Opposition Brief — Village of Airmont v. LeBlanc-Sternberg

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No. 95-1381 ;

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1995

VILLAGE OF AIRMONT, NEW YORK, ET AL., PETITIONERS

RABBI YITZCHOK LEBLANC-STERNBERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAys, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

JESSICA DUNSAY SILVER

MARIE K. MCELDERRY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that

the evidence justified a jury verdict finding that

petitioners had violated the Fair Housing Act, 42

U.S.C. 3601 et seq., in that they intentionally dis-

criminated against respondents and other Orthodox

and Hasidic Jews by enacting a zoning ordinance for

the purpose of excluding places of worship necessary

to the practice of their religion.

2. Whether the court of appeals correctly held that

7

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respondents’ claims warranted injunctive relief

TABLE OF CONTENTS

Page

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EE i Se Te ER ee ORE mentikplianideks fotcintions 17

TABLE OF AUTHORITIES

Cases:

American Construction Co. v. Jacksonville, T. &

GN ER REE ER ce 2G. | Rn 12

Braunfeld v. Brown, 366 U.S. 599 (1961) ................ 13

Brotherhood of Locomotive Firemen v. Bangor &

Aroostock R.R., 389 U.S. 327 (1967) ....................... 12

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

NOs SE We, TP CRUD voce deceniccccensaccescsonccsocce 13

Employment Div., Dep't of Human Resources v.

RE TGR ys Ae) 13

Farmer v. Brennan, 114 S. Ct. 1970 (1994) ............. 16

First Assembly of God of Naples, Florida, Inc. v.

Collier County, 20 F.3d 419, modified on denial

of rehearing, 27 F.3d 526 (11th Cir. 1994), cert.

CRO, BEG Ors FO CRO OOD cbicccesccecnsvassccedcossccnceses 14-15

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

(11th Cir. 1983), cert. denied, 469 U.S. 827 (1984) 12, 14

Hamilton-Brown Shoe Co. v. Woif Bros. & Co.,

a ac ckiiuesaubsepscswavene 12

Islamic Center of Mississippi, Inc. v. City of

Starkville, 840 F.2d 293 (5th Cir. 1988) ................4. 15

Keego Harbor Co. v. City of Keego Harbor, 657

IE NE, NOMI bo varrivcnrccsseesicessnscssecsersscesescnces 13

Lakewood, Ohio Congregation of Jehovah’s Witnesses,

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

cert. denied, 464 U.S. 815 (1988) .................006 12, 13, 14

(IIT)

Cases—Continued:

LeBlanc-Sternberg v. Fletcher:

TOe ©, Bes BBG CGT. SIDE) wscscnsvsiscsecccsestscsns

TORE. TDs BOR GEA PEs 2c NUM AD aecnssavvessnsesisoncvacsece

No. 91 Civ. 2550 (GLG), 1996 WL 208307 (S.D.N.Y.

PO Ta OS ink i eacikgccas cist avecieliommbnccaveabasuiessionds

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

CE OIEP csincsvonccesniasdeeeeaiensmcudaeesaipvecesvateniiapmatelteweidabes

Park View Heights Corp. v. City of Black Jack,

SBT FF Dk. TE CSG Da, BGA) sacs csncdnsivesincesccensecsacess

Pennsylvania v. West Virginia, 262 U.S. 553

i TUEID .s sagshsiscecasnrunnscudciaps civechaais meaneenteaeatetaar aid «ok.

Sherbert v. Verner, 374 U.S. 398 (1963) ..................

Swift & Co. v. United States, 276 U.S. 311 (1928) .

United States v. City of Black Jack, 508 F.2d 1179

(8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975) ...

United States v. City of Parma, 661 F.2d 562

(6th Cir. 1981), cert. denied, 456 U.S. 926 (1982) .....

United States v. Village of Airmont,

No. 91 Civ. 8453 (GLG), 1996 WL 208307 (S.D.N.Y.

Ane. Tb, SOUR: stiacitiniscicssttrsarinvcsovtsestndiks

Virginia v. American Booksellers Association, Inc.,

APRA TT. Te Ct nso kerah cates catia insddavedueesversaiabnaipderass

Virginia Military Institute v. United States,

153 S. Ct. BORE Ge sacs ecicdtds tinesacstsstasctaneiss

Whitmore v. Arkansas, 495 U.S. 149 (4990) ...........

