Class Friday March 1

This Friday (March 1) our class will meet from 12:15 to 1:15 (instead of from 1:15 to 2:15). I have to catch a flight to NYC for a debate at Fordham Law School.

I will have IT record the class and post a link for those of you who have a conflict.

Greetings From Texas

I am a poor selfie photographer, but here I am at the Joe Ely show just outside of Fort Worth, Texas.

I missed the snow, but I will be back next week.

I am in the Building! See y'all at 1:15

Snow doesn't bother me!

Liberty in an Age of Security

Rand Paul on airport security and our loss of liberty:

Harvard Law School professor Noah Feldman has asked, “The next time airport security tells you to put your hands over your head and hold that vulnerable position for seven seconds, ask yourself: Is this the posture of a free man?”

Quiet Prayer Meetings in Private Homes as an Actionable Private Nuisance

Once a week for 20 to 25 cars. Here is a general definition:

Private Nuisance

A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

I am not aware of any case where a large, once-a-week social gathering of friends in a private home has been found to constitute a nuisance. A fraternity house that has many noisy parties dragging on late into the night, perhaps. But a quiet prayer meeting from 4 to 6 PM every Sunday, even if it brings 20 or 25 cars onto the public roads of a residential neighborhood, no way.

You could bring the action and pay a lawyer $200 an hour to represent you, but if you win I will root for the Yankees for the rest of my life. It is not the Murphys who are acting unreasonably here. It is their overly-sensitive neighbors.

Prove me wrong.

Interesting RLUIPA Case

Religious freedom includes the right to make wine and beer. Illinois county board settles suit under Religious Land Use and Institutionalized Persons Act allowing a Catholic organization a brewery and winery. Court lambastes objectors’ religious animus.

 

Link

Zoning Out Religious Use

Over at the Religion Clause blog there is an interesting post about the clash between zoning laws and religious land use.

Here is the post:

"An article in yesterday's Lancaster (PA) Sunday News raises an interesting religious land use issue posed by the apparently growing practice of churches renting out movie theaters for use for religious services on Sunday mornings. The zoning rules in Manheim Township, Pennsylvania permit theaters and other commercial uses in industrial zones, but not churches. Township zoning officials have issued a notice of violation to the owner of the Penn Cinema who rents out his theater each Sunday to the Crossings Church. Theater owner Penn Ketchum argues that renting out the theater for a church service does not change the character of the building. He argues: "While they're finishing up their service, we're literally opening our doors to the moviegoing public."... At no time do we cease to be a movie theater. We continue to be well within our parking ratios, as well as building capacity. The service still leaves literally 90 percent of the building unoccupied.... To me there's a big difference between a church and a church service.'"

There is a great deal of hostility in many communities toward religious land use, and a recent federal civil rights law has altered the playing field between regulators and religious land users. This is one of the most important and interesting property issues under modern law. Our study of this issue is one of the highlights of the course for me.

RLUIPA and the Compelling Interest Test

The key to understanding Constitutional Law is to understand the various "standards of review" the Court applies to various claims of constitutional rights. Consider this:

STANDARDS OF REVIEW


I. MINIMAL SCRUTINY (DEFERENCE)

Rational Basis Test - The government classification need only be rationally or conceivably related [Means] to any legitimate state interest [Ends].


II. INTERMEDIATE SCRUTINY (SKEPTICISM)

Intermediate Scrutiny Test - The government restriction must serve important governmental objectives [Ends] and must be substantially related to the achievement of those objectives [Means]. ["Intermediate scrutiny always asks is there some less restrictive alternative available?" Epstein, Takings at 138.]


III. STRICT SCRUTINY (CYNICISM)

The governmental restriction must be necessary (i.e., the least restrictive means) [Means] to achieve a compelling state interest [Ends]. See Nowak at 530.

Rabbi With a Zoning Dispute

Small religious assemblies also have zoning problems.

Later this week, we will be studying clashes between religious liberty and property regulations. Here is a case from a few years ago.

From the Religion Clause blog:

This week's New Jersey Jewish Standard reports on a zoning dispute in Teaneck (NJ) over the use by a rabbi of his home for religious services. The house was purchased in October 2007 by Etz Chaim of Teaneck which hired Rabbi Daniel Feldman as its leader and rented the house to him. Feldman began in November to hold services in his living room. Neighbors petitioned the township, but it took no action, apparently in reliance on a 1985 New Jersey Superior Court case, Farhi v. Comm'rs of Deal [Lexis link], that held the state's constitution prohibits a municipality from using its zoning power to prohibit the free exercise of religious activity in the privacy of one's home.

On July 18, Feldman moved the services from his living room to his family room. The township's zoning ordinance requires a zoning permit where there has been a "change in use" of a piece of property. Neighbors filed a second petition saying that the July 18 move of the services-- now attended by 20 to 25 families-- was a change in use. Feldman says that the services on Friday evening and Saturday morning (as well as holidays) only total about 5 hours per week-- about 3% of the time-- too little to constitute a change in use. In a letter, however, the Teaneck zoning officer told Feldman to cease and desist from using the premises as a house of worship or place of public assembly. Feldman, who argues that this is still merely a protected private prayer group, has filed an appeal with the township zoning board.