted there
even if those activities include worship services. Minn. Stat. 624.714, subds. 17(c),
18(c). Furthermore, the proposed test would create an additional burden for churches
(and, potentially, for the courts), because it would require that the purpose of each
function be examined to determine its connection to the churches religious missions, and
whether guns could be temporarily banned from parking areas. State monitoring of the
use of church property creates a substantial risk of interference with religious activities
and philosophy. Existing caselaw does not support placing the state in the position of
second-guessing a churchs determination that, for example, a car wash held by a youth
group to raise funds for mission work is sufficiently connected with the churchs
religious mission to justify a temporary gun ban in the church parking lot.
The district court expressed its concern that the statutory provisions limiting a
property owners control over privately-owned parking areas significantly alters and
diminishes the rights of property owners. Although one of the fundamental elements of
property rights is the right to exclude others and the governments power to take that
right without compensation is limited, see Kaiser Aetna v. United States, 444 U.S. 164,
179-80, 100 S. Ct. 383, 392-93 (1979), we do not base our decision on concepts related to
property ownership. And we need not consider whether the statutory limits on banning
guns in parking areas would similarly burden religious freedom if applied to commercial
parking facilities owned by churches or parking areas wholly unrelated to religious
(c) The Tenant Provision
The state challenges the district courts conclusion that barring a landlords ability
to restrict the lawful carry or possession of firearms by tenants or their guests is
unconstitutional as applied to tenant-used portions of church premises. Minn. Stat.
624.714, subd. 17(e).
We presume that the restriction is intended to protect tenants and guests who have
complied with the statutory provisions for obtaining permits to carry firearms and who
are conducting themselves lawfully. The sincerely held religious beliefs of a landlord
sometimes require an exemption from laws designed to protect the rights of tenants and
potential tenants, especially if those affected are not members of constitutionally
recognized classes. See State by Cooper, 460 N.W.2d at 10-11 (holding that landlord
whose sincere religious beliefs were inconsistent with premarital cohabitation was
entitled to exemption from states enforcement of human rights act prohibiting
discrimination based on marital status). The record establishes that the respondent
7 See United States v. Lee, 455 U.S. 252, 261, 102 S. Ct. 1051, 1057 (1982) (stating that
followers of a particular sect may sometimes be subject to statutory schemes which
are binding on others when they enter into commercial activity as a matter of choice,
notwithstanding the limits of their own conscience and faith).
churches serve as landlords for licensed child care, homeless services, and various
community organizations and programs operating on church property. The inability to
control whether tenants or their guests possess guns on church property burdens the
religious conduct of the churches because they are denied the opportunity to limit the use
of the actual church premises to tenants whose operations are consistent with the
churches commitment to nonviolence and their opposition to the carrying of guns.
These are the same facilities where religious services are conducted. Thus, we conclude
that the challenged provisions relating to landlords significantly burden the churches
sincerely held religious beliefs and their right to religious freedom under the Minnesota
3. Whether the State Interests Promoted by the Challenged Provisions are
Overriding and Compelling
Because respondent churches have established that the challenged provisions
significantly burden their exercise of religious beliefs, the burden now shifts to the state
to demonstrate the existence of compelling and overriding governmental interests that
may, under some circumstances, outweigh the important interest in preserving religious
liberty. See Hill-Murray, 487 N.W.2d at 866. The state contends that recognizing an
exemption for the churches will affect the states interest in (a) regulating the
fundamental, individual right to keep and bear arms; (b) increasing public safety by
allowing citizens to protect themselves against violent crimes; (c) protecting the
8 The churches did not file a notice of review, so we do not address the district courts
determination that off-site property owned by churches and used for commercial
purposes unrelated to religious missions would not fall within the exemption.
fundamental right to travel; and (d) ensuring clarity and uniformity in notices about the
banning of guns.
Under article I, section 16, [o]nly the governments interest in peace or safety or
against acts of licentiousness will excuse an imposition on religious freedom under the
Minnesota Constitution. Hershberger, 462 N.W.2d at 397. Even when public safety is
at stake, the blanket denial of a religious exemption is not appropriate unless the
government can establish that the affected religious practices are specifically
inconsistent with public safety. Id. at 398. In Hershberger, the court specifically
rejected the states assertion that public safety required the uniform use of a statedesignated
symbol to warn other drivers about slow-moving Amish buggies, concluding
that the competing values of freedom of conscience and public safety could be achieved,
despite the recognition of an exemption based on religious beliefs. Id. at 399.
