Opposition Brief — Village of Airmont v. LeBlanc-Sternberg

9) FILR® DB

No. 95-1381 MAR 27 1996

IN THE CLERK -

Supreme Court Of Che United States

October Term, 1995

THE VILLAGE OF AIRMONT, and its Municipal Officers,

Petitioners,

Vv.

RABBI YITZCHOK LEBLANC-STERNBERG, CHANIE

LEBLANC-STERNBERG, FRED WALFISH, LEWIS

KAMMAN, PARK AVENUE SYNAGOGUE, INC.,

and UNITED STATES OF AMERICA,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF IN OPPOSITION FOR RABBI YITZCHOK

LEBLANC-STERNBERG, CHANIE LEBLANC-

STERNBERG, FRED WALFISH, LEWIS KAMMAN, AND

PARK AVENUE SYNAGOGUE, INC., RESPONDENTS

Of Counsel: Craig L. Parshall

John W. Whitehead Counsel of Record

Anne-Marie Amiel Law Offices of

THE RUTHERFORD INSTITUTE Craig L. Parshall

1445 E. Rio Road 910 Princess Anne St.,

Charlottesville, VA 22901 Suite 101

(804) 978-3888 Fredericksburg, VA 22401

(540) 371-5427

Reuben Koolyk

Arnold & Porter

399 Park Avenue

New York, NY 10022

(212) 715-1000

March 27, 1996

Balmar Legal Publishing, Washington, D.C. (202) 682-9800

tN

i

QUESTIONS PRESENTED

Whether the Court of Appeals was correct in deciding

that the Petitioner’s zoning code, the object of which

was to target for discrimination the home worship prac-

tices of Orthodox Jews, violated the Free Exercise of

Religion and Fair Housing Act rights of the Respon-

dents.

Whether the Respondents have standing to bring their

case, and was such case ripe for adjudication, where the

Court of Appeals found that Petitioner’s zoning code

would likely be applied in a discriminatory manner.

ii

LIST OF PARTIES

The parties are accurately stated in the caption of this

case. Respondent Park Avenue Synagogue, Inc., is a non-

profit and non-stock corporation that has no parent or subsidi-

ary companies.

ill

TABLE OF CONTENTS

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STATEMENT OF JURISDICTION ....................cccccecseceeseeee ]

CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR DENYING THE WRIT ....0......ccccccccseeeeees 6

I. THERE IS NO DIVISION IN THE

CIRCUITS REGARDING GOVERNMENT

ACTION THAT TARGETS RELIGIOUS

PRACTICES FOR DISCRIMINATION ................ 6

Ii. THE SECOND CIRCUIT’S OPINION

PROPERLY APPLIED CHURCH OF THE

LUKUMI BABALU AYE, INC. V. CITY OF

Ill. THIS ACTION DOES NOT VIOLATE

RULES REGARDING STANDING OR

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TABLE OF AUTHORITIES

Pages

Cases

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ........ 18

American Communications Assn. v. Douds, 339 U.S.

Ne CE iit chassis cenasckaiatdnrsacinabiitumnncaduaeaeingesawecinicss 10

Braunfeld v. Brown, 366 U.S. 599 (1961) ........cccssccseseseeeeeeees 8

Church of the Lukumi Babalu Aye, Inc., v. City of

Hialeah, 508 U.S. __, 113 S.Ct. 2217 (1992)......... passim

Corporation of Presiding Bishop, C.J.C.L.D.S.S._ v.

POPUL, TIO Ue. BOF (AOD cisvnssvcnsanickestnsasncsesewssarens 10

Elrod v. Harms, 4207 OS. SRT CUS TB) vescecssusecrsecasncssrsscanenssios 15

Employment Division v. Smith, 494 U.S. 872

CPW isch cansisnndmihiinecilaniccecdaovesanainiehedecinnecidakcAua 12, 13, 14

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)...........44. 10

First Assembly of God v. Collier County, Fla., 20 F.3d

DE i Si niciceanniicmmeiabbieaiess: 9,10

Grosz v. City of Miami Beach, Fla., 721 F.2d 729

(11th Cir. 1983), cert. denied, 469 U.S. 827

ESTED isscsntccsevinsisextshaineaiaielbnidsbisamentaunia 9, 10, 11, 12

Islamic Center of Mississippi, Inc. v. City of Starkville,

Miss., 840 F.2d 293 (Sth Cir. 1988)...............00008 10, 11, 12

Keego Harbor Company v. City of Keego Harbor, 657

Fe FSCO Ge, SIE} acnsiicconssinninacenndcrndeaidieeinstindicesin 7

Lakewood v. City of Lakewood, 699 F.2d 303 (6th

Cir.), cert. denied 464 U.S. 815 (1983) .......:cceeeeeee passim

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2nd Cir.

