The swingers recently decided they were ready to move to the suburbs. The suburbs do not appear ready for the swingers. When the club purchased a building next to a Christian school, residents protested and threw zoning problems in its way.
So the swingers have come up with a new plan to short-circuit the zoning static around their relocation: Their new club, they say, is a church — a church for swingers to meet, to mingle and to engage in the regular practice of their faith.
If the city accuses them of running a sham church, the club’s longtime lawyer Larry Roberts says that the Constitution is on their side.
Is it? And what defines a “religion,” anyway?
The answer to that question is complicated — so complicated, it’s occupied U.S. courts for roughly two centuries now.
“They can sue us and say they want an injunction to stop us from operating, and we can say we have some tenets of the church sort of like the Ten Commandments,” Roberts said over the phone. He listed a few.
“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.”
“That one’s a little bit different,” Roberts admitted.
How the swingers sex club became a church
For years, the swingers have been meeting at a nondescript brick building less than a mile south of Music City Center, in an area that once teemed with adult bookstores and gentleman’s clubs hidden in plain sight. Now the neighborhood is gentrifying quickly. Last fall, the group sold their complex for $1.3 million, more than double what they purchased it for in 1998.
They bought an abandoned medical office in a quiet neighborhood north of Nashville called Madison. The 22,000-square-foot space, with private exam rooms that could easily become play rooms, was near perfect — except that it happened to sit between two churches and a posh private Christian academy.
“It’s the biggest bunch of bigots that I would into run into except maybe at a Klu Klux Klan meeting,” Roberts said. “When my clients first began considering this, I said, ‘With this location, you’re going to create a firestorm of controversy.’ ”
They did. Karen Bennett, who represents this neighborhood on the legislative council for Nashville and Davidson County, said that hundreds of parents — more than 400 by her count — came to each of the public hearings a few months ago.
“Madison is a really good, solid, suburban community in Nashville, very family-based,” Bennett said. ”Most people feel like this would be a black eye to have this adult club. It’s not what they want for their community.”
Bennett herself graduated from Goodpasture Christian School, which is across the street from the new club building. She’s concerned about having a club so close to a school. Think of the children, she says.
“[The swingers] seem to think that they would be quiet neighbors, and I don’t think that’s really the case,” she said. “Kids ask questions and they want to know what is going on.”
The neighbors demanded that something be done. “We’re going to pursue that at the highest level legally,” Goodpasture’s president told a local news broadcast in January. “We’re going to pursue it politically. Our goal is for them to never open their doors at 520 Lentz.”
That meant that the townspeople were going to change the rules. When the swingers bought the old medical office, they had made sure that it was legal to hold events there. But Bennett soon introduced a new ordinance amending the zoning laws in Nashville and Davidson County. The swingers’ new property would no longer be able to host private clubs of any kind.
The Metro Council passed that measure in late March. Soon after, Tennessee’s state legislature also unanimously approved a new law prohibiting private clubs where people can watch or have sex from operating within 1,000 feet of a school.
It goes without saying that religious values animate a good deal of the public discourse in Tennessee, where cities are not allowed to have laws protecting gay people from discrimination, and where lawmakers this year sought to make the Bible the state book.
Religious institutions are so powerful and protected in America, reasoned the swingers’ lawyer, that if the club couldn’t beat them — well, perhaps it would join them.
“What is religion to you may not be to someone else; and what is religion to someone else may not be to you,” Roberts said.
According to the club’s new renovation plans, the game room will become the fellowship hall. The north dungeon will be the choir room. The south dungeon will be the handbell room.
There won’t be any sex at this church, Roberts said, but people could gather here, and take the party off-premises. “It may not be what they call a ‘full service’ club, but I think it will fulfill the function,” he said.
Once the operation is up and running, the city might send inspectors to verify that it is acting as a church. It might issue a warrant asking the courts to adjudicate. (In practice, Nashville zoning administrator Bill Herbert said he’s never heard of a case involving “un-traditional types of churches.”)
Roberts said he was the one who counseled the swingers to become a church. He believed that they needed the strong protections and freedoms that the government affords to religious groups.
“It’s something that the government can’t control,” he said. “After all, isn’t that the reason America was established, or one of them?”
A judge can’t divine which gods are real or false …
The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But the Constitution is completely silent on the more fundamental question of what religion actually is.
