RLUIPA and light pollution?

Mon Dec 11 11:10:05 PST 2006

I suppose that protecting the usefulness of one of the most important scientific instruments in the world (the 200 inch Palomar telescope) would be pretty high in my scale of interests. Protecting neighbors against glaring lights that prevent them from enjoying their property and seeing the stars is also pretty important. Those interests might be more important than protecting the signal of a local radio station, for example, against a religious broadcaster who wanted to do local broadcasting without a license. No one is going to say that religious broadcasters can start transmitting without regulation. 

We either need to say that the interest in prominently displaying the cross is not substantially burdened by a limitation on the wattage used at night --- and similarly that the interests of religious broadcasters are not substantially burdened by the license requirement --- or else we need to say that the governmental interests are compelling. Or both.

On the other hand, protecting people from having to see a symbol that they do not like is not very high in my scale of interests. I used to live in West Los Angeles near the Los Angeles Mormon Temple. If I remember correctly, the angel on top of the temple was softly lit at night. I'm not a Mormon, but I have no problem with that, and I don't give much weight to the interests of those who might dislike the LDS church and thus might not  want the angel to be visible at night.

Mark Scarberry
Pepperdine

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From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 12/11/2006 9:29 AM
To: Law & Religion issues for Law Academics
Subject: RE: RLUIPA and light pollution?

    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.

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From: 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/NEWS01/612090325 

	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/), 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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