Civil rights attorney Mark Merin is known for many things in Sacramento. A defender of the homeless and helpless and the convicted. A ringleader of the “Safe Ground” movement. A perpetual thorn in the side of elected officials with big titles. All of that.
But being religious? That’s not what comes to mind.
So, when Merin declared last week that he plans to test the city’s anti-camping law by putting a tent city for the homeless on one of his vacant downtown lots, I wasn’t surprised. But I was perplexed about how he plans to accomplish it: a litigation strategy based on federal religious freedom laws.
“We have the backing of the Interfaith Council, which has 80-some congregations under its wing. It is a sponsor – the sponsor of our first tent city,” Merin said. “That gives us that legitimacy.”
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What in the world does religious freedom have to do with tent cities?
On the surface, it sounds crazy. The same kind of crazy that too many state legislatures have trotted out over the past year.
Hundreds of bills that open the door to discrimination against gay people have been introduced in Republican-leaning states – and at least 100 bills used religious freedom as a justification, according to the American Civil Liberties Union.
Mississippi, for example, now allows business owners to deny service to gay customers based on their religious beliefs. So, as an escapee from the equally crazy red state of Indiana, you’ll have to forgive my skepticism about religious freedom laws.
But Merin is anything but crazy.
Hundreds of homeless people sleep outdoors every night in Sacramento County, putting them at risk of illness, death, abuse and arrest. Something must be done now. Tiny homes and a triage center will take too long.
Mark Merin, attorney who wants to erect a tent city for the homeless
He has spent his career deftly plotting legal strategies that stick up for the powerless in society – the homeless, mistreated inmates – while simultaneously twisting the arms of the powerful – police, politicians – to do his bidding. Or to do the right thing.
So no one should be surprised that using religious freedom laws to force governments into allowing tent cities is a tested legal strategy.
It dates back at least 15 years to Seattle, when a group of about 75 homeless people asked to set up their tent city in the parking lot of Trinity United Methodist Church.
The small, elderly congregation, believing it was what Jesus would do, agreed. Seattle’s code enforcement division, not giving a damn about Jesus, denied the church’s application for a permit and threatened to fine the congregation $75 a day for refusing to evict the homeless campers.
But instead of giving in, the Trinity United congregation decided to fight back. They planned to appeal, arguing that Seattle was violating the federal Religious Land Use and Institutionalized Persons Act, which protects religious institutions from discriminatory regulations.
Specifically, the law requires government to show it has a “compelling” reason to prevent a church, for example, from using land for religious purposes. That “compelling” reason must amount to a “substantial burden” on the church, and the government must show that the “substantial burden” it wants to impose is the least restrictive way to accomplish its goals.
Think of a rapidly growing mosque asking a city for a variance so it can expand. City officials couldn’t just deny that variance, dooming the mosque to overcrowding, for no other reason than nearby residents are given to Islamaphobia.
Ironically, Congress passed the land-use act out of concern that the 1993 federal Religious Freedom Restoration Act, which forbids government from burdening a person’s religion without a “compelling” reason, would leave people vulnerable to discrimination. Yet, today, it’s RFRA that states are now perverting to let business owners legally discriminate against gay and transgender people in the name of protecting religious beliefs.
But I digress.
In the case of Trinity United, the congregation argued that Seattle officials were preventing the church from doing ministry by refusing to issue a permit for a homeless camp. That argument was never tested in court, though, because the city backed off.
But the legal strategy, using the land-use act as a defense for a church or a synagogue demanding a city permit to host a homeless encampment, has popped up ever since.
In fact, there’s a case from Ventura making its way through the courts now.
It revolves around Harbor Community Church. Ventura denied the congregation a conditional use permit to run a homeless services program on their property. Neighbors had complained that the program was drawing unsavory characters to the neighborhood, which includes a school, a park and a day care center. The church appealed the decision and sued.
The case is now in the hands of U.S. District Court in Los Angeles.
Whether we’ll ever get to this point in Sacramento remains to be seen. There are differences between cases like the one in Ventura and here, namely that Merin is asking to put a tent city on his personal property at 12th and C streets, not the property of a church.
Plus, after years of studying homelessness, the City Council seems poised to finally do something about it – either by creating a community of tiny homes or a triage center to provide around-the-clock emergency services or both.
It seems crazy to thumb one’s nose at the city at such a critical juncture. But this is Merin we’re talking about and he’s not ready to give up on a tent city just yet.
His reasoning is simple: Hundreds of homeless people sleep outdoors every night in Sacramento County, putting them at risk of illness, death, abuse and arrest. Something must be done now. Tiny homes and a triage center will take too long.
He has a point.
So, in typical Merin fashion, he’s pushing the issue. He plans to file for a permit next week. After that, he expects the city to work with him, maybe even suggesting sites that would work better than his lot near Loaves & Fishes. There is no immediate plan to erect tents, but he’s not taking no for an answer.
“The permit process is asking for something that we’re legitimately entitled to,” Merin said, “and then working through how we get it and that’s what I expect we’ll do.”
And if that doesn’t work, well ...
“We do have a litigation strategy if our application is unreasonably denied. We can meet all of the conditions,” he said. “Then the courts (will be) the ones to determine whether we have a right to it.”