RLUIPA and light pollution?

Mon Dec 11 10:41:13 PST 2006

	Very sorry, I should have been more explicit.  The Palm Desert
Sun article stressed only the annoyance to neighbors; and while the Bad
Astronomy Blog did object to the cross because of its being near the
observatory, as I read the post
(http://www.badastronomy.com/bablog/2006/12/09/science-versus-religion/
<http://www.badastronomy.com/bablog/2006/12/09/science-versus-religion/)
it never said that the presence of this cross alone really interferes
with astronomy.  The post does say:  "The cross violates several local
and state ordinances about light pollution. As the article points out,
it is six times brighter than allowed for local Palm Desert law, and is
too close to Mt. Palomar (home of the giant 200 inch telescope) - any
bright lights within 45 miles of the venerable observatory are supposed
to be shut off for most of the night."  But it doesn't say that these
lights are actually by themselves interfering.  Presumably if everyone
were to violate the ordinance this way, there would be interference; but
as I understand RLUIPA and RFRA, such "what if everyone were doing it?"
arguments are inadequate to justify passing strict scrutiny unless
there's some reason to believe that everyone is doing it, or will be
doing it for religious reasons, something that might have been so as to
taxes in U.S. v. Lee but seems unlikely here.

	So the main interest, I think, is in preventing annoyance to
neighbors.  Perhaps that should be an adequate interest; maybe any
exemption regime should provide exceptions when there's measurable
interference (even esthetic interference) with another's use of his
property.  But under RLUIPA, the question is whether the interest is
compelling -- and it seems to me hard to see this interest as compelling
(which was Marci's argument) under plausible readings of the term
"compelling."  (As I noted, maybe there's no substantial burden on the
church's religious exercise, but that's a separate question.)

	Eugene
 

________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
	Sent: Monday, December 11, 2006 10:09 AM
	To: Law & Religion issues for Law Academics
	Subject: Re: RLUIPA and light pollution?
	
	
	I would suppose that preventing a service-affecting impediment
to the Mt. Palomar observatory could qualify as a compelling interest,
as relocating an astronomical observatory is hardly a trivial matter.
	
	I also assume it matters whether the light-pollution ordinance
qualify as a land-use restriction for purposes of applying RLUIPA, no?
As a pollution-control regulation it might, although it affects the use
of land, not fall within RULIPA's ambit. 
	
	This thread puts me in mind of a recent to-do in Boston over a
homeowner's Christmas lighting display, which is so extensive that it
has driven his neighbors bats (and he's had it up since October). I've
driven by the site, and it is formidable indeed--it's like the
floodlights at Fenway Park. I don't know whether Boston has a
light-pollution regulation (surely Boston regulates everything), but
could a non-church landowner claim the benefit of RLUIPA were the city,
or his neighbors, to try, shall we say, to douse his lights? 
	
	
	On 12/11/06, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote: 

		    I sympathize with light pollution ordinances, and
I'm not sure that they impose a substantial burden here.  But if there's
a *compelling* government interest in preventing light pollution, then
we really are in "strict in theory, feeble in fact" territory.
		 
________________________________

		From: religionlaw-bounces at lists.ucla.edu [mailto:
religionlaw-bounces at lists.ucla.edu
<mailto:religionlaw-bounces at lists.ucla.edu> ] On Behalf Of
hamilton02 at aol.com
		Sent: Monday, December 11, 2006 8:42 AM
		To: religionlaw at lists.ucla.edu
		Subject: Re: RLUIPA and light pollution?
		
		
			RLUIPA is not blanket protection from the
operation of the law.  I would think that the federal laws at issue here
would satisfy strict scrutiny.  I also have some questions regarding
whether the intensity of the light bulb can be argued as a substantial
burden on "religious exercise."  RLUIPA defines religious exercise to
include any potential belief, not just central beliefs, but the light
intensity argument seems to me to be a very tough one for the religious
entities to win.  Moreover, where is the burden on reducing the wattage?
RLUIPA is unlikely to assist the religious entity here.
			 
			Marci 
			 
			Marci A. Hamilton 
			Paul R. Verkuil Chair in Public Law
			Benjamin N. Cardozo School of Law
			Yeshiva University 
			 
			 
			-----Original Message-----
			From: stcynic at crystalauto.com
			To: religionlaw at lists.ucla.edu
			Sent: Sun, 10 Dec 2006 12:34 AM
			Subject: RLUIPA and light pollution?
			
			
			Here's an interesting situation I'd like to get
some opinions about. 
			 
	
http://www.thedesertsun.com/apps/pbcs.dll/article?AID=/20061209/NEWS01/6
12090325 
			 
			A church in Palm Desert, CA, has a giant lit
cross that apparently violates the local light pollution ordinances
(it's about 6 times brighter than the zoning laws allow). According to
Phil Plait
(http://www.badastronomy.com/bablog/2006/12/09/science-versus-religion/
<http://www.badastronomy.com/bablog/2006/12/09/science-versus-religion/>
), an astronomer, it's causing problems for the Mt. Palomar space
telescope, and apparently Federal law requires that all such lights
within 45 miles of the observatory be shut off at night. A law professor
from USC says that the RLUIPA prevents any enforcement of those
statutes, but that strikes me as unlikely. Any thoughts? 
			 
			Ed Brayton 
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	-- 
	Vance R. Koven
	Boston, MA USA
	vrkoven at world.std.com