Marci says: "True enough, but the civil rights statutes have operated to effect eqaulity, not superiority."
RLUIPA sometimes protects equality (e.g. when zoning laws employ
individualized systems such as special use permits and variances,
and under the equal terms provision), and sometimes protects religious
liberty (free exercise beyond the stingy reach of Smith). We should
never lose sight of the fact that zoning exclusions strike at the heart
of religious exercise, at the right of a church or religious assembly
to meet for worship or religious ministry on its own property!
RLUIPA is not only a civil rights law, it is one of the most important
civil rights laws ever enacted. I am all for federalism, but the right of
religious communities to meet for worship and ministry is an inalienable
right that deserves the protection of federal civil rights legislation.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)
--- On Fri, 6/26/09, hamilton02 at aol.com <hamilton02 at aol.com> wrote:
From: hamilton02 at aol.com <hamilton02 at aol.com>
Subject: Re: A Concrete Example
To: religionlaw at lists.ucla.edu
Date: Friday, June 26, 2009, 10:50 AM
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
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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for the grill.
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