Wisconsin v. Yoder, 406 U.S. 205 (1972) .................

Constitution, statutes and rule:

U.S. Const. Amend. I (Free Exercise Clause) ...........

1]

1]

16

12

15

13

6,7

9, 10, 12, 15, 16

Fair Housing Act, 42 U.S.C. 3601 et seq. ............c0e000

S SORE), 42: UBC. BOD RINED wrsesevccnccsccssecsseccsss

6, 11

16

Statutes and rule—Continued:

Religious Freedom Restoration Act of 1993,

ars SI OU itive seiteesscoxicsccenearsssencndineavss

Se SA BE ante Diclaess tuccntprcnaetuhinss screialecenci knees

Page

13

10

10

9

In the Supreme Court of the Gnited States

OCTOBER TERM, 1995

No. 95-1381

VILLAGE OF AIRMONT, NEW YORK, ET AL., PETITIONERS

Vv.

RABBI YITZCHOK J]L.EBLANC-STERNBERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

49a)' is reported at 67 F.3d 412. The opinions of the

district court (Supp. Pet. App. 5la-56a, 57a-89a) are

reported at 846 F. Supp. 294 and 839 F. Supp. 1054,

respectively.

JURISDICTION

The judgment of the court of appeals was entered on

September 21, 1995. A petition for rehearing was

denied on November 28, 1995. Pet. App. 50a. The

| The appendix to the petition does not include the last page

of the court of appeals’ opinion. It is attached as an appendix

to the LeBlanc-Sternberg Brief in Opposition.

(1)

petition for a writ of certiorari was filed on February

26, 1996. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

1. This litigation arose out of the incorporation of

the Village of Airmont, New York, in 1991. Prior to

incorporation, the Airmont community was an unin-

corporated area of the Town of Ramapo, New York.

During the 1980s, the number of Orthodox Jews

(including Hasidic Jews, a subgroup of Orthodox

Jewry) residing in Ramapo increased dramatically.

Pet. App. 7a. In most residential areas, however,

Ramapo’s zoning code would not allow a place of

worship to be located on a lot of less than two acres,

and “[cJonstruction of a synagogue on such a lot

would cost as much as $750,000, an expenditure that

would require the support of approximately 150

families, far beyond the number of Orthodox Jewish

families living near each other in Airmont.” Jd. at 8a.

Unlike adherents of other religious faiths, Orthodox

Jews cannot travel substantial distances to a place of

worship for services or prayer because the tenets of

their religion do not permit them to use mechanical

means of transportation on the Sabbath or on certain

religious holidays. Jd. at 7a. Strict observance by

Orthodox Jews also requires daily worship, and

certain prayers may be said only if a “minyan,” a

group of ten males at or above the age of thirteen, is

present. Jbid. As a consequence. Orthodox Jews

must live within walking distance of a place where

they can congregate for worship. /d. at 7a-8a.

In the mid-1980s, Ramapo accommodated the needs

of Orthodox Jews for a place of worship near their

homes by relying on a provision of its zoning code

regarding “home professional office[s],” which per-

mits members of certain “learned professions,” in-

cluding clergy, to operate offices within their homes,

subject to certain restrictions. Pet. App. 8a. Ramapo

interpreted the zoning code provision to permit rabbis

to conduct worship services in their homes, subject to

limitations on the number of persons who could

gather at any given time. /d. at 8a-9a. Ramapo also

enacted a change in its zoning code to permit multi-

family dwellings in a small section of town where a

group of Hasidic Jews resided. /d. at 9a.

When a group of Hasidic Jews purchased another

parcel of land in the Airmont area, a group of Ramapo

residents from that area, who were members of the

Airmont Civic Association (ACA), began efforts to

incorporate Airmont as a village. As an incorporated

village, separate from Ramapo, Airmont would be able

to have its own zoning code. Pet. App. 9a.

The ACA sought incorporation as a village with the

expressed intent of keeping Orthodox and Hasidic

Jews out of the Airmont community. Pet. App. 9a-10a.

For example, at an ACA meeting in August, 1986,

ACA leaders read aloud a response to a poll conducted

by the ACA of Airmont residents that stated:

{Wlhat would be better, for us to loose [sic] our

homes for a religious sect or for us to live as we

have lived for the past 25 years * * *.

