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.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.