I actually
have a day job and have no intention of responding to Marci's frenetic
rate of posting. She may be right about where the Court will some
day go, just as she was right about the shift of direction in
Boerne. (She will respond that there was no shift, but in fact her
brief was based almost entirely on dissenting opinions.) I
will respond once to some of her more extravagant claims, and then go
back to work.
Hr reading
of
Locke is mostly imagination, and her accounts of RLUIPA become
wilder and wilder over time. It seems to me self-evident that
Locke is a funding case, that funding cases have always been
special, that this was not just any funding case but a case about
funding the training of clergy, and that it predicts nothing about cases
involving burdensome regulation with a scope of less than general
applicability, or with only arguably general applicability.
Locke could have been decided the other way; I helped with Tom
Berg's brief urging that it be decided the other way. But it was
the wrong case, reaching much too far, brought much too soon after
Zelman. It may well lead to holdings that states do not have
to equally fund any religious provision of services;
Rosenberger
may be confined to speech cases. But
Locke is not about
regulation. It is elementary first-year case reading that there was
no regulation issue in the case.
What Rehnquist actually says is:
"It
[the Washington law] imposes neither criminal nor civil sanctions on any
type of religious service or rite. . . . [W]e can think of few
areas in which a State's antiestablishment interests come more into
play. Since the founding of our country, there have been popular
uprisings against procuring taxpayer funds to support church leaders,
which was one of the hallmarks of an `established' religion. . .
. Most States that sought to avoid an establishm0ent of religion
around the time of the founding placed in their constitutions formal
prohibitions against using tax funds to support the ministry."
And in his concluding paragraph:
"The
State's interest in not funding the pursuit of devotional degrees is
substantial and the exclusions of such funding places a relatively minor
burden on Promise Scholars. If any room exists between the two
Religion Clauses, it must be here. We need not venture further into
this difficult area in order to uphold the Promise Scholarship Program as
currently operated by the State of Washington."
The second
and third to last paragraphs are about animus, and they say there is not
any. This is after all the talk about the long tradition of not
funding the clergy. The implication seems to be that if there were
animus, that might matter even in a case about not funding the clergy,
but that issue is not presented. Marci wants to read those
paragraphs as implying that animus is always required, no matter the
facts, and whether or not funding the clergy is at issue.
Obviously, that is at most an implication, and if implied, the wildest
sort of dicta. To draw her implication, you have to treat
everything he said about funding the clergy as utterly irrelevant to the
opinion. Read the two paragraphs for yourself, but I don't think
her reading is implied at all.
There is a
subordinate clause introducing the animus paragraphs: "Far
from evincing the hostility toward religion which was manifest in
Lukumi .. .", which tells us what we already knew --
that the facts of
Lukumi can be interpreted in terms of
animus. Marci's side will quote that phrase from here to Kingdom
come, but cases are not overruled or reinterpreted in such passing
references. In
Smith, the Court cited with apparent approval
the district court's opinion in
Lukumi. People told me the
Court had already decided
Lukumi before we filed the cert
petition. I said we might win or we might lose, but the last thing
I was worried about was that the Court might feel bound by a passing
citation in rank dictum to the district court's opinion. It remains
the case that there is an animus section in the
Lukumi opinion,
and that section got only two votes. Someone on each side will have
to argue the competing interpretations of
Lukumi down the road; it
was not decided in
Locke.
As to
RLUIPA, it is not true that there is always a place to worship.
Marci's claim that every municipality provides a place for churches is
simply false. The hearing record has a survey of suburbs in
northern Cook County (Chicago); in 22 of them, I think, there was no
place to put a new church. Don't think just of the established
churches who acquired their sites and raised their buildings before the
advent of zoning laws. The problem is siting new churches, and
especially for small churches struggling to get started, that problem is
severe.
A church
in the wrong place can indeed be a significant problem for the neighbors,
and that is why there is a compelling interest exception in
RLUIPA. But many of these cases involve no such thing except
for people who believe they have the right to control all land use for
long distances in every direction from their house. The
Mamaronek case currently pending in the Second Circuit is about an
Orthodox Jewish school in a residential neighborhood -- where they want
to build a small additional building (within the existing footprint) on a
26-acre tract! The neighborhood claims it will be hurt.
There is
indeed a constitutional right to the free exercise of religion.
There is also a constitutional right to own property, for both homeowners
and churches. But there is no constitutional right to control your
neighbor's property, or property a mile away but within your city limits
or within the boundaries of your neighborhood association. That
"right" is a creation of modern zoning law. The
Constitution does indeed embody a preference for religious exercise over
controlling other people's property.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(voice)
512-471-6988
(fax)
[EMAIL PROTECTED]
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