PO PAD \smsiicitekinnannicimioniume lacs voanioumucaeansmineietderons passim

Lujan v. Defenders of Wildlife, 504 U.S. 555

CEPI) sssssctenscsiniasnsininignialshiesuasiaseiadapaanaatan 15, 16, 17

Vv

TABLE OF AUTHORITIES

Pages

Parkview Heights Corp. v. City of Blackjack, 467 F.2d

pee GONG TOT ice ee Bei 18

Simon v. Eastern Kentucky Welfare Rights Org., 426

ih SN EP eaniicr ecm ree 15

U.S. v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669 ( NPT esitihaivisticabinindingsectinace casings 15

U.S. v. Village of Palatine, Ill., 37 F.3d 1230 (7th Cir.

SED nl laid calabro tia ele ie oe Nate 17

Valley Forge Christian College v. Americans United

for the Separation of Church and State, Inc., 454

at is ee a Sere, Ce 14, 15

Village of Arlington Heights v. Metropolitan Housing

Development Co., 429 US. 252 bf, SERIE en eneem 18

Virginia v. American Booksellers Assoc., Inc., 484

SP se EEE tentriniasialSeininastbaneaisonse case oer 16

Statutes

WE San EME pastiiieieciosencl ick ee ee 2, 4, 16

OG ee Oe itinicca acmniiatiacneen ee en 12

42 U.S.C. § 3601 et Pe snbsnveanseciimcbniantesntdtesci nal to 2, 4, 6

Te Sian OID ie sithchiticien ligicihg iat oe aes 2,18

Se TA oe I cece aS tb 2,4

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United States Constitution, Amendment I.................... passim

Other Authorities

Pen es nl rer ee 4,5

No. 95-1381

IN THE

Supreme Court Of The United States

October Term, 1995

THE VILLAGE OF AIRMONT, and its Municipal Officers,

Petitioners,

Vv.

RABBI YITZCHOK LEBLANC-STERNBERG, CHANIE

LEBLANC-STERNBERG, FRED WALFISH, LEWIS

KAMMAN, PARK AVENUE SYNAGOGUE, INC..,

and UNITED STATES OF AMERICA,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF IN OPPOSITION FOR RABBI YITZCHOK

LEBLANC-STERNBERG, CHANIE LEBLANC-

STERNBERG, FRED WALFISH, LEWIS KAMMAN, AND

PARK AVENUE SYNAGOGUE, INC., RESPONDENTS

OPINIONS BELOW

Petitioner has accurately described the Court of Appeals

decision. However, Appendix A of the Petition as filed by

Petitioner is incomplete. Respondents attach the omitted page

of the Court of Appeals decision as Respondents’ Appendix

A. The opinion of the Second Circuit Court of Appeals is

also published at 67 F.3d 412 (2nd Cir. 1995).

STATEMENT OF JURISDICTION

Petitioner has accurately stated the basis for jurisdiction.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment |

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof. . .

42 U.S.C. § 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Con-

Stitution and laws, shall be liable to the party injured in an

action at law...

42 U.S.C. § 3604(a)

The Fair Housing Act (42 U.S.C. § 3601 et seq.) makes

it unlawful:

[t]o refuse to sell or rent . . . or otherwise make un-

available or deny, a dwelling to any person because

of .. . religion.

42 U.S.C. § 3613(a)(1)(A) and 42 U.S.C. § 3602(j)

Under 42 U.S.C. § 3613(a)(1)(A) the Fair Housing Act

confers standing to bring suit on any “aggrieved person.”

An “aggrieved person” includes:

any person who —

(1) claims to have been injured by a discrimina-

tory housing practice; or

(2) believes that such person will be injured by a

discriminatory housing practice that is about to

occur.

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3

STATEMENT OF THE CASE

Petitioner’s statement of the case omits certain key facts

which were central to the determination in Respondents’ fa-

vor of the Court of Appeals for the Second Circuit.

The individual Respondents are members of Respondent

Park Avenue Synagogue, which meets in the home of Re-

spondent Rabbi Yitzchok LeBlanc-Sternberg. His home was

originally situated within the corporate limits of the Town of

Ramapo, New York. Subsequent to the incorporation of the

Petitioner, the home became situated within the limits of the

Village of Airmont.

Orthodox Judaism requires “a relatively high number of

local houses of worship. Daily prayer is required, and the

saying of certain prayers and the reading from the Torah on

the Sabbath require the presence of a ‘minyan’ -- a quorum of

ten males over the age of 13. Orthodox Jews are forbidden to

use cars or other means of transportation during religious

holidays and the weekly Sabbath; thus adherents are required

to walk to their houses of worship.” LeBlanc-Sternberg v.

Fletcher, 67 F.3d 412, 417 (2nd Cir. 1995) (Pet., 7a).

Members of a local group, the Airmont Civic Associa-

tion (“ACA”), were outraged by the Town of Ramapo’s use

of the Home Professional Office (“HPO”) provisions of the

Town’s zoning code to accommodate the home worship needs

of the Orthodox Jewish population in residential areas. A

drive was launched by the ACA and its supporters to incorpo-

rate their own village, specifically “for control over zoning in

connection with the desire to keep Orthodox and Hasidic Jews

out of the Airmont community.” 67 F.3d 418 (Pet., 9a-10a).

