Re: RLUIPA and Kelo v. City of New London .:.
In a message dated 6/24/05 10:03:49 AM, [EMAIL PROTECTED] writes: I'd also point out that (1) San Jose Christian College did not take a side in the current circuit split over the substantial burden analysis ... Is there an accessable source that summarizes the current state of the circuit split? It would be a favor if you could point me to it. Thanks, Arthur B. Spitzer Legal Director American Civil Liberties Union of the National Capital Area 1400 20th Street, N.W. #119 Washington, D.C. 20036 T. 202-457-0800 F. 202-452-1868 [EMAIL PROTECTED] www.aclu-nca.org ___ To post, send message to Religionlaw@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.
RE: RLUIPA and Kelo v. City of New London .:.
I'd also point out that (1) San Jose Christian College did not take a side in the current circuit split over the substantial burden analysis (despite the court's noting that it would have reached the same result under the Seventh Circuit's standard in CLUB, see 360 F.3d at 1035); and (2) numerous other Ninth Circuit cases in other contexts have used substantial burden analyses similar to that in Cottonwood. See, e.g., Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir. 1987); Bryant v. Gomez, 46 F.3d 948, 949 (9h Cir. 1995); Vernon v City of Lost Angeles, 27 F.3d 1385, 1393 (9th Cir. 1994); US v. Turnbull, 888 F.2d 636, 638-39 (9th Cir. 1989); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1121 n.3 (9th cir. 2000); Goehring v. Brophy, 94 F.3d 1294, 1300-01 (9th Cir. 1996); Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002). (An amicus brief filed by Sidley's Religious Institutions Practice Group in the Elsinore appeal made these points.) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Anthony PicarelloSent: Thursday, June 23, 2005 8:09 PMTo: Law & Religion issues for Law AcademicsSubject: RE: RLUIPA and Kelo v. City of New London .:. It is an overstatement to say that San Jose Christian College v Morgan Hill "reversed" Cottonwood's substantial burden analysis. Yes, SJCC used new language to give meaning to "substantial burden" that Cottonwood did not use (and could not have used) itself, since the 9th Circuit more or less pulled it out of the air (actually, the dictionary). On the other hand, SJCC does not address whether its SB analysis is consistent or at odds with Cottonwood's. In fact, SJCC cites Cottonwood favorably (360 F3d at 1034), albeit for another more general proposition, but that would be an odd way of expressing disapproval for its main holding. On top of that, since SJCC was decided, other courts have cited Cottonwood favorably and have not treated it as overruled. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, June 23, 2005 7:20 PMTo: religionlaw@lists.ucla.eduSubject: Re: RLUIPA and Kelo v. City of New London Of course the problem with the Cottonwood analysis is that the substantial burden analysis was reversed by Morgan Hill in the 9th Cir. There is no reason to think that the burden in that case would have triggered RLUIPA or the Free Exercise Clause under the proper analysis, and therefore, Kelo in all likelihood does open the door for churches, like all other property owners, to be subject to public use requirements. It was that fear presumably that led the Becket Fund to file an amicus brief in that case on the side of the homeowners. Marci In a message dated 6/23/2005 6:58:33 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Cottonwood Christian Center v. City of Cypress, 218 F.Supp.2d 1203 (C.D.Cal. 2002) provides a good example of how both the Free Exercise Clause and RLUIPA protect churches and other religious institutions in eminent domain cases. In the end, Kelo doesn't really change the status quo for religious institutions, since the Free Exercise Clause and RLUIPA already provided the better avenue of protection as compared to the Takings Clause. Put another way, though a decision the other way in Kelo would have provided religious institutions an additional measure of protection in cases where cities seek to take property for tax revenue or economic development, the Free Exercise Clause and RLUIPA will still protect them. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious Sidley Austin Brown & Wood LLP mail server made the following annotations on 06/24/2005, 09:02:36 AM: ** To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this e-mail, including attachments, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service. ** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ___ To post, send
RE: RLUIPA and Kelo v. City of New London
It is an overstatement to say that San Jose Christian College v Morgan Hill "reversed" Cottonwood's substantial burden analysis. Yes, SJCC used new language to give meaning to "substantial burden" that Cottonwood did not use (and could not have used) itself, since the 9th Circuit more or less pulled it out of the air (actually, the dictionary). On the other hand, SJCC does not address whether its SB analysis is consistent or at odds with Cottonwood's. In fact, SJCC cites Cottonwood favorably (360 F3d at 1034), albeit for another more general proposition, but that would be an odd way of expressing disapproval for its main holding. On top of that, since SJCC was decided, other courts have cited Cottonwood favorably and have not treated it as overruled. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, June 23, 2005 7:20 PMTo: religionlaw@lists.ucla.eduSubject: Re: RLUIPA and Kelo v. City of New London Of course the problem with the Cottonwood analysis is that the substantial burden analysis was reversed by Morgan Hill in the 9th Cir. There is no reason to think that the burden in that case would have triggered RLUIPA or the Free Exercise Clause under the proper analysis, and therefore, Kelo in all likelihood does open the door for churches, like all other property owners, to be subject to public use requirements. It was that fear presumably that led the Becket Fund to file an amicus brief in that case on the side of the homeowners. Marci In a message dated 6/23/2005 6:58:33 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Cottonwood Christian Center v. City of Cypress, 218 F.Supp.2d 1203 (C.D.Cal. 2002) provides a good example of how both the Free Exercise Clause and RLUIPA protect churches and other religious institutions in eminent domain cases. In the end, Kelo doesn’t really change the status quo for religious institutions, since the Free Exercise Clause and RLUIPA already provided the better avenue of protection as compared to the Takings Clause. Put another way, though a decision the other way in Kelo would have provided religious institutions an additional measure of protection in cases where cities seek to take property for tax revenue or economic development, the Free Exercise Clause and RLUIPA will still protect them. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious ___ To post, send message to Religionlaw@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.
