The former home of the Church by the Sea in Bal Harbour, Fla. Photo by Phillip Pessar.
If a local government believes that one religious group is being unfairly maligned by another, can it respond by trying to run the second group out of town?
That’s an easy question to answer, at least here in the United States. The answer is no, it can’t. The First Amendment could not possibly be clearer when it comes to forbidding the “establishment” of a government-favored religion, or prohibiting “the free exercise thereof.” We all have a right to worship – or not – as we choose. It is the very first guarantee enumerated in the Bill of Rights.
Not everyone seems to have gotten that memo in Bal Harbour, Florida, an affluent community just north of Miami Beach. Some residents are attempting to run a local congregation affiliated with the United Church of Christ out of town because of the denomination’s partial support of a Palestinian-backed movement to divest and boycott Israeli companies that ostensibly profit from the occupation of Palestinian territories.
The Miami Herald reported that the congregation, called the Church by the Sea, had reached an agreement that would allow the church to temporarily operate out of a local mall that had purchased the church’s original property to make way for an expansion. As part of the agreement between the Bal Harbour Shops and the church, as approved by the Bal Harbour Village Council, the mall will allow the congregation to meet there while their new building is under construction.
Everyone was satisfied, except for a group of local residents who contend that Church by the Sea’s affiliation with the United Church of Christ means that the group is anti-Semitic and thus should be kicked out of the shopping complex – or out of town altogether.
The Church by the Sea has taken pains to avoid confrontation with its community. Its leaders withdrew some nonpension funds from an investment pool that supported divestment, and sent a letter to the United Church of Christ’s leaders firmly rejecting the suggestion to participate in the Boycott, Divestment and Sanctions, or BDS, movement. The United Church of Christ, which continues to call for divestment in companies that operate in the occupied Palestinian territories but does not call for sanctions against Israel, a boycott of all Israeli companies or a boycott of Israeli athletes and cultural activities, has said the withdrawn funds will be fully liquidated by the end of the quarter.
As Rev. Barbara Asinger of Church by the Sea told the Herald, the national body can only suggest its churches participate in programs like the BDS movement. And the Church by the Sea has demonstrated it wishes to voluntarily abide by the town’s nondiscrimination ordinance during its temporary residency at the Bal Harbour Shops, and presumably beyond.
It is far from clear that the Bal Harbour municipality could have legally refused permission for the church to operate in Bal Harbour Shops, even had the church failed to withdraw from the denomination’s pro-boycott investment pool. The municipality’s ordinance is new, passed only last December, and specifically prevents the village from contracting with a business that boycotts a “person or an entity based in, or doing business with, a country or jurisdiction in which the United States has free trade or other agreements.” The Bar Harbour Council approved the plan, but the mall is privately owned by Whitman Family Development. No contract with the municipality is involved. Further, the Church by the Sea has taken pains to make clear it is not participating in the BDS movement, despite the suggestion of its parent denomination.
Even if neither of these things were true, however, a municipal ordinance does not override the Bill of Rights. Had the village attempted to oust the congregation, citing the ordinance, the action would almost certainly have failed any federal court challenge on both religious and speech freedom grounds. The local church’s conciliatory attitude avoided the need for that sort of legal fight, but that does not make it any less obvious how such a case would have played out.
Bal Harbour’s anti-boycott activists are entitled to their opinion that any ties at all to the United Church of Christ taint the Church by the Sea by association. They are equally entitled to their opinion that the United Church of Christ’s decision to boycott and divest from certain Israeli enterprises is inherently anti-Semitic, though their view is an extreme one that I’m pretty sure most people would not share. I certainly do not. If Bal Harbour and the state of Florida choose not to issue contracts to entities participating in the boycott, that is their business. But they lack the authority to use government power to drive anybody’s church out of a community or out of the state. Even if you subscribe to the idea that the boycott represents anti-Semitic expression, such expression is protected in America. It is what makes us America.
Boycott the boycotters if you choose, but you can’t drive a church out of town just because you do not like the way its members express their faith.