The legislature has declared that the statute furthers a compelling state interest in
regulating the fundamental, individual right to keep and bear arms.9 Minn. Stat.
624.714, subd. 22 (2006). More specifically, the state contends that the purpose of the
law is to protect citizens by allowing them to carry firearms to deter and defend against
9 The 2003 and 2005 Acts declare that they are necessary to regulating the rights of
individuals to keep and bear arms as guaranteed by the Second Amendment of the United
States Constitution. Minn. Stat. 624.714, subd. 22 (2006). The state has not argued
that the permanent injunction affects any Second Amendment rights. We are aware of
the controversy regarding the proper interpretation of the Second Amendment and the
pendency of an appeal on the extent to which the amendment guarantees individual rights
before the United States Supreme Court. Parker v. D.C., 478 F.3d 370 (D.C. Cir. 2007),
pet. for cert. granted, 128 S. Ct. 645 (U.S. Nov. 20, 2007) (No. 07-290). We need not
address that issue and we do not anticipate that a decision by the Supreme Court will
affect our consideration of the states challenge to the injunction granted in this case.
violent behavior. But the state presented no evidence in the district court that denying an
exemption to religious institutions would result in the victimization of citizens at church
functions, in church parking lots, or in church building areas used by tenants. The state
therefore did not show that religious practices, including the religious-based exclusion of
weapons from church property and activities, are actually inconsistent with public
safety as the standard articulated in Hershberger demands. See Hershberger, 462
N.W.2d at 398. Some might argue that because conflicts over religious differences have
occasionally led to volatility and violence, guns should be banned on church property.
Others might argue that churchgoers are less likely to be targeted by those who disagree
with their views if there is at least the possibility that congregants are armed. We need
not decide which view is more persuasive, because the record before us simply does not
include any evidence that permitting these respondents to ban guns on church property is
inconsistent with the articulated state interest in public safety. Accordingly, we conclude
that the states interest in public safety does not outweigh the churches right to freely
exercise their religious beliefs.
The state also asserts that exempting churches from the law will burden the
fundamental right to travel, claiming that the right to possess a firearm in a parking lot is
crucial to travel. But the record establishes that on-street parking is available near both
churches, and there was no evidence establishing that those wishing to visit the churches
would have no alternative to the church parking lots. We note that the states argument is
also inconsistent with the statutory exemption for the lawful possessors of private
residences, who are free to prohibit firearms and provide notice of their preference to
visitors in any lawful manner. Minn. Stat. 624.714, subd. 17(d). If the fundamental
right to travel is not violated by that exemption, it is unlikely to be violated by
recognizing an exemption for church property.
Finally, the state asserts that the statute promotes a compelling interest in ensuring
clarity and uniformity in the communication of messages about where guns are
prohibited. A comparable argument concerning the use of uniform warning symbols was
rejected in Hershberger, 462 N.W.2d at 399, and the argument is further undercut by the
fact that uniformity is not required when lawful possessors of private residences
communicate their preference that guns be excluded, when employers communicate their
policies regarding the carrying of firearms by employees while acting in the scope of
their employment, or when public postsecondary institutions communicate their policies
about the carrying of firearms by students on school property. See Minn. Stat. 624.714,
subds. 17(d), 18. As a result, we conclude that the state failed to demonstrate that any
compelling and overriding governmental interest promoted by the challenged provisions
is significantly affected by recognizing an exemption for the churches.
4. Whether the 2005 Act Uses the Least Restrictive Means to Achieve the State
The final Hill-Murray factor considers whether the statute uses the least restrictive
means to achieve the state interests. The district court agreed with the churches that a
religious exemption is the least restrictive means to accomplish the goals of the 2005 Act
without burdening freedom-of-conscience rights.
The state presented no evidence that the churches communication, in whatever
manner and language they deem appropriate, of the policies they have adopted against the
carrying and possession of guns would not be an effective way of accommodating the
competing public interests and religious liberty. The record indicates that more than 30%
of the states with right-to-carry laws have recognized exemptions for religious
institutions. Respondent churches have identified other possible means of achieving the
states interest in protecting those who are not armed, including increased police patrols.
But because the state in this case, as in Hershberger, failed to provide a record which
demonstrates that both the constitutional value of freedom of conscience and the
interests intended to be promoted by the statute cannot be achieved through the
exemption sought by the challengers on religious grounds, we conclude that the state
failed to establish that the challenged provisions constitute the least restrictive alternative.
See Hershberger, 462 N.W.2d at 399.