The incorporation of Airmont as a Village was finalized

in 1991, and a slate of officers wno were ACA members was

selected. These officers were opposed to home worship by

Orthodox Jews. 67 F.3d 420-421 (Pet., 15a-16a). Five days

later, Respondents filed the instant action alleging violation of

4

the Free Exercise of Religion rights of Respondents under the

First Amendment, pursuant to 42 U.S.C. § 1983, and alleging

violation of 42 U.S.C. § 3601 et seg... Subsequently, Respon-

dent United States filed its action under the Fair Housing Act

against Petitioner. Both actions were consolidated for trial.

In 1993 Airmont enacted a zoning code, which was

identical to the Ramapo code, except for changes to the HPO

section. The Airmont code prohibited “any activities that

come into a residential area so as to detract from the residen-

tial character of the area,” and gave standing to any

“aggrieved person” to request that the Board of Zoning Ap-

peals interpret whether any disputed use was in violation of

the section. 67 F.3d 420 (Pet., 14a-15a).

At trial, the jury found that Petitioner had violated the

rights of these Respondents to the free exercise of their relig-

ion, under 42 U.S.C. § 1983, as well as their rights under 42

U.S.C. § 3601 et seg. However, in the trial of the Govern-

ment action the district court found that the Village had taken

no injurious action against the Orthodox citizens save only to

pass the subject zoning code which the trial court found

“arguably could be taken as a signal for a different interpreta-

tion” than the accommodating solution arrived at by the Town

of Ramapo, but noted that it was equally likely that Airmont

would avoid such an interpretation in light of the almost cer-

tain litigation that would follow. The trial court, in motions

after verdict, struck down the jury’s verdict on the motion of

Petitioner under Fed. R. Civ. P. 50(b), incorporating its

memorandum decision in the Government’s case as a basis

for its decision against these Respondents. 67 F.3d 423-424,

427-431 (Pet., 32a-41a).

On appeal, the Court of Appeals for the Second Circuit

reversed the trial court, noting that the district court’s rea-

soning was, inter alia, internally inconsistent. For example,

the trial court discussed the foreseeable outcome of the Plan-

ning Board, “[vJiewing the evidence in the light most favor-

able to the Government,” not adopting the “Ramapo inter-

5

pretation of the home professional office exception,” 67 F.3d

430 (Pet., 13a-14a). Yet, the court itself neglected to adopt

that view “in the light most favorable” to Respondents, as it

was required to do in ruling on the Rule 50(b) motion of Pe-

titioner and in assessing the jury verdict that found in Re-

spondents’ favor. 67 F.3d 429-31 (Pet., 39a).

Further, the Court of Appeals found ample support for

the finding that “the Village conspired to impede the private

plaintiffs’ exercise of their rights under the First Amendment;

that the Village adopted a zoning code that was intended to,

and would be interpreted to, curtail home synagogues,

thereby deterring Orthodox Jews from purchasing homes in

many Airmont neighborhoods.” 67 F.3d 429 (Pet., 36a).

The Court of Appeals noted with disfavor the:

plethora of statements in the record attributed to

ACA leaders who became Village officials, ex-

pressing anti-Orthodox Jewish sentiments (e.g. by

Kendrick, who eventually became mayor, describ-

ing Orthodox Jews as “foreigners and interlopers,”

who were “ignorant and uneducated” and “an insult

to” the community); Fletcher, who eventually be-

came a trustee (“the only reason we formed this

village is to keep those Jews from Williamsburg out

of here.”); and Cucolo as a trustee (V illage did not

“have to pursue an Article 78 [with respect to Rabbi

Sternberg’s home synagogue], there are other ways

we can harass them”).

67 F.3d 430 (Pet., 39a). Although no damages were awarded,

Respondents and the Government also sought declaratory and

injunctive relief, and the Second Circuit remanded the case

back to the district court for determination of appropriate re-

lief. 67 F.3d 435 (Appendix A-1).

It is important to note that Petitioner has not sought re-

view by this Court of the Second Circuit’s reversal of the trial

court relating to the sufficiency of the evidence to support the

6

jury’s findings that the Petitioner violated the First Amend-

ment and the Fair Housing Act. Thus, this Court is bound by

the evidentiary record as construed by the Second Circuit.

Rather, Petitioner seeks review on the question of

whether (on the assumption that the zoning code was “facially

neutral”), the Court of Appeals for the Second Circuit im-

properly required Petitioner to affirmatively accommodate the

home worship practices of Respondents under the First

Amendment and the Fair Housing Act. Secondly, Petitioner

urges review on issues of standing and ripeness.We respect-

fully submit that the decision of the Court of Appeals for the

~ Second Circuit decision was rightly decided and that none of

Petitioner’s arguments merit review by this Court.