RE: RLUIPA and Kelo v. City of New London
Of course if it is the federal government that is taking the property (not very likely in this cases, I'll admit), then we would also need to consider RFRA. If I remember correctly, every circuit to reach the issue has held that RFRA still binds the federal government even after City of Boerne. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Thursday, June 23, 2005 4:20 PM To: religionlaw@lists.ucla.edu Subject: Re: RLUIPA and Kelo v. City of New London Of course the problem with the Cottonwood analysis is that the substantial burden analysis was reversed by Morgan Hill in the 9th Cir. There is no reason to think that the burden in that case would have triggered RLUIPA or the Free Exercise Clause under the proper analysis, and therefore, Kelo in all likelihood does open the door for churches, like all other property owners, to be subject to public use requirements. It was that fear presumably that led the Becket Fund to file an amicus brief in that case on the side of the homeowners. Marci In a message dated 6/23/2005 6:58:33 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Cottonwood Christian Center v. City of Cypress, 218 F.Supp.2d 1203 (C.D.Cal. 2002) provides a good example of how both the Free Exercise Clause and RLUIPA protect churches and other religious institutions in eminent domain cases. In the end, Kelo doesn't really change the status quo for religious institutions, since the Free Exercise Clause and RLUIPA already provided the better avenue of protection as compared to the Takings Clause. Put another way, though a decision the other way in Kelo would have provided religious institutions an additional measure of protection in cases where cities seek to take property for tax revenue or economic development, the Free Exercise Clause and RLUIPA will still protect them. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious ___ To post, send message to Religionlaw@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.
Re: RLUIPA and Kelo v. City of New London
Of course the problem with the Cottonwood analysis is that the substantial burden analysis was reversed by Morgan Hill in the 9th Cir. There is no reason to think that the burden in that case would have triggered RLUIPA or the Free Exercise Clause under the proper analysis, and therefore, Kelo in all likelihood does open the door for churches, like all other property owners, to be subject to public use requirements. It was that fear presumably that led the Becket Fund to file an amicus brief in that case on the side of the homeowners. Marci In a message dated 6/23/2005 6:58:33 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Cottonwood Christian Center v. City of Cypress, 218 F.Supp.2d 1203 (C.D.Cal. 2002) provides a good example of how both the Free Exercise Clause and RLUIPA protect churches and other religious institutions in eminent domain cases. In the end, Kelo doesn’t really change the status quo for religious institutions, since the Free Exercise Clause and RLUIPA already provided the better avenue of protection as compared to the Takings Clause. Put another way, though a decision the other way in Kelo would have provided religious institutions an additional measure of protection in cases where cities seek to take property for tax revenue or economic development, the Free Exercise Clause and RLUIPA will still protect them. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious ___ To post, send message to Religionlaw@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.
RE: RLUIPA and Kelo v. City of New London
RLUIPA proetcts against the application of "land use regulations", which are defined in the statute as zoning or landmarking laws that limit or restrict the use or development of land. I don't think that definition would cover e.g. urban redevelopment plans. *Howard M. FriedmanDisting. Univ. Professor EmeritusUniversity of Toledo College of LawToledo, OH 43606-3390Phone: (419) 530-2911, FAX (419) 530-4732E-mail: [EMAIL PROTECTED]* From: [EMAIL PROTECTED] on behalf of Brad PardeeSent: Thu 6/23/2005 6:44 PMTo: Law & Religion issues for Law AcademicsSubject: RLUIPA and Kelo v. City of New London In light of the Supreme Court's decision today in Kelo v. City of New London, will the RLUIPA protect churches if a local government tries to take church property, ostensibly on the grounds that it will better serve a public use as tax generating commercial property? Brad ___ To post, send message to Religionlaw@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.
RE: RLUIPA and Kelo v. City of New London
Cottonwood Christian Center v. City of Cypress, 218 F.Supp.2d 1203 (C.D.Cal. 2002) provides a good example of how both the Free Exercise Clause and RLUIPA protect churches and other religious institutions in eminent domain cases. In the end, Kelo doesn’t really change the status quo for religious institutions, since the Free Exercise Clause and RLUIPA already provided the better avenue of protection as compared to the Takings Clause. Put another way, though a decision the other way in Kelo would have provided religious institutions an additional measure of protection in cases where cities seek to take property for tax revenue or economic development, the Free Exercise Clause and RLUIPA will still protect them. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious Liberty 1350 Connecticut Avenue, NW, Suite 605 Washington DC 20036 202 349-7208 (phone) 202 955-0090 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Pardee Sent: Thursday, June 23, 2005 6:44 PM To: Law & Religion issues for Law Academics Subject: RLUIPA and Kelo v. City of New London In light of the Supreme Court's decision today in Kelo v. City of New London, will the RLUIPA protect churches if a local government tries to take church property, ostensibly on the grounds that it will better serve a public use as tax generating commercial property? Brad ___ To post, send message to Religionlaw@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.
RLUIPA and Kelo v. City of New London
In light of the Supreme Court's decision today in Kelo v. City of New London, will the RLUIPA protect churches if a local government tries to take church property, ostensibly on the grounds that it will better serve a public use as tax generating commercial property? Brad ___ To post, send message to Religionlaw@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.