* * K K *

* * * [L]et the people in the unincorporated

Area of Ramapo, go ahead and fight for what they

believe in. Instead of giving up for what we’ve

worked very hard for, to a bunch of people who

insist on living in the past. I am not prejudice [sic]

in any way, shape or form but i [sic] will not have a

hasidic community in my backyard.

Id. at 10a. (emphasis in original). The minutes of the

same meeting reported predictions of “a grim picture

of a Hasidic belt from Rockland through Orange &

Sullivan counties.” Jbid. At an ACA meeting shortly

after the land purchase, an attendee stated that

“everybody knows * * * why the Airmont Civic

Association was formed. What does the Airmont Civic

Association and the proposed village plan to do to keep

these Hasidum [sic] out?” Jbid. The ACA’s original

president, James Filenbaum, told the developer of the

Hasidic Jews’ land parcel that “the reason of forming

this village is to keep people like you out of this

neighborhood.” Jbid. At another ACA meeting, an

attendee stated that “the only reason we formed this

village is to keep those Jews from Williamsburg [a

Hasidic community in Brooklyn, New York] out of

here.” Jd. at lla.

A referendum on incorporation of Airmont was held

on January 30, 1989, and the vote was in favor of

incorporation by a margin of 3 to 1. Pet. App. lla.

Formal incorporation was delayed, however, by

litigation in state court challenging the manner in

which the referendum was conducted. Meanwhile, the

ACA continued to oppose actions by the Town of

Ramapo to approve zoning variances that would allow

Orthodox Jewish houses of worship. For example,

ACA opposition, including litigation in state court,

delayed the Town’s approval of an application by a

rabbi to construct a free-standing synagogue on a lot

that was 1.926 acres, slightly under the two-acre

minimum required by the zoning code. Jd. at 13a.

In addition, ACA members went before the Ramapo

Planning Board to oppose respondent Rabbi LeBlanc-

Sternberg’s application to conduct worship services

in his home. In the course of doing so, they expressed

anti-Orthodox sentiments and stated that Orthodox

Jews should not have moved into the area, since they

knew when they did so that there were no houses of

worship. Pet. App. 18a-14a. Ramapo initially denied

the application, then twice approved it, but the ACA

financed two successful state court challenges to the

approvals. Jd. at 14a. Ramapo approved the applica-

tion for a third time, including certain restrictions on

the number of congregants and restricting home

worship to Jewish holidays and the Sabbath. Jbid. By

then, the Village of Airmont was incorporated and it

decided not to pursue a third state court challenge. A

village trustee and former ACA board member stated

that the Village did not need to pursue another state

court challenge since “there are other ways we can

harass them.” Jbid. An ACA member, who was

later appointed to the Airmont Planning Board,

and others stationed themselves outside Rabbi

LeBlanc-Sternberg’s house to count the number of

congregants (ibid.), and “conducted surveillances of

Orthodox Jewish homes at prayer times” (id. at 16a).

2. a. The Village of Airmont was formally incor-

porated on April 10, 1991. Pet. App. lla. On April 12,

1991, the private respondents, a group of Orthodox

Jewish residents of the Village of Airmont, including

Rabbi LeBlanc-Sternberg, filed a complaint in the

United States District Court for the Southern

District of New York, against the Village, the ACA,

Ramapo and several leaders of the incorporation

movement, claiming that the incorporation of the

Village had been undertaken for the purpose of

excluding Orthodox Jews, in violation of various

federal laws, including the Fair Housing Act (FHA),

42 U.S.C. 3601 et seqg., and the First Amendment.

They sought damages and injunctive relief, and moved

preliminarily to enjoin the election of the Village

mayor and board of trustees that was scheduled for

May 16, 1991. Pet. App. 12a. The district court denied

an injunction on the grounds that respondents

had failed to establish irreparable harm. LeBlanc-

Sternberg v. Fletcher, 763 F. Supp. 1246, 1250-1252

(S.D.N.Y. 1991). Shortly thereafter, the ACA’s slate

of candidates was elected and took office as the

Village Mayor and the members of its Board of

Trustees. Pet. App. 12a.

On December 17, 1991, the United States filed suit

against the ACA, the Village, and the Village trust-

ees in their official capacities, alleging that the in-

corporation of Airmont had been accomplished “for

the purpose of excluding Orthodox Jews” from the

Village by, inter alia, imposing burdensome zoning

and other restrictions upon Orthodox Jewish places of

worship in the Village, in violation of the FHA. The

United States sought declaratory and injunctive

relief. Pet. App. 12a.