REASONS FOR DENYING THE WRIT

I. THERE IS NO DIVISION IN THE CIRCUITS RE-

GARDING GOVERNMENT ACTION THAT TAR-

GETS RELIGIOUS PRACTICES FOR DISCRIMI-

NATION

Petitioner pronounces a “deep division” among the Cir-

cuits regarding the manner of resolving conflicts between lo-

cal zoning regulations and religious activities restricted or

prohibited by those regulations. While it is correct that some

of the federal Circuits have adopted differing standards re-

garding the resolution of those kinds of conflicts, whatever

their differences may be, such divisions are beside the point

in this case. There is no division, “deep” or otherwise, con-

cerning the invalidity of official government action under the

Free Exercise Clause of the First Amendment when that ac-

tion has, as its object, the targeting of religious belief or

practice for discriminatory treatment. The cases cited by Pe-

titioner do not indicate otherwise. ;

In Lakewood v. City of Lakewood, 699 F.2d 303 (6th

Cir.), cert. denied 464 U.S. 815 (1983) the subject zoning

code effectively prohibited the construction of new churches

7

in all residential areas, and limited such new construction to

ten percent of the area of the city. Id., 699 F.2d 307. How-

ever, as the Court emphasized:

[T]he record does not indicate that the Congrega-

tion may not purchase an existing church or worship

in any building in the remaining ninety percent of

the City.

Id. (emphasis added). Thus, the effect of the zoning code was

not to lock-out all religious worship or any particular mode of

religious practice. But even more importantly, the Court

noted that there was no contention of a discriminatory animus

behind the zoning provision:

Contrary to the Congregation’s arguments, this case

does not present a situation similar to Keego Har-

bor Company v. City of Keego Harbor, 657 F.2d 94

(6th Cir. 1981). In Keego Harbor, a zoning ordi-

nance effectively excluded adult movie theaters

from the city by setting severe spacing limitations.

This court found the ordinance unconstitutional be-

cause the purpose and effect were to eliminate from

the city the exercise of a first amendment right.

Id. (emphasis added).

Thus, the law in the Sixth Circuit supports that position

that when the purpose and effect of zoning is to limit or ex-

clude activities protected by the First Amendment, the regu-

lation must satisfy strict scrutiny (ic. Keego Harbor), but

where the zoning regulation has no such purpose or effect

(i.e. where it is truly a “neutral law” of “general applicabil-

ity,” as in Lakewood) there is no duty to accommodate Free

Exercise activities, particularly where “the activity has no re-

ligious or ritualistic significance’ for the. . .” religious objec-

tors. Lakewood, 699 F.2d 306.

po z ‘Se

In Lakewood, the court could find no Free Exercise significance to

the Jehovah’s Witnesses having to buy an existing worship structure, as

8

While Petitioner stresses the language in Lakewood that

concluded that the effect of the zoning code was simply to

make the plaintiff’s religious practice “more expensive” (Pet.,

7), a Circumstance not per se violative of Free Exercise, Peti-

tioner ignores the broader context of that rule which finds its

source in Braunfeld v. Brown, 366 U.S. 599 (1961). As the

Court in Lakewood points out:

[T]he incidental economic burden [placed on the

plaintiffs in Braunfeld] was not unconstitutional be-

cause neither the purpose nor the effect of the law

was to impede religious observation or to discrimi-

nate among religions.

699 F.2d 306 (emphasis added). In the instant case the Vil-

lage of Airmont was incorporated for the express purpose of

passing zoning restrictions, the purpose and effect of which

was to discriminate against Orthodox Jewish practices. The

enormous and impractical cost of building a free-standing

synagogue on two acres of land was not an incidental finan-

cial effect on Respondents because of Airmont’s “neutral”

and “generally applicable” zoning code; on the contrary, the

enormous cost was the very tool used by the Village founders

to intentionally discourage a disfavored religious group from

moving in.

When a municipality purposefully plans to impose fi-

nancial burdens on a disfavored religious practice as a means

of discriminating against it, the Free Exercise Clause protects

that religious practice, and will sustain the offending law

opposed to their desire to construct a new structure in a zoning area on

which such construction was now prohibited. In the instant case, how-

ever, “[t]he combination of [their religious] requirements makes it im-

portant for Orthodox Jews to be able to gather for worship in congrega-

tions large enough to ensure the presence of a minyan, and close enough

to the congregant’s homes to allow them to walk to services.” LeBlanc-

Sternberg, at 67 F.3d 417 (Pet. 7a-8a).

9

“only in rare cases.” LeBlanc-Sternberg, 67 F.3d 426, quot-

ing from Church of the Lukumi Babalu Aye, Inc., v. City of

Hialeah, 508 U.S. __, 113 S.Ct. 2217, 2233 (1992). “[A]

law targeting religious beliefs as such is never permissible.”

Id., 113 S.Ct. at 2227.

The facts in Lakewood did not include the intentional

targeting of religion, as is the situation in the instant case, and

nothing in Lakewood is inconsistent with the reasoning of this

Court in Lukumi Babalu some ten years later.

Similarly, Petitioner’s citation to Grosz v. City of Miami

Beach, Fla., 721 F.2d 729 (11th Cir. 1983), cert. denied, 469

U.S. 827 (1984) (Pet., 7), is of no avail in establishing a

“division” among the circuits relevant to this case.

