Opposition — Village of Airmont v. LeBlanc-Sternberg

Supreme Court, U.S.

2 et ek 2

APR 4 1997

No. 96-1397 CLERK

IN THE

Supreme Court of the United States

October Term, 1996

THE VILLAGE OF AIRMONT, and its Municipal Officers,

Petitioners,

-against-

RABBI YITZCHOK LEBLANC-STERNBERG, CHANIE LEBLANC-

STERNBERG, FRED WALFISH, LEWIS KAMMAN, PARK AVENUE

SYNAGOGUE, INC., UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Second Circuit

Brief In Opposition for Rabbi Yitzchock 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

THE RUTHERFORD Law Offices of

INSTITUTE Craig L. Parshall

1445 E. Rio Road 910 Princess Anne St., Suite 202

Charlottesville, VA 22901 Frederickburg, VA 22401

(804) 978-3888 (540) 371-5427

Reuben Koolyk Attorney for Individual

Arnold & Porter Respondents

399 Park Ave

New York, NY 10022

(212) 715-1000

April 4, 1997

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

i

QUESTIONS PRESENTED

Did the court below (1) violate the doctrine of federalism

in granting injunctive relief where the underlying constitutional

wrong it sought to remedy consisted of the enactment of a

zoning code with a discriminatory animus; (2) exceed its eq-

uitable powers in granting injunctive relief where the harm

addressed, prospectively, was the constant threat to the rights

of Respondents under the Free Exercise Clause?

ii

LIST OF PARTIES

The parties are accurately stated in the caption of the Pe-

tition for Writ of Certiorari. Respondent Park Avenue Syna-

gogue, Inc., is a non-profit and non-stock corporation that has

no parent or subsidiary companies.

ili

TABLE OF CONTENTS

ERPs meres WI EE oad istcnsnesentticithinc aticascicpiiscs igs i

I Oe a er il

BOM PORTE TICIU IIR assis ches dhsavcdnaddcdbicecnns Lica iv

a a een 1

STATEMENT OF JURISDICTION. ............cccescescesessessocceoesoes 1

DOR Ee E CON EIS CAE ois cscecsincesercdeeeneneesnss 1

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

I. THE COURT BELOW DID NOT VIOLATE

PRINCIPALS OF FEDERALISM..............:ecscceseseees. 6

Il. THERE WAS ADEQUATE PROOF OF

HARM UPON WHICH TO BASE THE

EQUITABLE RELIEF AWARDED.............0c0000-. 10

Iii. NO DIVISION EXIST IN THE CIRCUITS

REGARDING INTENTIONAL _DIS-

CRIMINATION THAT VIOLATES THE

FREE EXERCISE CLAUSE ..........cccososccocosesesessese 1]

MN e RN iilichciciicstirsabsanscccicnesteesinsiicieistocdoec ted ugg. 15

APPENDIX A - Order and Judgment of the U.S. Dis-

trict Court regarding the private

ROI sais iciiniccnnstiestaieiiningtenabcostiieauis A-1

iv

TABLE OF AUTHORITIES

CASES

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

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

Hialeah, _U.S.__, 113 S. Ct. 2217 (1993) .......... 10, 13-15

Dunn v. New York State Dept. of Labor, 47 F.3d 485

(26NE Se. SIRE) a ciisssnntcessineastenaninsunsds sonucisisipeiadaioauesticrcsinnn 8

