Every so often RLUIPA Defense feels the need to expand its reporting horizons. We usually stick to run-of-the-mill, pending or threatened litigation related to religious-land uses and RLUIPA. Sometimes we stray a bit and review strictly First Amendment cases (Satanic Temple at it Again). In this story, there was no permit denial and the applicant’s plans are moving forward to completion. What comes next is the interesting part.

The swingers’ club turned church has garnered a lot of press coverage over the last few weeks—and who can blame the press given the extraordinary opportunity for sexy-pun headlines (i.e. “Sex Club Seeks Nashville Blessing”). For those unfamiliar with the case, here are the basic facts. The Social Club operated in downtown Nashville, providing an opportunity for couples and singles to “explore their sexual fantasies with and around each other.” According to one source, the club provided many amenities, including private beds, love swings, group play areas, a “Sybian” room, and “the dungeon.”

Feeling the crunch of a rapidly expanding downtown real estate market, The Social Club decided to sell its former location for large profit and relocate to Madison, a near-by suburb. The Social Club thought it found the perfect new location in a 22,000 square foot, former medical office building, neighboring the Goodpasture Christian School and New Jerusalem Baptist Church.

Madison residents responded to the plan with a predictable NSIMBY (No Swingers in My Back Yard) reaction. Seeking a legislative solution, opponents advocated for changes to the county zoning code as well as state law. Tennessee Governor, Bill Haslam signed HB 480 (Public Ch. 130) into law last month, which bans private clubs from locating within 1,000 feet of a child care center, school, public park, or place of worship. A “private club” is defined as “a club or organization that operates for the purpose of providing members of the club with the opportunity to engage in or view live specified sexual activities.” A similar bill is under consideration to amend the Nashville and Davidson County Zoning Code.

Not deterred by the uproar, The Social Club had a revelation—apply for approval to operate as a Church! In place of The Social Club, the United Fellowship Center (the “Fellowship”) now seeks all required building and occupancy approvals. Plans submitted to the county by the Fellowship replace the game room with a fellowship hall; private bedrooms with bride and groom dressing areas; and two dungeon rooms with choir and handbell areas. See a floor plan comparison here.

Religious Institutions are permitted by right in the county’s non-residential zones. Metro Zoning Administrator Bill Herbert reported that, so long as everything is up to code, his department will grant the required approvals—the zoning department takes applicants at their word. If the Fellowship is not actually operating as a church, the county may then take enforcement action.

The lawyer for United Fellowship Center, Larry Roberts, noted that the Fellowship has tenets of faith just like the Ten Commandments—sort of—“Do not steal. Do not lie. Do not cheat. Do not commit any act that will be harmful to others. Do not commit adultery without the knowledge and consent of your spouse.” Members of the Fellowship may bring their own alcohol to services, but no sexual intercourse is allowed at the property, Roberts noted. If members wish to “hook-up” they must do so off campus.

Of course this case raises the question, when is it appropriate for a municipality to question the sincerity of an organization’s religious belief? The Huffington Post recently reported on the case and provided a helpful primer on Supreme Court precedent regarding the sanctity of religious sincerity. A Stanford Law Review article provides additional background. As both articles note, U.S. courts have a long history of looking past potential religious pretext in order to question whether a litigant’s professed religious beliefs are sincere. The same is true in the RLUIPA context, and the sincerity of belief is regularly an issue in prisoner cases.

But is the question less about the sincerity of belief and more about what actually constitutes religion? In the Huff Post article noted above, Kutter Callaway, assistant professor of theology and culture at Fuller Theological Seminary in Pasadena, California, similarly speculates: “What is a church, what’s the point of it, and why have we as a society said religious groups are exempt from things other groups aren’t? Those are really core questions. We don’t get to them, because we founder upon the rocks of politics and legalese.”

Will the swingers bring to the forefront a potentially more alluring policy debate—what type of institutions are granted special, extra-Constitutional protections and privileges under state and federal law and why? At what point should such privileges be reexamined? It’s safe to say that the majority of Americans wouldn’t favor granting organizations like The Social Club additional statutory protections, but what about organizations like the Sunday Assembly, which describes itself as “non-religious community that meet regularly to celebrate life”?

Potential answers to these questions are well beyond the purview of RLUIPA Defense, but when a sex club turns church, there’s at least a good reason to ponder them.