Petitioners contention that Grosz contains “nearly identi-

cal facts” (Pet., 7) is simply incorrect. As was the case in

Lakewood, the Grosz facts did not involve a situation where a

municipality intentionally targeted a religious practice for

discrimination through its zoning code. Indeed, in Grosz, the

court stated: “No one contends that zoning laws are based

upon disagreement with religious tenets, or are aimed at im-

peding religion.” 721 F.2d 738.

In the instant case, however, the Second Circuit specifi-

cally found that Petitioner passed its zoning code as an effort

aimed at impeding the religious practices of Orthodox Jews.

Further, the Grosz case was decided almost a decade before

Lukumi Babalu and, therefore, any perceived division arising

from the Grosz decision (or the Lakewood decision for that

matter) is of dubious value as a basis for this Court to grant

certiorari.

While the reasoning in Grosz still has influence in the

Eleventh Circuit, that Circuit has itself distinguished Grosz

from the Lukwmi Babalu paradigm on the basis that the

Lukumi Babalu case involved “a local law targeting” religious

practice for discrimination. First Assembly of God v. Collier

County, Fla., 20 F.3d 419, 423 (11th Cir. 1994).

10

In First Assembly of God, the plaintiffs argued that the

Grosz reasoning was no longer valid law because the Grosz

reasoning was the basis of the trial court’s decision in Lukumi

Babalu, reasoning which was rejected by this Court. The

Eleventh Circuit has concluded that, “{t]he Supreme Court

reversed the application of Grosz, not the holding of Grosz

itself or the reasoning behind it.” Jd., 423 n.4.

Respondents’ respectfully submit that, whatever prob-

lems there may be with the reasoning used in Grosz,’ that rea-

soning is simply not applicable to a case of intentional dis-

crimination, as is the case at bar.

Petitioner’s reliance on Islamic Center of Mississippi,

Inc. v. City of Starkville, Miss., 840 F.2d 293 (Sth Cir. 1988)

is misplaced, since /slamic Center handily distinguishes both

Lakewood and Grosz from the facts in that case.

First, the Court in Islamic Center emphasized that in

Lakewood the evidence showed that the congregation in

question could have purchased an existing church within

ninety percent of the city’s area, or alternatively, could have

performed its worship practices in a non-church building

One of the lesser, but more obvious problems in the Grosz deci-

sion, is its curious reliance on a statement by Supreme Court Justice Vin-

son in a Majority opinion of American Communications Assn. v. Douds,

339 U.S. 382, 397 (1950) (cited by the Grosz court at 721 F.2d 740.) In

fact, Justice Vinson’s comments in Douds are clearly obiter dicta. His

comments inferred a basis for the Supreme Court’s dismissal, for want of

substantiality, of an appeal, in Corporation of Presiding Bishop,

C.J.CL.D.S.S. v. Porterville, 338 U.S. 805 (1949), in which a church

group contended that its First Amendment rights were violated by a mu-

nicipal zoning ordinance which prevented the building of churches and

residential areas.

A further defect is Grosz’s reliance on Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926), a case where this Court construed the constitution-

ality of generalized and comprehensive zoning power within the frame-

work of a Due Process analysis. A First Amendment analysis of zoning

power, which is required in the instant case, was not adjudicated in

Euclid.

11

within that ninety percent area. Islamic Center, 840 F.2d 301.

As the court pointed out, “travel to worship,” which was a

factor for the Islamic students in the Islamic Center case, was

simply not a factor in Lakewood. Id. In the instant case, as in

Islamic Center, special considerations relating to travel to a

worship site are integral to the exercise of faith for the Ortho-

dox Respondents.

The Court in Islamic Center also easily distinguished the

facts in Grosz, where the court noted that the plaintiff could

have conducted services within four blocks of his home, or

had the option of relocating his home to another residential

area of the city where home-worship was permitted (an area

comprising some fifty percent of the city). 840 F.2d 301.in

the instant case, nearly all of Airmont is residential, and all of

the residential areas are subject to a zoning code making

group worship in a home a non-permitted use unless located

in a Suitable structure on a two-acre lot. That restriction,

coupled with the unique needs of the Orthodox community to

be within walking distance of a Sabbath worship site, empha-

size the similarity of the instant facts to those in Islamic Cen-

ter, facts which are clearly dissimilar to those in Lakewood

and Grosz.

The court in Islamic Center further distinguished the

facts in that case from the facts decided in the Eleventh Cir-

cuit and Sixth Circuit Cases by pointing out the evidence of a

discriminatory motive in the Islamic Center record. The

court noted that the zoning board had “applied different stan-

dards to approving a Muslim mosque than it had adopted for

worship facilities of other faiths.” Jd., 303. Similarly, in the

instant case the record shows that the ACA, the prime mover

behind Airmont’s incorporation and the push for its own

zoning code, opposed even a slight variance for an Orthodox

Jewish synagogue, yet did not oppose a major variance for a

Catholic church structure “because this is the Catholic church

that wants it.” LeBlanc-Sternberg, 67 F.3d 431 (Pet., 41a).

