A Concrete Example

[hamilton02 at aol.com]

True enough, but the civil rights statutes have operated to effect eqaulity, not superiority.

Marci


-----Original Message-----
From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
Sent: Fri, Jun 26, 2009 1:04 pm
Subject: RE: A Concrete Example



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

________________________________

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 
hi
storic 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!   

 

________________________________

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



_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090626/af88be48/attachment.htm>