In January, 1993, the Village of Airmont adopted a

zoning code. Pet. App. 14a. The code contained sev-

eral modifications of the “home professional office”

provision of the Ramapo zoning code and stated the

Village’s intention that that provision “not generate

activities that come into a residential area so as to

detract from the residential character of the area.”

Id. at 15a. The Village appointed a board of appeals

and a planning board to interpret and apply the code.

One of the appointed board members was an ACA

member who had stated that most persons were

opposed to home houses of worship; he also had

participated in the surveillance of Orthodox Jewish

homes at prayer time. Jd. at 15a-16a. The mayor and

three of the four trustees who adopted the zoning code

all “testified at trial that they were opposed to the

Ramapo-type interpretation of the [home professional

office] provision to allow worship services in the

homes of clergy.” Jd. at 16a. Respondents contended

that, in light of the circumstances surrounding the

adoption of the zoning provision, the interpretation it

would be given was a foregone conclusion. See ibid.

b. The two cases were consolidated and proceeded

to trial. The damages claims by the private respon-

dents were tried to a jury at the request of peti-

tioners; the government’s suit was tried to the court.

Pet. App. 12a-13a.* On December 13, 1993, after eight

weeks of trial and a week of deliberations, the jury

returned a verdict against the Village, finding that it

had violated private respondents’ rights under the

FHA and had conspired to violate their rights under

the First Amendment. Jd. at 18a-19a. The jury

awarded no damages. /d. at 19a. The jury returned a

verdict in favor of the individual defendants. /d. at

18a.

Two days after the jury verdict, the district court

dismissed the government’s suit. Pet. App. 19a; Supp.

2 On December 24, 1991, the district court had denied

petitioners’ motion to dismiss the private suit, rejecting, inter

alia, petitioners’ challenge to the private respondents’ stand-

ing, to the justiciability of their claims, and to their statement

of a cause of action. LeBlanc-Sternberg v. Fletcher, 781 F.

Supp. 261 (S.D.N.Y. 1991).

* Claims against some original defendants were settled or

dismissed prior to trial and a default judgment had been

entered against the ACA. Pet. App. 17a.

8

Pet. App. 57a-89a. The court found that there was no

basis for injunctive relief because the Village of

Airmont had not taken any actions that violated the

rights of Orthodox Jews in that, since incorporation,

it had enacted, but not interpreted, the zoning code.

The court stated that, although the differences be-

tween the Airmont code and the Ramapo code “argu-

ably could be taken as a signal for a different

interpretation,” the Village “might not” interpret its

code to prevent the use of home houses of worship by

Orthodox and Hasidic rabbis for worship services.

Pet. App. 19a; Supp. Pet. App. 77a-79a. The court

dismissed the case, notwithstanding its acknowledg-

ment that, “[v]iewing the evidence in the light most

favorable to the Government, we can foresee that the

{|Airmont] Planning Board and the Zoning Board of

Appeals (to the extent the matter might be submitted

to it) will not adopt the Ramapo interpretation of the

home professional office exception.” Pet. App. 20a.

The court also recognized that the absence of actions

against the Orthodox and Hasidic Jews in Airmont by

the Village or the trustees since the incorporation of

the Village could have been caused by the pendency of

the instant litigation. Jbid. The court concluded

that, “if there is any action taken in the future which

violates their rights, the United States Government

and other plaintiffs will not be timorous about suing.

Consequently, we see no basis or need for injunctive

relief.” Jd. at 20a-2la. The court believed that

injunctive relief, as requested by the United States,

to prohibit petitioners from denying persons their

constitutional rights “was unnecessary because it

would merely enjoin acts that are already illegal.” Jd.

at 21a; Supp. Pet. App. 79a.

9

The district court also denied private respondents

any injunctive relief. Pet. App. 2la. Three months

after trial, on March 16, 1994, the district court also

granted petitioners’ motion for judgment as a matter

of law under Federal Rule of Civil Procedure 50(b).

