Opening Church Doors to the Homeless on a Sub-Zero Night Is the Free Exercise of Religion

Dad’s Place of Bryan, Ohio, v. City of Bryan

​The city of Bryan, Ohio, last week successfully prosecuted a local pastor for keeping the doors of his church open for the homeless overnight during minus-5-degree weather.
 
The guilty party is Pastor Chris Avell of Dad’s Place, a church that offers free haircuts and a “warming center” in cold weather for homeless people. The city conducted seven surprise fire-code inspections of the church, before leveling 18 criminal charges against the pastor in a local court.
 
With help from the First Liberty Institute, Pastor Avell is appealing to the federal Sixth Circuit, which has issued a stay. In a filing, Avell describes rough treatment by the city. He learned about the charges against him from a local newspaper. Bryan officials chose to serve the criminal complaints against the pastor in front of his congregation on a Sunday morning just before services began.
 
The city’s case is not without substantive claims. The city charges Dad’s Place with violating municipal fire and safety codes, including blocked exits, electrical outlets that need to be reinstalled, and a lack of a fire suppression system. Defenders of Dad’s Place say that the church in the town center has been targeted and harassed to enforce a widespread not-in-my-back-yard attitude toward the homeless.
 
“Only government officials could say with a straight face that people are safer in the sub-zero temperatures on the street than inside the warmth of a church,” said Ryan Gardner, counsel for First Liberty, which represents Pastor Avell.
 
On the surface, this case appears to be a dispute about enforcing zoning ordinances. But Dad’s Place raises serious issues with the guarantee of free religious exercise under the First Amendment as well as the Ohio Constitution. It also implicates the guarantees of the Religious Land Use and Institutional Persons Act, which among other things mandates strict scrutiny when houses of worship are targeted by zoning laws.
 
Pastor Avell can present a strong case that Dad’s Place is a victim of targeted enforcement of the zoning code and pretextual enforcement of the fire code. But at the core of his case is a lack of appreciation by local and state governments that the charitable function of a church is integral to its practice of religion. In a similar vein, the U.S. Supreme Court is set to decide Catholic Charities v. Wisconsin, in which state bureaucrats decided that charitable activities a diocese has provided for a century to the disabled, the elderly and the poor are not part of the church’s exercise of religion.
 
In Christianity – as in all other major world religions – caring for the outcast, the poor, and the helpless is not a hobby, or a side venture. It is the very practice of – the soul, if you will – of religion. The Sixth Circuit should recognize this. And if it doesn’t, perhaps the Supreme Court will.

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