A Concrete Example

[Hamilton02 at aol.com]

The courts have not agreed with Doug's broad brush and  inaccurate 
description of land use laws and have found  that many are not individualized 
assessments in the constitutional  sense.  RLUIPA is not written to reflect what 
the Court meant in  Smith, but rather to reach farther.  Thus, you can have 
an RLUIPA  violation of the substantial burdens provision but no 
constitutional  violation.
 
That is why we get so many rulings/verdicts where there is no  
constitutional violation but there is an RLUIPA violation.  Great example  is the recent 
Boulder County verdict, where not only was there no constitutional  
violation, but the jury awarded $0 in damages (meaning no  injury) and still found 
an RLUIPA violation.  Best case out there  to show RLUIPA in its true light. 
 Add to that the district court gave as a  remedy the church everything it 
had originally requested without any further  consideration.  No other land 
developer could have pulled off the same  result.
 
The equal terms provision is misnamed actually.  Its language  indicates 
that religious institutions have equality+, not equality.  The  better name 
for RLUIPA is "super rights statute" not a "civil rights  statute."  In fact, 
in some ways it is offensive to refer to RLUIPA as a  civil rights statute.  
The latter are historic statutes enacted to bring  equality to minorities 
who were being treated decidedly less well than  others.  
 
In contrast, RLUIPA exists to give religious developers superior  treatment 
as compared to their residential neighbors and communities.  As I  have 
said before, it is the antithesis of civil society.
 
Marci
 
In a message dated 6/25/2009 4:11:00 P.M. Eastern Daylight Time,  
nebraskalawprof at yahoo.com writes:

Marci writes:

"Rluipa does not protect against the  violation of constitutional rights.  
It is a sui generis statute  that gives them much more.   The FHA outlaws  
discrimination. Despite the engineered legislative history of rluipa the  
cases have not turned on findings of discrimination by a long  shot."

I reply: 

Actually, the general rule of RLUIPA (no  substantial burdens) arguably
does nothing more than enforce the  "individualized process" rule of Smith
and Sherbert (as the Court now understands  Sherbert). As Doug Laycock once 
 wrote, land use laws (variances, special use permits, etc) are one of  the 
most individualized of all bodies of law.

And the equal terms  rule arguably enforces the Smith  rule protecting free 
exercise from non-generally applicable  burdens.

Sounds like a civil rights law to  me!


 
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