Pet. App. 22a; Supp. Pet. App. 5la-56a. The court

viewed the jury verdict against the Village as inter-

nally inconsistent because the jury had found that the

Village had violated the private respondents’ FHA

rights and conspired to violate their constitutional

rights to the free exercise of religion and free speech,

but “did not award any damages[,] not even the $1

nominal damages it could have awarded on the civil

rights claim.” Supp. Pet. App. 52a. The court

incorporated in its findings the facts it had found and

the reasoning set forth in its decision dismissing the

government's suit. Jd. at 53a. The court also rejected

the argument that petitioners’ actions had a chilling

effect on the respondents’ First Amendment rights

and concluded that, because the private respondents

already had their zoning permits, the worst situation

they would face, if the Airmont code were to be

interpreted differently from the Ramapo code, would

be as a non-conforming use. Pet. App. 23a; Supp. Pet.

App. 54a.

3. The court of appeals reversed the judgments

dismissing the private respondents’ and the United

States’ claims against the Village.‘ Pet. App. la-49a;

LeBlanc-Sternberg Br. in Opp. App. Al. The court

* The court affirmed the judgment dismissing the private

respondents’ suit against the individual defendants and dis-

missed the cross-appeal of two of the individual defendants as

moot. Pet. App. 6a, 44a-46a; LeBlane-Sternberg Br. in Opp.

App. Al.

10

remanded for an award of nominal damages and

injunctive relief in the private suit and for declara-

tory and injunctive relief in the United States’ action.

LeBlane-Sternberg Br. in Opp. App. A-1.

The court held that “the evidence was sufficient to

establish that Airmont violated the private [respon-

dents’] rights under the Fair Housing Act and the

First Amendment; that the district court was not

entitled to set aside the jury’s verdict against the

Village on those claims on the basis of the court’s

own findings in the government’s action; that in light

of the established violation of their rights, the private

[respondents] were entitled to an award of nominal

damages; that the jury’s verdict against the Village

constituted collateral estoppel that required the

court to find that the government had established a

violation by the Village; and that in ruling that

injunctive relief was not appropriate, the court failed

to apply pertinent [Fair Housing Act] principles.”

Pet. App. 24a-25a. The court found that, when viewed

in the light most favorable to the private respondents,

“there was ample support for the jury’s implicit

finding that Airmont’s zoning code would be inter-

preted to restrict the use of home synagogues, that

the motivation behind the enactment was discrimina-

tory animus toward Orthodox and Hasidic Jews, and

that Airmont pursued this goal jointly with ACA.”

Id. at 41a. Accordingly, private respondents estab-

lished the Village of Airmont’s liability on their

claims under the FHA, the First Amendment, and 42

U.S.C. 1983 and 1985(3), entitling them to nominal

damages. Pet. App. 36a-42a. The court ordered the

district court to consider whether injunctive relief in

favor of private respondents was appropriate in light

of the jury’s verdict. Jd. at 44a.

1]

The court of appeals held that the United States

was entitled to a declaratory judgment under its FHA

claim. Pet. App. 47a-48a. In addition, the court held

that the United States was entitled to an injunction

“prohibiting the application of the Airmont zoning

code in the discriminatory manner found to be pre-

dictable from the evidence in this record.” Jd. at 49a.

The court of appeals denied a petition for rehearing

on November 11, 1995. Pet. App. 50a.°

ARGUMENT

The United States brought suit under the Fair

Housing Act (FHA), 42 U.S.C. 3601 et seq., in order to

prevent the Village of Airmont and its officials from

fulfilling their expressed intent to keep Orthodox and

Hasidic Jews from living and practicing their religion

within the Village. Petitioners do not challenge the

merits of the court of appeals’ decision under the

FHA. There is, indeed, no basis for doing so in light

of well-established principles that forbid a govern-

ment from taking action with the purpose of ex-

cluding a class of persons protected by the FHA from

residing within its jurisdiction. See, e.g., United

States v. City of Parma, 661 F.2d 562 (6th Cir. 1981),

cert. denied, 456 U.S. 926 (1982); United States v. Cit y

of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert.

denied, 422 U.S. 1042 (1975). Petitioners, instead,

assert that there is a conflict among the circuits con-

® On remand, the district court entered injunctive relief

against the Village in both cases, awarded the private respon-

dents nominal damages and entered declaratory relief in the

government’s case. United States v. Village of Airmont, No.

