Friday, October 19, 2007
One of the most intractable issues of public law concerns the effect of laws on religious groups. On one hand, if a wide-ranging law imposes a burden on religion, it may be considered an infringement of the constitutional right to exercise religion freely. On the other hand, if exceptions are made, this may cause an unconstitutional “establishment” of religion.
In Westchester County, N.Y., a Jewish school won this week a land use challenge against the Village of Mamaroneck, which had denied a special use permit application to expand the school. (The decision is Westchester Day School v. Village of Mamaroneck, No. 06-1464-cv, U.S. Ct. App. for the Second Circuit, Oct. 17, 2007).
The school argued successfully that the town violated the federal Religious Land Use and Institutionalized Persons Act, in which Congress in effect enacted a variant of the existing constitutional law. When a land use regulation imposes a “substantial burden” on “religious exercise,” the regulation is lawful only when it furthers a “compelling” governmental interest and is the “least restrictive means” of furthering this interest. See 42 U.S. Code section 2000cc(a)(1). Needless to say, each of the quoted terms raises more questions than it answers.
Although one of the purposes of the Act was to avoid government “entanglement” with religion, in practice even a religious protection law often results in just such an entanglement. In the Westchester case, both the federal trial court and the U.S. Court of Appeals delved into facts of how Jewish religious education was practiced at the school, as a means of supporting the courts’ conclusion that the school’s inability to expand would harm the school’s religious education, not just peripheral school functions such as recreation or office space. (But query: If a school can’t administer itself adequately, how can it carry out religious education?)
After the courts found that the permit denial burdened religion, they then concluded that the town didn’t have a compelling interest in denying the special permit. The courts relied on the fact that the town had initially approved the permit application, but then reversed itself after complaints from neighbors of the school. The courts found that the neighbors had an “undue influence” on the town’s decision.
But what kind of influence is “undue”? There was no assertion of bribery or any such unlawful action. If local governments were not allowed to make decisions based on complaints of neighbors, this would demolish land use law as we know it. This doesn’t mean that the town should have won, but it does point out that neither I, nor most other attempts at resolving such controversies, provide a fully satisfactory means of reconciling government-religious clashes …