RE: Property Law and Religious Liberty/Constituional Law

[Andrew Wyatt]

“but in Mrs. Moore's case, that merely amounts to doing something for religious reasons that other people wouldn't be allowed to do for secular reasons.”   Correct me if I’m wrong, but isn’t this the whole point of statutes like RLUIPA and RFRA?  Take the UDV case, for example: Neither the church nor the government disputes that a citizen would be forbidden from importing and ingesting a Schedule I substance for *secular* reasons.  I’m less familiar with RLUIPA, but one could imagine a Muslim prisoner requesting to take evening meals in his cell during Ramadan—a privilege no other prisoner has.  I was under the impression that such statutes were specifically passed to provide a religious exception to generally applicable laws, regulations, or rules.   Andrew Wyatt IANAL   -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven Sent: Wednesday, January 04, 2006 2:03 PM To: Law & Religion issues for Law Academics Subject: Re: Property Law and Religious Liberty/Constituional Law   Okay, I'll bite. Isn't the problem with Shelley (and the religion case it cited, Cantwell v. Connecticut) that even if you prevail and show that state court enforcement of the covenant is state action for 14th amendment purposes, you still have all the problems of bringing religious discrimination cases under the 14th Amendment--specifically, that per Smith the state *can* abridge free exercise if done under guise of a generally applicable law? At that point, all the state (or the private litigant under the covenant) would have to show is that it's rationally related to a legitimate regulatory objective, and cite frat parties and the like. Maybe, of course, there's no rational basis for such a regulation that restricts who, rather than how many, people can reside in the same home, but that's an issue apart from any connection to religion (at least under the facts stated). What RLUIPA gets you is strict scrutiny when the land use regulation inhibits religious exercise; but in Mrs. Moore's case, that merely amounts to doing something for religious reasons that other people wouldn't be allowed to do for secular reasons. While building a church and having religious services is pretty much a unique occupation of religious organizations, housing friends and "distant" relatives isn't. While I wouldn't necessarily be embarrassed to make the argument that RLUIPA might apply to Mrs. Moore, I woudn't necessarily expect to win the case. Of course, there's always the Ninth Amendment and Mrs. Moore's right to privacy, which is now a 14th amendment due process issue for the states, if anyone here thinks the courts retain a taste for emanations of penumbras (or was that penumbras of emanations?). Vance On 1/4/06, Rick Duncan <[EMAIL PROTECTED]> wrote: Here is a fun religious liberty/con law issue from my Property course syllabus. We read Moore v. City of East Cleveland, the SDP case in which the Court struck down a restrictive zoning ordinance that defined single family residential use in a way which prohibited a grandmother from living with her two grandsons (from separate branches of her family tree). You all know the case.   Well, suppose that instead of a restrictive zoning ordinance (which, of course, would be unconstitutional under Moore), Mrs. Moore was sued by a HOA to enforce a running covenant restricting her use of her own home to single family residential purposes only (with "single family" defined very restrictively as in Moore). Suppose futher that she took her two grandsons into her home following the deaths of their respective parents, and that she sincerely believes that her religious faith requires her to raise her otherwise ! homeless grandchildren.    Assume that, under the state law of covenants running with the land, the state courts would enforce the covenant and order Mrs. Moore to evict one of her grandsons as an "illegal occupant."   Is there sufficient state action to trigger SDP under the 14th Amendment? Does Shelley apply to all cases involving restrictive covenants (including single faimly restrictions as above and speech-restricting covenants such as those prohibiting large C-band satellite dishes and outside antennas).   Does RLUIPA protect her right to obey her religious conscience against the substantial burden imposed upon her free exercise by the law of running covenants under RLUIPA's definition of land use regulations.   I swear, the Property class could be taught in large part as a religious liberty/con law class!   Rick Duncan        Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902   "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! Photos Ring in the New Year with Photo Calendars. Add photos, events, holidays, whatever. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED]

_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.