Back in September of 2003 I wrote about Noel Dube and the fight over his backyard religious shrine that included items such as a 60 by 20 foot mural of the fabled Fatime miracle, a three-story-tall painting of Jesus Christ, and a 24 foot tall brightly illuminated cross. The now 85 year-old WWII vet started his project after the Virgin Mary spoke to him way back in 1982. In 1999 Pepperell town officials ordered him to remove the shrine because he didn’t have the proper permits and neighbors were complaining about both the size and the traffic from the 4,000 annual visitors it was attracting, but rather than comply Dube expanded the shrine by adding the painting of Jesus and the light-up cross so the town took him to court. About a week or so ago the judge issued a ruling allowing Dube to keep his shrine:
Dube’s lawyer, Edward McCormack, argued that the shrine was protected by the First Amendment, as well as a state law that prohibits zoning ordinances from regulating or restricting structures of religious purpose, as long as the dimensions are reasonable.
Fishman ruled the structures are clearly used for religious purposes and are of reasonable size.
The town of Pepperell had argued that Dube needed permits to legally maintain the mural. Since he refused to apply for permits the mural had to be removed, the town said.
Town Administrator Robert Hanson said the town hadn’t decided whether it would appeal the ruling. He criticized Fishman’s decision as being “narrow in its focus.” The town is concerned about safety, not religion, Hanson said.
“He has a structure 20-something-feet tall, and the town has no knowledge of how it was fastened to the ground,” Hanson said.
Neighbor Jen Reale said she was “surprised and a bit disappointed” by Fishman’s ruling. She said Dube should be accountable for violating rules on size limitations of structures.
Back when I first wrote about this I contrasted it with Alabama’s former Chief Justice Roy Moore’s attempt to defend the massive decalog he had placed in the state’s Supreme Court rotunda and I said then that, of the two, Dube probably had more of a legal leg to stand on. This time around I’d like to point out that this case shows the dangers inherent in passing laws that seek to “protect religious expression” by making them immune to legal restrictions. Often these laws are passed on the argument that they are necessary to protect churches from groups such as the ACLU which religious conservatives are always trying to paint as being out to ban all religious expression everywhere—speaking of which it’s worth pointing out the fact that the ACLU isn’t involved in this case at all—and rarely is anything ever said of the potential unintended consequences of these laws. Commonly this sort of legislation is hastily drafted in response to some perceived threat (real or imagined) and the end result is vague enough that you end up with a situation such as the one here. Because of its religious nature Dube’s three-story backyard shrine is immune from laws dealing with zoning and safety which would normally apply. Don’t like the fact that his 24 foot cross is shining in your windows all night long? According to his niece you should go buy yourself some window shades and keep them drawn then.
While I do agree that many communities are too restrictive about what you’re allowed to do with the land that you own I also see the need to regulate private property use to some degree; if for no other reason than dispute resolution in situations like this. What happens when someone worshiping a neo-pagan religion decides to construct a 30 foot tall penis in honor of Hermes, the Roman God of fertility in his yard? Better yet, a 30 foot tall penis that lights up so you can clearly see it at night? I wonder if the judge would be so accommodating in that sort of situation. Do you think Mr. Dube would be happy living next to someone who has a three story illuminated prick in their yard? Somehow, I don’t think so.