12

Lastly, even assuming arguendo a division in the Elev-

enth, Sixth, Fifth and Second Circuits, there is another reason

why such a division would be ultimately illusory. The deci-

sions in Lakewood, Grosz and Islamic Center all pre-date this

Court’s decisions in Employment Division v. Smith, 494 U.S.

872 (1990) and Lukumi Babalu, as well as Congressional pas-

sage of the Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. § 2000 bb (restoring the “compelling

interest” and “least restrictive means” tests in light of

Employment Division v. Smith). How the Eleventh or Sixth

Circuits would decide cases whose facts implicate Smith,

Lukumi Babalu, or RFRA is. unknown, and undermines the

argument made by Petitioner.

Il. THE SECOND CIRCUIT’S OPINION PROPERLY

APPLIED CHURCH OF THE LUKUMI BABALU

AYE, INC. V. CITY OF HIALEAH

Petitioner is incorrect in asserting that in the instant case

the Second Circuit opinion “mandates some type of accom-

modation by the municipality” toward the religious practices

of the Respondents. Pet., 9. While we do agree that, if the

facts in this case had not shown intentional discrimination by

the Village of Airmont, that nevertheless the Free Exercise

Clause would require some level of accommodation to the

religious practices of the Respondents, those were not the

facts in this case, and that was not the decision rendered by

the Second Circuit. Rather, the Second Circuit decided that

the Village of Airmont had intentionally discriminated against

the religious practices of the Respondents through its zoning

code, in violation of the First Amendment.

Indeed, the Second Circuit specifically declined to de-

cide the “accommodation” issue while noting that “it is un-

clear to what extent this prohibition [of the Free Exercise

Clause] requires states affirmatively to accommodate relig-

ious practice” (citing Lukumi Babalu). LeBlanc-Sternberg,

67 F.3d 426 (Pet., 29a). Petitioner is also incorrect in assert-

ing that the Second Circuit decision in this case “is a total

13

embrace of the four-justice dissenting opinion in Smith, as

well as the concurring opinion by Justice Souter in Lukumi

Babalu Aye.” Pet., 10.

Whatever reasons may exist for revisiting the rule in

Smith (Lukumi Babalu, 508 U.S. __, 113 S.Ct. 2217, 2240

(Souter, J., concurring in part, and concurring in the Judg-

ment), 2250 (Blackmun, J., with whom O’Connor, J., joins,

concurring in Judgment)), they should not include the mis-

taken belief that the Second Circuit in the instant case rejected

the majority rule in Smith. In the instant case, the Second

Circuit adopted the Lukumi Babalu analytical paradigm be-

cause this case, like Lukumi Babalu, involved intentional tar-

geting of a religious practice by a local municipality. Lukumi

Babalu did not overturn Smith.’

To a great degree, Petitioner’s error lies in the insistence

that “neutrality” and “general applicability,” as those terms

arise under Smith, and as further construed in Lukumi Babalu,

are limited only to laws that are “facially neutral.” Thus, be-

cause Petitioner denominates its zoning ordinance as “facially

neutral” (Pet., 4) (emphasis added), Petitioner mistakenly as-

sumes that the neutrality analysis ends there.

In fact, Lukumi Babalu specifically rejected the conten-

tion that this Court’s “inquiry [with respect to neutrality un-

der the Free Exercise Clause] must end with the text of the

laws at issue,” adding that:

> Admittedly, in Lukwmi Babalu, Justice Souter, concurring in the

Judgement, had “doubts about whether the Smith rule merits adherence,”

(113 S.Ct. at 2240) and Justice Blackmun and Justice O’Connor, while

concurring in the Judgement, expressed their position that they “continue

to believe that Smith was wrongly decided because it ignored the value

of religious freedom as an affirmative individual liberty and treated the

Free Exercise Clause as no more than an anti-discrimination principal,”

(113 S.Ct. at 2250) (citations omitted).

14

Facial neutrality is not determinative. The Free Ex-

ercise Clause, like the Establishment Clause, ex-

tends beyond facial discrimination.

113 S.Ct. at 2227. Rather, the ultimate test is whether “the

object of the ordinances” is the “suppression . . . of the central

element of [Respondents’] worship service.” /d.

Finally, Justice Souter’s concurrence in Lukumi Babalu

conceded that:

The proposition for which the Smith rule stands,

then, is that formal neutrality, along with general

applicability, are sufficient conditions for constitu-

tionality under the Free Exercise Clause. That

proposition is not at issue in this case, however, for

Hialeah’s animal-sacrifice ordinances are not neu-

tral under any definition, any more than they are

generally applicable.

113 S.Ct. at 2242 (emphasis added).

If Hialeah’s animal sacrifice laws were not neutral under

“any definition,” then likewise, the zoning ordinances of the

Village of Airmont in this case are not “neutral” or “generally

applicable” under any definition. Thus, revisiting the use of

those terms in the Smith case is not compelled by the Second

Circuit’s opinion in this case.

