Sect-specificity and Flores

[richard duncan]

>
> I was rereading the briefs and opinions in City of Boerne v. Flores
> in preparation for my class on the issue tomorrow, and I noticed a
> small fact of interest. After the Landmark Commission refused the
> Church a permit, the Church appealed to the city council, which
> denied the appeal.
>
> Suppose that the city council *granted* the appeal and gave the
> church a permit. Would that action have been unconstitutional under
> the interpretation of Kiryas Joel defended by various people on this
> list: that any sect-specific accommodation is unconstitutional? After
> all, there is no "guarantee" (KJ opinion's word) that the city
> council will extend a similar accommodation to other churches in the
> future.
> -- Michael McConnell (U of Utah)
______________________

What is the basis of the City Council's review on appeal? Are there
objective criteria they are supposed to be applying, or is their
decision on appeal a purely political decision?

I, of course, believe that religious freedom, properly understood,
would entitle *all* religious institutions to an exemption from
Landmark laws (and entitle *all* persons to the kind of school choice
carved out for the Satmars by the New York legislature). But I
continue to be troubled by selective accommodations such as the KJ
school district.

I also think we might be able to distinguish between
the lifting of a governmental burden as in the landmarks scenario, and
the selective grant of a huge benefit (a special school choice program
with all the tax benefits that go with it) in the KJ scenario. In the
former case, a burden which is selectively imposed on only some
churches (those with landmark-quality buildings) is being lifted on a
case-by-case basis through a process that is available to every church
that seeks an exemption. In the latter case, the legislature is
selectively enacting a very favorable educational benefit for a
particular denomination. I don't think it is enough to say that other
religious denominations (and individuals whose religion is burdened by
the public school system) can petition the legislature for a school and
tax district of their own. A law that said, say, any group of at least
5,000 citizens may file an affidavit expressing their religious
objections to public schools and be granted a charter for a public
school system of their own would be a neutral accommodation. But the
New York legislature would never have enacted a law such as this.


--
                   ----------
             Rick Duncan (rduncan at unlinfo.unl.edu)

"[A]gainst the Court are the twin facts that the American people love
democracy and the American people are not fools."
       --Scalia (again) (dissenting in Casey, 112 S.Ct. at 2884)