91 Civ. 8453 (GLG), 1996 WL 208307, 208244 (S.D.N.Y. Apr. 25,

1996); LeBlanc-Sternberg v. Fletcher, No. 91 Civ. 2550 (GLG),

1996 WL 208307, 208302 (S.D.N.Y. Apr. 25, 1996).

12

cerning the proper standard under the First Amend-

ment for reviewing local zoning actions that involve

religious discrimination, and they urge reversal of

the court of appeals’ ruling on ripeness grounds.

Neither of those contentions has merit.

1. Petitioners seek review of the court of appeals’

judgment remanding the cases for further proceed-

ings. Pet. App. 6a. This Court ordinarily does not

review interlocutory decisions of this type on certio-

rari. See Virginia Military Institute v. United

States, 113 S. Ct. 2431, 2432 (1993) (opinion of Scalia,

J., respecting denial of certiorari), citing American

Construction Co. v. Jacksonville, T. & K.W.R.R., 148

U.S. 372, 384 (1893); and Brotherhood of Locomotive

Firemen v. Bangor & Aroostock R.R., 389 U.S. 327,

328 (1967) (per curiam). The lack of finality of the

judgment below is thus “of itself alone” a “sufficient

ground for the denial of the [writ].” Hamilton-Brown

Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916).°

2. Petitioners contend (Pet. 6-10) that the courts

of appeals are divided regarding whether the First

Amendment requires any accommodation for reli-

gious worship that is burdened by local zoning deci-

sions.

Neither of the cases cited by petitioners (Pet. 6-9)

as purportedly in conflict with the decision below, 7.e.,

Lakewood, Ohio Congregation of Jehovah's Wit-

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

Cir.), cert. denied, 464 U.S. 815 (1983), and Grosz v.

City of Miami Beach, 721 F.2d 729 (11th Cir. 1983),

cert. denied, 469 U.S. 827 (1984), involved allegations

6 As noted above, see note 5, supra, the district court has

entered its judgments on remand and petitioners may seek

further review of those final orders.

13

of intentional discrimination. Both involved applica-

tion of neutral laws of general applicability which,

under Employment Div., Dep’t of Human Resources

v. Smith, 494 U.S. 872 (1990), “need not be justified by

a compelling governmental interest even if the law

has the incidental effect of burdening a particular

religious practice.” Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520 (1993).

Lakewood involved a zoning ordinance that prohib-

ited the building of a church in a residential neighbor-

hood. The ordinance prevented the Congregation of

Jehovah’s Witnesses from being able to build a new

church on a lot that it owned. The court emphasized

that the ordinance did not have the purpose or effect

of prohibiting the Jehovah’s Witnesses or any other

faith from practicing its religion. 699 F.2d at 307.

The ordinance “simply regulate[d] a secular activity

and, as applied to the [Congregation], operate[d] so as

to make the practice of their religious beliefs more

expensive.” IJbid., quoting Braunfeld v. Brown, 366

U.S. 599, 605 (1961) (opinion of Warren, C.J.). The

court in Lakewood contrasted the situation there

with that in Keego Harbor Co. vy. City of Keego

Harbor, 657 F.2d 94 (6th Cir. 1981), in which a zoning

ordinance had been declared unconstitutional because

“its purpose and effect were to eliminate from the city

’ This case does not involve a claim under the Religious

Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et

seq., which was enacted in response t) this Court’s decision in

Smith. RFRA restores the compelling interest test, as set

forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin

v. Yoder, 406 U.S. 205 (1972), for claims involving govern-

mental action that substantially burdens the exercise of reli-

gion, even if the burden results from a rule of general

applicability.

14

the exercise of a first amendment right.” Lakewood,

699 F.2d at 307.

Similarly, in Grosz, there was no contention that

the zoning laws at issue were “aimed at impeding

religion.” 721 F.2d at 733. It was instead uncon-

troverted that “the law has both secular purpose and

effect.” Jd. at 738. The Eleventh Circuit found that

the home of the rabbi in which the religious services

were sought to be conducted was within four blocks of

a district in which publicly attended religious ser-

vices were permitted, and that services were

permitted in one-half of the City’s territory. Jd. at

731, 739.