And centuries of legal debate haven’t resolved matters much. “Courts struggle with this,” said Alan Brownstein, a law professor at UC Davis. “We do not have an accepted working definition of religion in American legal jurisprudence.”
It’s paradoxical, almost. How can a nation so concerned with religious freedom not agree on what constitutes a religion? How can we attach so many protections and privileges to something so legally amorphous?
But religious liberty also implies religious diversity, and religious tolerance. The nation, indeed, was founded in part by refugees of a minority sect. In that spirit, the courts have been incredibly reluctant to rule on whether someone’s religion or religious beliefs are the real deal.
“We’re worried that if we define religion too narrowly, we’ll end up excluding some belief systems that do deserve to be recognized,” Brownstein said. “It’s very hard to come up with a good definition of religion that includes everything we want to be covered and only excludes what we thinks should be excluded.”
On occasions when courts have been forced to render judgement, they often defer to what a person says their religious beliefs are, even if those beliefs are out of the mainstream or idiosyncratic.
“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection,” Supreme Court Chief Justice Warren Burger famously wrote in the majority opinion for Thomas v. Review Board in 1981.
Eddie Thomas was a metal worker and a devout Jehovah’s Witness. In a job application for the Blaw-Knox Foundry and Machinery Co., he listed his hobbies as “Bible study” and “Bible reading.” A year after he joined, the company moved him to a position making tank turrets. Thomas felt this was against his religion. He quit and fought the state of Indiana for unemployment benefits.
Thomas’s case, which ended up at the Supreme Court, hinged on whether his beliefs about pacifism were truly religious in nature. Thomas had struggled to define some of the moral principles of his religion. He admitted in court that his friend, also a Jehovah’s Witness, disagreed that their religion prohibited his employment in the tank turret department. In light of these contradictions, the lower court argued that Thomas’s views were a “personal philosophical choice,” lacking sufficient religious character.
The Supreme Court brushed aside those concerns. “Courts are not arbiters of scriptural interpretation,” Burger wrote, setting a precedent that the legal system would gingerly handle questions of religious validity. So, for instance, the courts have recognized Wiccan covens (there is even one in Memphis); they have ruled in favor of a Santeria group that wanted to sacrifice animals.
In the course of its work, the Internal Revenue Service also has to determine whether religions are valid or not. The IRS gives tax exemptions to churches in part because churches tend to serve the public good through education and charity work. To evaluate a church, it considers a range of criteria: whether the church has a creed, religious services, ordained ministers, religious literature and so forth.
But these are just guidelines, and religious groups will sue if they think they were unfairly snubbed. The Church of Scientology, for instance, battled the IRS for years to gain tax-exempt status. In one famous lawsuit, the Ninth Circuit ruled that Scientology did not deserve tax breaks because it seemed to be organized like a business funneling profits to its founder, L. Ron Hubbard. This violated an IRS rule that says nonprofits need to have some kind of charitable or public service purpose.
That case avoided the much tougher question of whether Scientology was actually a religion — a question that the courts feel ill-equipped to answer. In the end, the matter was not decided in court anyway. As the famous story goes, Scientologists pressured the IRS to the point that it finally changed its mind.
… but can the courts peer into your soul?
And yet, it is also clearly unreasonable for anyone to be able to create a religion or claim newfound religious beliefs just to get special treatment. While courts tend to avoid rendering judgment on anyone’s religion, they are more comfortable ruling on whether someone holds their religious beliefs sincerely.
This is the way that many religion-of-convenience lawsuits are decided, explains James Oleske, a law professor at Lewis and Clark. “In general, courts are very reluctant to question the validity of religious beliefs,” he said. “But they do ask if there really is a good-faith, religious belief that exists — that this isn’t a sham in order for people to get immunity for their secular practices.”
There are several examples of courts denying people religious privileges by calling into question whether they actually believe what they say they believe. For instance, Oleske points to a 2010 New Mexico case involving a couple that created a church around sacrament of marijuana. Citing these religious beliefs, in conjunction with the Religious Freedom Restoration Act, Danuel and Mary Quaintance attempted to defend against criminal marijuana charges.
The Tenth Circuit found theirs to be a flimsy argument. People testified that the Quaintances talked about their marijuana operation as a “business” not as a church. “[T]he record contains additional, overwhelming contrary evidence that the Quaintances were running a commercial marijuana business with a religious front,” judge Neil Gorsuch wrote in the 2010 decision.
