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    03.07.16 Professor Nelson Tebbe on ‘The Religious Freedom Loophole’
    Professor Nelson Tebbe

    Can a sex club become a church, legally? Professor Nelson Tebbe was recently asked this question for a public radio story "The Religious Freedom Loophole," produced by the Center for Investigative Reporting.

    The background: A sex club, or "swingers club," had long operated in a low-income neighborhood in Nashville, Tennessee. Over time, however, the neighborhood began to gentrify, and property values increased. After the club's parking lot, which it had been renting, was bought up as part of a wave of development, club management decided it had to move.

    With the profits from the sale of its property, the club purchased a building in a nearby suburb. All of the local zoning laws permitted clubs, and the owners began planning to renovate the space. There was only one problem -- the club's new neighbor was a prominent Christian private school. The school's leaders vowed to stop the club, and they successfully lobbied the local government to change the zoning law to exclude the club. 

    That was when the club's lawyer, also a club member, hit upon an idea: they would reframe the club as a church. Powerful laws protect religious congregations against land use restrictions. So they redrew the renovation plans, labeling "Dungeon 1" as "Choir Room, "Dungeon 2" as the "Handbell Room," and so forth. 

    Judges usually refuse to question whether one's faith really requires a particular practice.

    “Courts believe it would be unfair or in some ways wrong for the government to decide that a particular theology does or doesn’t require a particular action,” Tebbe said.

    However, they are quite willing to question one's sincerity when he or she claims that his or her secular interests too conveniently dovetail with their sacred concerns. And that legal rule might have posed real problems for the club.

    “When a witness comes before the court, courts feel that they’re able to judge the credibility of a witness, and they do all the time,” Tebbe said.

    Tebbe said that if he were to lawyer for the club, he probably would not have advised the management to push the church idea too hard – it looks awfully convenient to suddenly become a religious institution when your back is against the wall. 

    Listen to “The Religious Freedom Loophole.”