The Eleventh Circuit in First Assembly of God of

Naples, Florida, Inc. v. Collier County, 20 F.3d 419,

modified on other grounds on denial of rehearing, 27

F.3d 526 (1994), cert. denied, 115 S. Ct. 730 (1995),

noted the special analysis that is required when a

zoning ordinance singles out a particular religious

practice for unfavorable treatment. The court con-

trasted the situation in Grosz from that in Lukumi

Babalu Aye, where the local law was held to violate

the Free Exercise Clause because it “targetled] the

use of animal sacrifice for religious purposes.” First

Assembly of God, 20 F.3d at 423. Both Grosz and First

Assembly of God involved enactments of general ap-

plicability not motivated by hostility toward religion.

The compelling interest analysis applied in Lukumi

was therefore not applicable. Jd. at 424.”

* In an amendment to its decision, added in the course of

denying a petition for rehearing and suggestion of rehearing

en banc, the First Assembly court noted that RFRA, which

was enacted on November 16, 1993, might be applicable to the

claims in that case. It declined to address that issue, because it

had not been raised by either party. First Assembly of God of

Unlike Lakewood and Grosz, the instant case in-

volves purposeful discrimination based upon religion.

The Village of Airmont was incorporated for the

purpose of deterring Orthodox Jews from residing in

Airmont and the Village conspired to impede the

private plaintiffs’ exercise of their First Amendment

free exercise rights. Pet. App. 36a, 41a. The court of

appeals’ decision in this case is also consistent with

the only decision cited by petitioners (Pet. 8-9) that

involved purposeful discrimination against a particu-

lar religious group. Islamic Center of Mississippi,

Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988).

In that case, the court concluded that the city

“favored Christian churches over Muslim mosques”

by granting exemptions from its zoning ordinance for

every Christian denomination that had applied; the

city denied an exemption only to the Islamic group.

Id. at 294, 297, 302-303.

3. The court of appeals correctly applied settled

principles of law in concluding that respondents had

standing to bring this action and that injury to

respondents was sufficiently impending to warrant

injunctive relief. Petitioners’ disagreement with the

court of appeals’ decision focuses on the requirement

that the injury complained of by respondents be

“actual or imminent.” Pet. 12-13, citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992):

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The

decision below, however, was premised on the well-

established principle that a plaintiff need not “await

the consummation of threatened injury to obtain

preventive relief.” Pennsylvania v. West Virginia,

Naples, Florida, Inc. v. Collier County, 27 F.3d 526 (11th Cir.

1994), cert. denied, 115 S. Ct. 730 (1995). See note 7, supra.

16

262 ‘U.S. 558, 593 (1923). The court of appeals also

emphasized that “the victim of a conspiracy to violate

First Amendment freedoms has standing to bring suit

before the conspiracy has resulted in economic or

tangible injury.” Pet. App. 30a, citing Virginia v.

American Booksellers Association, Inc., 484 U.S. 383,

393 (1988) (facial First Amendment challenge to law

limiting display of sexually explicit material, prior to

law’s enforcement, was not premature).

As the court of appeals recognized (Pet. App. 26a),

the FHA provides standing to a person who believes

he “will be injured by a discriminatory housing

practice that is about to occur.” 42 U.S.C. 3602(i)(2).

This provision is based on the well-established prin-

ciple that “a suit for an injunction deals primarily,

not with past violations, but with threatened future

ones; * * * an injunction may issue to prevent

future wrong, although no right has yet been

violated.” Swift & Co. v. United States, 276 U.S. 311,

326 (1928); accord Farmer v. Brennan, 114 S. Ct.

1970, 1983 (1994) (prisoner facing substantial risk of

serious injury is not required to wait for “tragic

event” such as actual assault before bringing suit to

obtain injunctive relief).

The trial evidence demonstrated the need for

judicial intervention in this case. The incorporation

of the Village of Airmont, for the expressed purpose

of enacting a stricter zoning code than Ramapo’s

code, in order to exclude Orthodox Jews’ home houses

of worship (as well as the enactment of the Airmont

zoning ordinance itself) were designed to chill the

exercise of both First Amendment and FHA rights.

See Pet. App. 26a-27a, quoting Park View Heights

Corp. v. City of Black Jack, 467 F.2d 1208, 1216 (8th

Cir. 1972) (under circumstances similar to those in

17

this case, court found “[i]t would be futile to require

the plaintiffs to proceed any further at the local

level”),

CONCLUSION

The petition for a writ of certiorari Should be

denied.

Respectfully submitted.

DREW S. Days, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

JESSICA DUNSAY SILVER

MARIE K. MCELDERRY

Attorneys

MAY 1996