At this point, marijuana church arguments are known to be long shots. “We get these fraternities that call us up,” said Eric Rassbach, a lawyer at the Beckett Fund, a religious liberty defense organization. “Some group of guys on a college campus call us up and say: ‘We just invented this new church. Its sacrament is marijuana. Will you defend us?’ ”
“We tell them no, sorry guys, you’re not the first to come up with this idea and you’re going to lose,” Rassbach said.
(Sometimes, though it is rare, such an argument does win. Oleske notes that in 2013, the Minnesota Court of Appeals allowed a Rastafarian to keep his marijuana pipe because it had religious significance to him. The pipe reminded him to “perform what needs to be performed, which is smoking.”)
Some of this may seem bizarre. Judges and juries lack telepathy. How can courts presume to evaluate how deeply someone believes? Who is to say what your intimate relationship to your god is?
The process is difficult, Rassbach concedes, but the courts delve into people’s minds all the time, he said. “Courts cannot decide whether a religious belief is true, but they can decide whether it is truly held. That’s a state of mind question, and courts do that business day in, day out.”
A murder case, for instance, might depend on proving whether someone had intent to kill. A securities fraud case, Rassbach said, asks whether the defendants intentionally deceived investors.
Courts look at evidence to gauge someone’s sincerity. How does someone behave? Do they make effort to adhere to the tenets of their faith? Have they practiced their religion in this way for a long time? How do they talk about their spirituality to their friends and family? And most importantly, might they have some ulterior motive for professing these religious beliefs?
These questions sometimes get muddy. In the Hobby Lobby case before the Supreme Court, the justices had to look at the beliefs of the companies’ religious owners, who refused to pay for employee health insurance plans that included contraceptive coverage. That would go against their religion, the owners claimed.
No one denied that these bosses were devout people — and yet, did they really believe that paying for this kind of insurance violated their religion? After all, they were not directly funding contraceptives — they were several times removed from the behavior that they found unholy. Did they sincerely believe this would be a stain on their conscience?
But the Supreme Court did not treat this as an issue of religious sincerity; this question was treated as an issue of doctrinal interpretation, which is territory that the court treads lightly upon.
“[I]t is not for us to say that their religious beliefs are mistaken or insubstantial,” Justice Samuel Alito wrote for the majority. “Instead, our ‘narrow function … in this context is to determine’ whether the line drawn reflects ‘an honest conviction,’ … and there is no dispute that it does.”
What does this mean for the swingers church?
Most of the religious scholars agreed that the swingers church would be in trouble if the city came and sued them for not being a real church. It does not look good that the swingers only started their church in response to being banned from opening their sex club at the same property.
Ira “Chip” Lupu, a constitutional law professor at George Washington University, offered a different, non-religious defense.
Lupu cited what has become known as the “Sister Wives” case. In 2011, the polygamous family featured on the TLC show “Sister Wives” challenged Utah’s anti-polygamy law after facing criminal charges for cohabitating.
In 2013, the Federal District Court for Utah ruled that Utah’s anti-polygamy law was unconstitutional. The state could prevent people from holding two marriage licenses, but it can’t regulate what adults chose to do in private, wrote Judge Clark Waddoup. This was reasoning borrowed from Lawrence v. Texas, the landmark Supreme Court case that struck down anti-sodomy laws in 2003. (The case is being appealed.)
A similar argument might prevail here, Lupu said. The key is that these activities are happening behind closed doors. “They’re a club. They screen members. They could do this in their house, except their house isn’t big enough or whatever.”
Therefore, the swingers could argue that the government violated their right to sexual privacy when it zoned them out of their property. “I think they could make a pretty good case,” Lupu said.
On Tuesday night, I called the main line at the The Social Club, which for now is still operating out of its old location downtown. The person who answered the phone called himself Peter, but declined to give his last name (“What we do — what my wife and I do privately, is between us, you know?”).
Proving the old adage that there is no such thing as bad publicity, Peter said that the controversy had brought in scores of new members who either didn’t know the club existed, or thought it was illegal.
“The parties have been huge since all this has happened,” he said. “It’s been outstanding, standing-room only.”
Hello everyone! I’ll be reading and responding to comments today. To get the discussion started, let me ask you this:
Where is the dividing line between secular beliefs and religious beliefs? Should we treat a Catholic with anti-abortion views differently from an atheist with anti-abortion views? Is that an unfair question to ask?
And of course, feel free to e-mail me at jeff.guo at washpost.com