Recent 7th Circuit RLUIPA Decision

From the Religion Clause blog:

"Writing for the 7th Circuit in his usual engaging style, yesterday Judge Richard Posner in Digrugilliers v. Consolodated City of Indianapolis, (7th Cir., Oct. 30, 2007), reversed a district court's denial of a preliminary injunction in a religious land use case. At issue was whether in requiring a Baptist Church to obtain a variance in order to lease space for its religious services in a district zoned for commercial use, Indianapolis was violating the provision of RLUIPA that prohibits unequal treatment of religious institutions."

Print out that case and lets read it for next Friday's class (as part of Handout 7). Here is a direct link to the 7th Circuit's opinion.

Property and "No Property"

Here is the article I want you to read for class discussion on the last Thursday class (i.e. after we finish RLUIPA): Jane B. Baron, Property and "No Property," 42 Hous. L.Rev. 1425-1449 (2006). Here is a link to a PDF version of this article on Hein online. Print it out at your leisure and be prepared to discuss it two weeks from tomorrow.

Pursuit of Happyness

Here is a post I blogged around this time last year. It is my reflections on a great property movie, one worth renting over the Thanksgiving break:

My wife and I finally got out of the snow and in to Lincoln to see Pursuit of Happyness. It was a wonderful movie, a Rocky for the average guy struggling to take care of his family. I also had some very definite thoughts about how the film relates to Property as a fundamental human right. Here are some of my thoughts:

1. The first thing I thought about as I watched Chris Gardner struggle to survive with his son as a homeless single dad was Prof. Baron's article about Property and "No Property." If property rights are essential to personhood and human dignity, then to have "no property" is to exist as a non-person, as one who has no dignity. Of course, Chris Gardner was a strong man, a man who claimed personhood and human dignity in spite of his homelessness, but the point remains--he hit rock bottom when forced to sleep with his son in a public restroom and only his strength, and faith, and indomitable will enabled him to overcome these horrible circumstances.

2. I thought about RLUIPA as I watched Gardner survive with the help of a religious ministry whose mission was to feed and shelter the homeless. This is exactly the kind of religious ministry that often finds itself unpopular under zoning laws that are designed to protect the interests of single family neighborhoods and commercial districts. RLUIPA protects the right of ministries like this to locate where they can do the most good for people like Chris Gardner and his son.

3. What is the "pursuit of Happiness" that the Declaration of Independence declares to be an "unalienable right" given to each person by his or her Creator? Well, it is the right to pursue property, to pursue a livlihood, to pursue the means to support your family and to provide for your children. My salary makes me happy not because I love money, but because my income enables me to provide a home for my family, to pay tuition for my children's education at schools I believe in, to pay for my daughter's dance lessons to help her pursue her dream of being a ballerina, and to save to secure my children's future.

This movie is about one man's pursuit of happiness, one man's struggle to work hard to acquire the means to care for his son. Chris Gardner refused to stop pursuing his dream of a good job and the income (i.e. property) that job would provide, because he wanted to be able to afford a good home for his son, a good education for his son, and an easier road for his son than the one Chris had to walk. Property is not things, it is what enables us to meet our responsibilities to our children and families. And this is why property rights are so essential to the good life in a free society, because when government takes our property--whether directly or through taxation--it takes away some of our ability to acquire a home for our families, to educate our children in a school of our own choosing, and to save a nest egg to protect our families against an uncertain future.

4. Of course, this is not to say that there is no role for government to provide a safety net to protect the poor (those with little or "no property") from falling as far as Chris Gardner fell. But it is to say that when government takes our income, we should never forget that the tax funds extracted from us make our own pursuit of happiness that much more difficult. At least, that is how I look at taxes and takings. They are a necessary evil, but an evil nonetheless. I hope you didn't miss that scene in the movie where Chris Gardner's bank account is seized for taxes by the IRS, and as a result Gardner lost the little cushion ($600) he had to survive until he could finish the internship program.

5. I also appreciated what Chris said when he emphasized that we don't have a right to happiness, only a right to pursue happiness. In other words, the pursuit of happiness requires hard work, and each individual is responsible for pursuing his or her own happiness. The more effort, the more determination, the more likely you will succeed. But there are no guarantees.

Your comments are welcome. See you next week!

"7th Circuit Finds Exclusion of Religious Uses from a Buffer Zone May Violate RLUIPA’s Equal Terms Provision"

From Law of the Land blog

Why do you think local government seems so often to exclude religious uses from residential and even commercial districts?

Why from residential districts?

Why from commercial districts?

Another RAP Hypo

Suppose that on January 1, 2007, Harvey Grutz, the owner of Blackacre in Fee Simple Absolute, conveys it "To John Walton and his heirs so long as Blackacre is used as a farm, then to Hannah Montana and her heirs if Hillary Duff is then alive."

What is the state of the title?

Under the CL RAP, is Hannah Montana's interest valid?

When will the contingency certainly be determined one way or the other? Is that within the period of lives in being (as of January 1, 2007) plus 21 years?

And here is another--Grutz conveys "to A and his heirs, but if the property is ever used for commercial purposes, then to B and his heirs."

What is the state of the title before applying the Rule?

Now apply the Rule?

Property and the Homeless

Over at PropertyProf blog, there is an interesting post about "laws that restrict the ability of homeless people to sleep in public places."

Here is an interesting excerpt, about a church that allows the homeless to sleep in its parking lot. Often, when a church opens up a soup kitchen or allows the homeless to crash on its property, neighbors will complain and argue this violates zoning laws. We will soon be studying these kinds of issues when you get to Handout 7 and the Religious Land Use and Instituionalized Persons Act (RLUIPA). Here is the excerpt:

In my local area (Dallas, TX), a local church has decided to open up its parking lot to homeless people as a place for them to sleep at night (see here for story). Their move has generated complaints from nearby business owners who have said that the presence of homeless people have driven away customers. This
conflict raises yet another tension within our private property system - the privilege to use one's property versus the recognition that we can't use our property in ways harmful to our neighbors (again, another theme from the Singer
casebook). Until adequate shelter and other services are provided to homeless people, the inherent tensions within our property system will continue to manifest in various ways.