Ill. THIS ACTION DOES NOT VIOLATE RULES RE-

GARDING STANDING OR RIPENESS

Petitioner contends that this Court should review Re-

spondents’ lack of standing to have brought this case in the

first instance, arguing that Respondents did not suffer any

injury and failed to identify any future harm that possessed

“jmminence or immediacy,” Pet., 10-11.

At a minimum, the Constitution requires plaintiffs to

show they have suffered “some actual or threatened injury as

a result of the putatively illegal conduct of the defendant.”

Valley Forge Christian College v. Americans United for the

15

Separation of Church and State, Inc., 454 U.S. 464, 472

(1982). The injury must be traceable to the challenged action

and be “likely to be redressed by a favorable decision.” /d.;

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,

38, 41 (1976). The injury must result from an invasion of a

legally protected interest which is (1) concrete or particular-

ized and (2) actual or imminent, not conjectural or hypotheti-

cal. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Within the foregoing analysis of standing, Petitioner ar-

gues that because Respondents did not suffer any past

“actual” injury (as Respondents had already obtained permis-

sion from the Town of Ramapo to conduct their home wor-

ship services, prior to the Airmont incorporation), the only

remaining issue was whether or not Respondents showed a

sufficient “imminent” threatened injury that was not conjec-

tural or hypothetical.

The loss of First Amendment freedoms, for even mini-

mal periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Indirect

damage to the use of one’s land, which is the subject of gov-

ernmental action, is sufficient to confer standing. U.S. v. Stu-

dents Challenging Regulatory Agency Procedures, 412 U.S.

669 (1973).

Airmont’s incorporation, and the changes to the HPO

provisions of its zoning codes, clearly presented the Respon-

dents with a situation where Rabbi Sternberg’s home was a

non-conforming use for purposes of home synagogue wor-

ship. Pet., 14 n.2. This, coupled with the reality that the Vil-

lage of Airmont (not the Town of Ramapo) would be the

government entity enforcing and policing the Respondents’

use of the Sternberg home for worship purposes, show a like-

lihood of imminent harm to the Respondents imposed by

Airmont’s incorporation and the passage of its zoning law.

Respondents have contended that the legal paradigm for

the First Amendment issues in this case lies within the pa-

16

rameters of the decision in Lukumi Babalu, supra. It is im-

portant to note that the plaintiff church in that case filed an

action under 42 U.S.C. § 1983, “[flollowing enactment of

[the] ordinances. . . ,” with no hint that the City of Hialeah

had sought to specifically enforce its ordinances against the

plaintiff church. /d., 113 S.Ct. at 2224.

In the instant case, the Second Circuit determined that

“...there was ample support for the jury’s implicit finding

that Airmont’s zoning code would be interpreted to restrict

the use of home synagogues, that the motivation behind the

enactment was discriminatory against Orthodox and Hasidic

Jews, and that Airmont pursued this goal jointly with A.C.A.”

67 F.3d 431 (Pet., 41a). As the Second Circuit pointed out,

“the victim of a conspiracy to violate First Amendment free-

doms has standing to bring suit before the conspiracy has re-

sulted in economic or tangible injury.” 67 F.3d 426 (Pet.,

30a), citing Virginia v. American Booksellers Assoc., Inc.,

484 U.S. 383, 393 (1988) (facial First Amendment challenge

to a state law limiting the display of sexually explicit mate-

rial, which was brought prior to the law’s enforcement, was

determined not to be premature).

Because Petitioner in the instant case does not challenge

the Second Circuit’s evaluation of the sufficiency of the evi-

dence to support the jury verdict, we would submit that the

Second Circuit’s conclusions as to the probable harm that

would be caused to Respondents by Petitioner’s zoning code

must be upheld. That being the case, Respondents have more

than adequately demonstrated a concrete and imminent injury

to their First Amendment rights sufficient to satisfy the re-

quirements of standing under Article III of the U.S. Constitu-

tion.

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) does

not compel a different conclusion. In Lujan, wildlife and en-

vironmental organizations filed suit challenging an agency

rule limiting a section of the Endangered Species Act of 1973

geographically to the borders of the United States and the

17

high seas, but excluding coverage to any actions having a

wildlife impact in foreign nations. This Court found a lack of

standing because, inter alia, standing is difficult, if not im-

possible to show where third parties, rather than the com-

plaining environmental and wildlife organizations themselves,

were the object of the governmental decision which was be-

ing objected to.

The organizations had filed affidavits claiming that some

of their members intended to revisit sites that would be af-

fected by the agency decision at some indefinite, future time.

This Court rightly determined that a vague intent to take some

action that might expose the complaining party to offending

government action at some indefinite, future time, does not

constitute an “imminent” injury for standing purposes.