The second issue is whether the 2005 Act violates the churches right to freedom
of association under the First and Fourteenth Amendments to the United States
Constitution.10 The district court concluded that the 2005 Act forces churches to
associate with people who wish to carry firearms on religious property by prohibiting
churches from banning the possession of firearms in parking facilities and leased spaces.
10 Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903 (1940), applies the First
Amendment to the states by virtue of the Fourteenth Amendment.
It is axiomatic that a state court may interpret its own state constitution to offer
greater protection of individual rights than does the federal constitution. State v. Fuller,
374 N.W.2d 722, 726 (Minn. 1985); see also Oregon v. Hass, 420 U.S. 714, 719, 95 S.
Ct. 1215, 1219 (1975). State courts are, and should be, the first line of defense for
individual liberties within the federalist system. Fuller, 374 N.W.2d at 726. Both Hill-
Murray and Hershberger were based on the interpretation of the Minnesota Constitution
provisions guaranteeing religious liberty, rather than the First Amendment of the United
States Constitution. Hill-Murray, 487 N.W.2d at 864; Hershberger, 462 N.W.2d at 397.
Because our affirmance of the exemption recognized by the district court is based on
independent and adequate state grounds, we find it unnecessary to address the district
courts grant of injunctive relief on federal constitutional grounds.
The state argues that the district courts permanent injunction confers a special
benefit on religious institutions and constitutes an establishment of religion in violation of
article I, section 16, of the Minnesota Constitution and the First and Fourteenth
Amendments to the United States Constitution. Establishment and free-exercise claims
are sometimes related, but when a law of general application is alleged to burden the
rights of a religious institution, the issues are most appropriately analyzed under the free
exercise clause and a claim that is framed in terms of the Establishment Clause may
actually [be] a free exercise question. Hill-Murray, 487 N.W.2d at 863. Nonetheless,
we will address the states argument.
No law shall be made respecting an establishment of religion, U.S. Const. amend.
I, and no preference may be given by law to any religion or form of worship, Minn.
Const. art. I, 16. Exempting churches and church property from state laws that are
otherwise generally applicable does not give rise to a violation of the Establishment
Clause so long as no one religion is favored over others and none suffer[] interference.
State v. Am. Fundamentalist Church (In re Collection of Delinquent Real Prop. Taxes),
530 N.W.2d 200, 205 (Minn. 1995) (quoting Walz v. Tax Commn, 397 U.S. 664, 677, 90
S. Ct. 1409, 1415 (1970)) (holding that tax exemption for church property does not
violate Establishment Clause). The state has not identified any Minnesota case finding an
Establishment Clause violation in analogous circumstances where an injunction has been
granted to prevent enforcement of a state statute against particular plaintiffs.
If we assume that the injunction is analogous to a state-imposed mandate, we
apply Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), to determine whether it
violates the Establishment Clause. See In re Rothenberg, 676 N.W.2d 283, 292 (Minn.
2004) (applying the Lemon standard to evaluate a claim that supreme court rules
requiring lawyers to take classes directed at the elimination of bias violated the
Establishment Clause). To survive this challenge, the exemption and injunction must
(1) have a secular purpose; (2) neither advance nor inhibit religion as their primary effect;
and (3) not foster excessive governmental entanglement with religion. Lemon, 403 U.S.
at 612-13, 91 S. Ct. at 2111. When the government acts with the ostensible and
predominant purpose of advancing religion, it violates that central Establishment Clause
value of official religious neutrality, there being no neutrality when the governments
ostensible object is to take sides. McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844,
860, 125 S. Ct. 2722, 2733 (2005).
The state has not established that the district court was motivated by a desire to
advance the religious beliefs of respondents. Controlling caselaw required the district
court to examine the impact of the challenged provisions on sincerely held religious
beliefs, which it did, and to balance the constitutional rights of the respondents with the
articulated state interests promoted by the challenged provisions. See Hershberger, 462
N.W.2d at 399 (requiring balancing of competing interest[s]). The determination
that respondents are entitled to an exemption that is analogous to the exemption already
afforded to possessors of private residences places them on equal footing; it does not
improperly favor or advance religion.11 The exemption also avoids government
entanglement with religion because the government need not monitor church policies on
the carrying of weapons, the methods by which churches communicate with members
and visitors on the topic, or the degree to which particular church activities are essentially
Because the district courts limited grant of injunctive relief properly balanced the
states interest in general enforcement of the law with protecting religious freedoms
guaranteed by article I, section 16, we conclude that this relief does not impermissibly
favor religious institutions or constitute an improper establishment of religion.
