RLUIPA and Compelling Interests

[Steven Jamar]

Marci,

I can't say how people representing religious entities argue as an  
empirical matter, but I think your statement illustrates the fallacy  
of the so-called law of the excluded middle.  To argue that an  
interest is not compelling does not mean that one does not consider  
it important.  Many important interests may not rise to the level of  
compelling.

Of course I think it is better to recognize up front, as the courts  
generally do implicitly, that what is going on is a balancing of the  
importance of the interest against the quality of the interference  
and the importance of the interest interfered with.

Of course some interest are not compelling or even very importance --  
banning exterior clothes lines for example seems to be one.

Steve

On Dec 11, 2006, at 10:21 PM, Hamilton02 at aol.com wrote:

> 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

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/

"I have the audacity to believe that peoples everywhere can have  
three meals a day for their bodies, education and culture for their  
minds, and dignity, equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)



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