RLUIPA and light pollution?

[Steven Jamar]

Eugene,

You just are not thinking with sufficient circularity. :)

There is no substantial burden because it is merely a time place and
manner restriction.

A time place and manner restriction is not  by its terms a
substantical burden.

I mean this only partly in jest.  Just as we have the "secondary
effects" doctrine in free speech/pornography zoning cases, so we have
would find RLUIPA does not reach all conduct that it could be
interpreted to reach.

The language could be construed Eugene's way, and then we play games
about what is or is not a substantial burden.  And I submit that
deciding that issue will bring into play all sorts of concerns and
weighing and so on that will result in allowing states to regulate
light pollution.

All that said, I don't think there is a substantial burden here.

I think that mere neighbor annoyance is not a compelling state
interest -- I agree with that.  But at some point the mere annoyance
can become too intrusive and even a common law nuisance the abatement
of which would be adequately compelling.

Also, if we look at the aims of the law, the context in which it was
passed, and the variety of limitations built around it, then I come to
the conclusion that this is not the sort of activity it was meant to
reach.  I would conclude that it is intended to reach things that are
more in the nature of prohibitions than mere limitations.

Steve



-- 
Prof. Steven Jamar
Howard University School of Law