11 As previously noted, possessors of private residences are free to ban guns on their
property, including parking areas, and to communicate their preferences in any lawful
manner. Minn. Stat. 624.714, subd. 17(c). The district courts injunction extends to
appellants similar protections.
The final issue is whether the 2005 Act, as applied to churches, violates the
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.
RLUIPA prohibits governmental entities from imposing or implementing a land
use regulation that treats a religious assembly or institution on less than equal terms
with a nonreligious assembly or institution or that unreasonably limits religious
assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. 2000cc(b)(1),
The term land use regulation means a zoning or
landmarking law,12 or the application of such a law, that
limits or restricts a claimants use or development of land
(including a structure affixed to land), if the claimant has an
ownership, leasehold, easement, servitude, or other property
interest in the regulated land or a contract or option to acquire
such an interest.
42 U.S.C. 2000cc-5(5). Congress provided for a broad construction of RLUIPA,
stating that the law shall be construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by the terms of this chapter and the
Constitution. 42 U.S.C. 2000cc-3(g).
12 Landmarking laws generally involve the regulat[ion] and restrict[ion of] certain areas
as national historic landmarks, special historic sites, places and buildings for the purpose
of conservation, protection, enhancement and perpetuation of these places of natural
heritage. Albanian Associated Fund v. Twp. of Wayne, __ F.Supp.2d __, __ 2007 WL
2904194, *7 (D.N.J. 2007).
The threshold question is whether the 2005 Act qualifies as a zoning or
landmarking law under the statute. A zoning law is one that regulates building
development and use of property. Mendota Golf, LLP, v. City of Mendota Heights, 708
N.W.2d 162, 172 (Minn. 2006); Advantage Capital Mgmt. v. City of Northfield, 664
N.W.2d 421, 426 (Minn. App. 2003). A statute that imposes land-use restrictions that run
with the land may also be considered a zoning law. Orme v. Atlas Gas & Oil Co., 217
Minn. 27, 32-33, 13 N.W.2d 757, 761 (1944). Blacks Law Dictionary describes
zoning as [t]he legislative division of a region . . . into separate districts with different
regulations within the district for land use, building size, and the like. Blacks Law
Dictionary 1649 (8th ed. 2004). The 2005 Act does not impose land-use restrictions or
regulate the development of church-owned property, and it does not single out religious
institutions or activities.
The legislative history of RLUIPA is instructive in determining the scope of what
Congress intended to include as a zoning law. Congress enacted RLUIPA in order to
address a widespread pattern of religious discrimination in land-use regulation. 146
Cong. Rec. 6687-90 (Jul. 13, 2000); see also Roman P. Storzer & Anthony R. Picarello,
Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional
Response to Unconstitutional Zoning Practices, 9 Geo. Mason L. Rev. 929, 945-46
(Summer 2001). Evidence was presented to Congress of land-use regulations that
particularly affect religious institutions, including laws prohibiting the construction of
places of worship, an ordinance requiring religious institutions (only) to obtain a ,000
permit before supplying food to the homeless, a citys permitting process that resulted in
the refusal to allow Jewish prayer meetings but not school meetings and book clubs,
locally imposed limitations on permissible operational hours, and a city directive limiting
occupancy of a church to 70 people, even though the building seated 500 people. 146
Cong. Rec. S7774, S6689-90 (Jul. 13, 2000).
The challenged provisions of the 2005 Act interfere with some of the traditional
rights of property owners to exclude others, but the act does not regulate the development
or use of church property in any way that is analogous to zoning laws. The churches are
still free to use and develop their property for all purposes authorized under existing
zoning and land-use regulations. They are not being required to alteror being
restrained from alteringthe structural or architectural design of any building. The
churches clearly oppose the challenged provisions, but there is no analogy to the hurdles
imposed by requiring that additional permits be obtained from the government,
prohibiting religious services and gatherings, or limiting attendance at church functions.
We conclude that the challenged provisions are not properly characterized as land
use regulations, within the meaning of RLUIPA, and we therefore reverse the grant of
injunctive relief to the extent that it is based on RLUIPA.
Because we conclude that the district court did not err in finding that certain
provisions of the 2005 Act violated the churches freedom-of-conscience rights, we
affirm the district courts grant of a permanent injunction on state constitutional grounds
as applied to the churches property, including related parking areas used for religious
activities. We reverse the grant of injunctive relief to the extent it is based on RLUIPA
because the 2005 Act may not properly be characterized as a zoning law.
Affirmed in part and reversed in part.


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