From San Deigo to West Palm Beach, and from Evanston to Houston, religious practices from small group home Bible study to Mega-Church construction are being challenged by municipal officials through frequently unconstitutional or illegal application of zoning codes and practices.

In the last few years both San Deigo, California, and Gilbert, Arizona, have attempted to bar home Bible study from residential neighborhoods. San Deigo tried to bar home Bible study without a costly special use permit. Gilbert, Arizona, a community of 200,000 sought to ban religious gathering "regardless of their size, nature or frequency" from residential neighborhoods.

The attempts to regulate home Bible study are the most disturbing of a new wave of laws, because they single out religious activity for discrimination under circumstances where similar non-religious activity would be freely permitted. Small groups can meet in residential areas to discuss or study politics, or football, but not the Bible.

Other communities have adopted or considered a range of tactics to inhibit free exercise of religion.  Burbank, Il., tried to bar churches from commercial areas after a small hispanic congregation purchased a restaurant for $900,000 and sought to convert it to religious use. In Evanston, Indiana, it was special use permits to bar store front churches from business or commercial areas. In other communities like Houston, Tx., special drainage fees; or like Mission, Kansas, a transportation utility fee.

Churches may find themselves forced out of commercial areas because local governments fear they reduce the local tax base. While, residential neighborhoods question churches because of impacts like increased traffic, and noise.

All of these efforts share a common flaw. They unconstitutionally burden the free exercise of religion, and violate the  Religious Land Use and Institutionalized Persons Act (RLUIPA) a federal law enacted in 2000 to protect religious houses of worship from overreaching officials and improper application of zoning laws. Sometimes the efforts also violate state laws.

RLUIPA prohibits any substantial impacts on religious exercise unless the government can demonstrate a compelling state interest, and demonstrate that the government has adopted the least restrictive means of furthering that interest.

Faced with the threat of a RLUIPA law suit West Palm Beach, Florida recently backed off a zoning measure that would have restricted the size and seating capacity of churches. Yet, RLUIPA lawsuits are a dual edge sword. They are expensive and burdensome for churches as well as municipalities.

The irritated response of one local Florida official reflects both the attitude of many local officials towards regulation and their ignorance and lack of respect for first amendment safeguards. She was annoyed and thought it was unfair churches could not be regulated like any other use with a similar impact. Increasingly, zoning officials express concern that churches have practical impacts on communities similar to business impact.

But religion is legally and constitutionally different under our system from commerce. Government can regulate business freely and with as little as a rational basis. Government is granted broad discretion under that standard. A reviwing court just has to see a rational link between the government's purpose and the means it choses.

But, governmental imposition on religious practices are judged by a stricter standard and can only be regulated if the government has both a compelling state interest, and employs the most narrow means to achieve its ends.

Despite the clarity of the constitutional standard, Congress had to enact RLUIPA to insure the safeguards were broadly respected and liberally applied.

Megachurches, defined as non-Catholic places of worship with 2000 or more worshipers, are a recent development. There are 842 megachurches in America with 3 million church goers. The average megachurch has 3646 members and $4.8 million in annual income.

There were only 10 megachurhes in 1970, 250 in 1990, and 740 in 2003. It not just a matter of size. Altough the size of the larger megachurches is impressive. The top ten are the size of small cities with congregation of 15,000 to 25,000 members and up. Megachurches sponsor a host of activities: day care centers, senior citizen activities, schools, investment education; 47 per cent sponsor conferences; 44 per cent use radio; and 38 per cent television.

Luisa Kroll wrote in Forbes that megachurches were megabusiness and that pastors functioned as CEOs. She also noted trands such as professional for profit growth consultants for churches. She questioned whether churches should be accorded traditional protections when they increasingly used market methods.

This attitude shows an almost total lack of appreciation for free speech, freedom of association, and freedom of religion. It's up to religious groups and not the government to decide on what forms they take, or in what numbers they gather to worship.

Maybe, it was easier to respect free exercise of religion when churches were in neighborhoods of mostly homogeneous people, and churches were frequently small, comfy, and within walking distance of home. Yet, there would be no need for a free exercise clause unless it was intended to compel respect for diverse and sometimes disturbing practices.