RLUIPA and Compelling Interests

[Hamilton02 at aol.com]

Eugene and Marty's exchange illustrates what is wrong with applying strict  
scrutiny to neutral, generally applicable laws.  Marty is right -- it  permits 
the courts to decide what is important (and what is not  important) in a 
community.  I other words, it is placing courts in the  position of making public 
policy.  It is especially problematic in the land  use arena where federal 
judges are not particularly familiar with land use  issues or values (unless in 
their prior life they advised municipalities  and cities or served on a land use 
board of some kind).  
The public lawmaking process involves consideration of all sides of an  issue 
-- religious entities and private property owners.  RLUIPA leads to  
exclusive focus on the needs (demands) of the religious entity.  
 
In RLUIPA litigation, those representing religious entities typically argue  
that there is no compelling interest in anything other than serious health  or 
safety issues.  Light, traffic, noise, and aesthetics are treated as a  
category of unimportant interests.  The implicit message is usually that  these are 
the interests of the idle rich or that there must be discrimination if  
someone is asserting these issues, which are supposedly pretextual. In the  end, 
though, their categorical arguments cannot wash, because compelling  interest is 
a factual conclusion, and, e.g., there are communities where  light pollution 
imposes extraordinary burdens on private property owners and  others where it 
is an insignificant imposition.  
 
Marci
 
In a message dated 12/11/2006 3:03:42 P.M. Eastern Standard Time,  
marty.lederman at comcast.net writes:

One  interesting thing about this thread is that it demonstrates just how  
indeterminate is the notion of "compelling" government interest, lo these many  
years after it was first invoked in Equal Protection jurisprudence.  The  
Court and the Congress have never even begun to provide any indication of how  one 
should go about distinguishing "compelling" from "non-compelling" state  
interests -- nor even addressed the critical antecedent question:   Compelling *by 
whose lights*?

Eugene writes that it's "hard to say"  whether avoiding light pollution that 
would materially undermine the  observatory's work is a compelling interest; 
and that "it's hard for me to see  . . . as 'compelling'" the interest in 
preventing annoyance to neighbors "who  might like a natural-looking night sky."  
Mark, for his part, writes 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."

OK, perhaps those are both reasonable views.  But  so would be the opposite 
views.  And aren't all these sorts of  calculations simply an expression of 
what *individual law professors,* such as  Mark and Eugene, think is important?  
Why, might one ask, should we care  especially about what seems important to 
Mark, or to Eugene, or to me, or to a  consensus of ReligionLaw subscribers?  
That makes very little sense under  the Free Exercise Clause, and even less 
under RLUIPA, since if it's fair to  presume *anything* about what Congress meant 
by "compelling," it might be  this:  whatever is compelling *in the eyes of 
the national  legislature.*  Of course, even that is question-begging, because  
presumably Congress finds, for example, each of its own enactments  
"compelling" enough to have been passed by both houses, and yet each of those  
enactments is subject to RFRA.

Has anyone ever come across a legal  opinion, or even a law-review article, 
that persuasively explains how to  decide whether an interest is "compelling"?  
It's something of an  embarrassment that this is one of the most important 
doctrinal notions that we  convey to our students in many CONLAW classes, and 
yet we have virtually  nothing of value to tell them about how the category is 
or should be  understood.


-------------- Original message  ----------------------
From: "Volokh, Eugene"  <VOLOKH at law.ucla.edu>
>     I'm not sure whether  avoiding light pollution that would
> materially undermine the  observatory's work is a compelling interest; I
> suspect it is, but  that's hard to say.  But there just seems to be
> little reason to  think that allowing this exemption for this one cross
> would indeed  materially undermine the observatory's work.
> 
>      The interest in preventing annoyance to neighbors who might like
> a  natural-looking night sky is implicated even by this one cross.   But
> it's hard for me to see this interest as "compelling."
>  
>     As to "all-or-nothing," and in particular Steve's  argument that
> this is a "time, place, or manner" restriction which  should be subject
> to lower scrutiny, I just don't see how RLUIPA's  text would be
> consistent with that.  If there is a substantial  burden on religious
> exercise, RLUIPA calls for strict  scrutiny.
> 
> > -----Original Message-----
> > From:  religionlaw-bounces at lists.ucla.edu 
> >  [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
>  > Sent: Monday, December 11, 2006 10:54 AM
> > To: Law &  Religion issues for Law Academics
> > Subject: Re: RE: RLUIPA and  light pollution?
> > 
> > Eugene,
> > 
> >  Do you mean to say that avoiding light pollution for the 
> >  astronomical observatory is not compelling?  Or are you 
> >  saying that the law is not narrowly tailored enough or is not 
> >  the least restrictive alternative?
> > 
> > It seems to me  that the interest is compelling and that the 
> > inquiry would not  be about that, but rather about least 
> > restrictrive.  Or  does one not even get to least restrictive 
> > alternative if there  is a compelling interest that does not 
> > substantially  burden?
> > 
> > I think one could argue that  there is  a compelling interest 
> > here, and that it does not substantially  burdent the 
> > exercise, and that one does not need to find a less  
> > restrictive alternative under  these circumstances.
>  > 
> > I also stand by my prior post that I don't think RLUIPA or  
> > RFRAs should be interpretted in the Volokhian all-or-nothing  manner.
> > 
> > Steve
> >  




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