By contrast, in the instant case, the palpable and concrete

injury that is imminent as to Respondents lies in the an-

nounced intention of Petitioner to prohibit home synagogue

worship through its strict zoning code and its strict zoning

interpretation. The imminence of the injury lies not in the

vague intentions of the complaining parties (as was the case

in Lujan), but entirely within the declared intentions of Peti-

tioner to discriminate against the religious practices of Re-

spondents.

Petitioner also cites a lack of ripeness as a basis for this

Court to grant certiorari. However, Petitioner’s citation to

U.S. v. Village of Palatine, Ill., 37 F.3d 1230 (7th Cir. 1994)

must lead us to the conclusion that they are “hoist on their

own petard.” Indeed, Petitioner’s own argument cites the

following determinative reasoning of the Seventh Circuit:

[I]f the Plaintiff’s claim were of discriminatory in-

tent, rather than failure to make a reasonable ac-

commodation, this claim might well be presently

ripe even though Oxford House-Mallard has not

sought a special use approval.

Pet., 19-20 n.4; 37 F.3d 1233 n.3.”

18

Thus, where it has been established that a zoning ordi-

nance will likely be applied in a discriminatory manner, it is

unnecessary that the municipality so apply it before the ordi-

nance may properly be challenged.” (LeBlanc-Sternberg, 67

F.3d 425 (Pet., 26a), citing Parkview Heights Corp. v. City of

Blackjack, 467 F.2d 1208, 1214-16 (8th Cir. 1972).)

The doctrine of ripeness is a prudential doctrine of this

Court, taking into consideration the fitness of the issues for

judicial decision-making, and the hardship to the complaining

party of withholding judicial consideration. Abbott Laborato-

ries v. Gardner, 387 U.S. 136 (1967). Where, as here, there

is powerful and established evidence of Petitioner’s plan and

governmental action to discriminate against Respondents’

Free Exercise rights, and where Petitioner has passed a zoning

ordinance to implement that discriminatory intent, it would be

both imprudent and futile to require Respondents to wait until

Petitioner actually brings enforcement proceedings against

their home synagogue activity as a precondition to filing suit.

The threat and the injury to Respondents has been

proven to a probability (and not a mere possibility), and that,

coupled with the proven discriminatory intent of Petitioner

should resolve any standing or ripeness concerns. Village of

Arlington Heights v. Metropolitan Housing Development Co.,

429 US. 252 (1977). (Minority plaintiff had standing to

.challenge exclusionary zoning scheme, where plaintiff would

“probably” have moved into the housing project if it were

built.)

Respondents respectfully submit that this Court need not,

and should not, venture into uncharted and unnecessary con-

struction of the Fair Housing Act’s definition of an

“aggrieved” person, merely because it may provide guidance

to future litigants (See Pet., 11).

Ironically, if this Court were to accept the invitation of

Petitioner to launch into such unnecessary construction of a

Congressional enactment, that act of judicial review would,

19

itself, be inconsistent with the very purposes behind the

standing requirements of Article III and the ripeness doctrine,

both of which serve to limit adjudication to actual, and not

abstract, legal controversies.

CONCLUSION

Respondents respectfully submit that Petitioner has not

only failed to identify any important question of federal law

for this Court to review or any “deep division” among the

Circuits, but has also failed to demonstrate any reason why

the decision of the Second Circuit Court of Appeals regarding

the discriminatory nature of Petitioner’s conduct should not

be upheld. We request that this Court deny the Petition for

Writ of Certiorari.

Respectfully submitted,

Of Counsel: Craig L. Parshall

John W. Whitehead Counsel of Record

Anne-Marie Amiel Law Offices of

THE RUTHERFORD INSTITUTE Craig L. Parshall

1445 E. Rio Road 910 Princess Anne St.,

Charlottesville, VA 22901 Suite 101

(804) 978-3888 Fredericksburg, VA 22401

(540) 371-5427

Reuben Koolyk Attorney for Individual

Arnold & Porter Respondents

399 Park Ave.

New York, NY 10022

(212) 715-1000

March 27, 1996

etieaiialitiend ree

A-1

On Remand, the distric court should, applying Fair

Housing Act principles, fashion appropriate equitable reme-

dies.

CONCLUSION

We have considered all of the parties’ arguments in sup-

port of their respective positions on these appeals and, except

to the extent indicated above, have found them to be without

merit. For the reasons stated above, we conclude that the

district court erred in granting the Village of Airmont judg-

ment as a matter of law dismissing the private plaintiffs’ FHA

and civil rights claims; that the jury’s verdict with respect to

these claims was dispositive with regard to the issue of the

Village’s liability in the government’s suit under the FHA;

and that the private plaintiffsand the government were enti-

tled to relief.

We reverse so much of ydgment entered in the private

plaintiff's action, appealed in Nos. 94-7103 and -6125, as

dismissed the private plaintiff’ claims against the Village; we

affirm so much of that judgnent as dismissed the private

plaintiffs’ claims against the individual defendants; and we

dismiss the cross-appeal as moot. The private plaintiffs’ ac-

tion is remanded for the enty of judgment awarding those

plaintiffs nominal damages ard such injunctive and other re-

lief as may be appropriate.