A Concrete Example

[Scarberry, Mark]

Civil rights statutes do not always just replicate rights already protected under the Constitution. The preclearance provisions of the Voting Rights Act are surely not constitutionally required, nor do they only result in blocking voting changes that would violate the Constitution. Ollie's Barbecue was not constitutionally required to serve African Americans, but Congress appropriately, by way of the 1964 Civil Rights Act, imposed that obligation on Ollie's. (Katzenbach v. McClung.)
 
Mark Scarberry
Pepperdine

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From: religionlaw-bounces at lists.ucla.edu on behalf of Hamilton02 at aol.com
Sent: Fri 6/26/2009 7:32 AM
To: nebraskalawprof at yahoo.com; religionlaw at lists.ucla.edu
Subject: Re: A Concrete Example


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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Make your summer sizzle with fast and easy recipes <http://food.aol.com/grilling?ncid=emlcntusfood00000006>  for the grill.
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