Employment Division v. Smith, 494 U.S. 872 (1990)............ 15

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

BO Ce Ce Ts iciemsigpnsonecssonvannteuariigistatgtnlaialiscpaeioietes 14

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

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

Huntington Branch NAACP v. Town of Huntington,

844 F.2d 926 (2nd Cir.) aff’d, 488 U.S. 15 (1988).............. 7

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

Miss., B40 F.26 29S (5 Cir B9GS) oi ccinscscrcsesacshanessccshesseee 15

Keego Harbor Company v. City Keego Harbor,

G7 Fa Fe CO CR, Sap iivirseereinteninprchantinestovnondbabisnensic 12

Lakewood v. City of Lakewood, 699 F. 2d 303

(6th Cir.), cert. denied 464 U.S. 815 (1983)... 12-15

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

cert, denied, US. (1990) sciatic 1-4, 7, 9, 10, 15

LeBlanc-Sternberg v. Fletcher, 763 F. Supp. 1246

(SIT. SDBT} cscsicsieccmcnsinicinnsisutanpiccapinaneccladiticias detente 5

Louisiana v. United States, 380 U.S. 145 (1965) ...........cs000 11

Milliken v. Bradley, 433 U.S. 267 (1977)......sssscsssecsssesseesees 7,8

Missouri v. Jenkins, _U.S.__, 115 S. Ct. 2038 (1995) ....... 7-9

Swann v. Charlotte-Mecklenberg Bd. Of Educ., 402

UF tes FEE TA chsdicsctacanccanestapciquapecnibiobabaeameteaadelbcsincin 11

United States v. City of Parma, 504 F. Supp. 913

CUTE RS TID ssc teristisinicttiisnsiraaaieccieidenccsanrasaphoncetoonte 8

Village of Airmont v. LeBlanc-Sternberg, Case No. 95-

1361, cord. meted, UB.) CET iictiscspcchscnsertmnctvinaes 6

—

Vv

STAUTES AND CONSTIUTIONAL PROVISIONS

he AAs EOE tie hiss ade datums Cpaceksaipnsume ncinbcdoeieiees yA

Ge UR Be MPO aske ea iis ee a Se ti 2-4

Pe as CAV Bs SUMMED dhcsatessoasscsb sbeehasesccusasovesvsnidnsboeeicaiboskecks 3

No. 96-1397

IN THE

Supreme Court of the United States

October Term, 1996

THE VILLAGE OF AIRMONT, and its Municipal Officers,

Petitioners,

-against-

RABBI YITZCHOK LEBLANC-STERNBERG, CHANIE LEBLANC-

STERNBERG, FRED WALFISH, LEWIS KAMMAN, PARK AVENUE

SYNAGOGUE, INC., UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Second Circuit

Brief In Opposition for Rabbi Yitzchock LeBianc-Sternberg,

Chanie LeBlanc-Sternberg, Fred Walfish, Lewis Kamman,

and Park Avenue Synagogue, Inc., Respondents

OPINIONS BELOW

Petitioner has accurately referenced the opinion of the

Second Circuit Court of Appeals for which review is sought.

The first opinion of the Second Circuit related to this case was

published at 67 F.3d 412 (2nd Cir.), cert. denied, US._

(1996).

STATEMENT OF JURISDICTION

These respondents do not dispute the jurisdictional

grounds set-forth by the petitioner.

STATEMENT OF THE CASE

The private Respondents are members of Respondent

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

spondent Rabbi Yitzchok LeBlanc-Sternberg. His home was

2

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 as determined by the Court of Ap-

peals, 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.) cert. denied, U.S. (1996).

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.

The incorporation of Airmont as a Village was finalized

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

selected. These officers were opposed to home worship by

Orthodox Jews. 67 F.3d 420-421. Five days after incorpora-

tion, Respondents filed the instant action alleging violation of

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 seq. 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

|

3

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.

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 seq. 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.

On appeal, the Court of Appeals for the Second Circuit

reversed the trial court.

The Court of Appeals reversed the trial court’s finding

that the jury verdict was unsupported by the evidence, and

determined that there was ample evidence to support the ex-

istence of both a violation of the private respondents’ Free

Exercise rights and their rights under the Fair Housing Act.

The court further determined that the jury verdict collaterally

estopped the trial court from finding against the United States

in its Fair Housing action, and it remanded both cases for

further proceedings stating:

_... [Tjhe Private plaintiffs and the government

were entitled to relief . . . The private plaintiff’s ac-

tion is remanded for the entry of judgment awarding

4

those plaintiffs nominal damages and such injunc-

tive and other relief as may be appropriate . . . The

judgment dismissing the government’s action . . . is

reversed, and the matter is remanded for the entry of

a declaratory judgment in favor of the government

and for such injunctive and other relief as may be

appropriate.

67 F.3d 435.

Following remand, the district court ordered the private

respondents and the government respondent to file separate

proposals for relief. Petitioner’s response to the differing

plans of relief from the private plaintiffs and the United States

was a objection to any relief being granted. Petitioner did not

submit any alternative plan of relief.

After briefing by the parties, the district court entered an

Order and Judgment on April 25, 1996 and a supplemental

Order on April 29. Pet. App. 1a-18a. The Orders were ac-

companied by a Memorandum Decision.

In its Order and Judgment the District Court, inter-alia:

(1) declared the Petitioner to have violated the Fair Housing

Act; (2) enjoined the Petitioners, its agents and those acting

in concern with them, from (a) engaging in conduct having

the “purpose or effect” of perpetuating or promoting religious

discrimination, including any interpretations of the HPO pro-

visions of the zoning code so as to “hinder, prevent, or pro-

hibit persons from assembling in residential dwellings for the

purposes of group prayers,” (b) discriminating in matters of

housing on the basis of religion; (c) interfering with persons

who are exercising their rights to equal housing opportunity;

or taking any action that denies housing on the basis of relig-

ion. Id.

The district court also ordered that the Petitioner modify

its zoning code, most notably to: (a) provide a statement that

the code was not to be used to hinder persons from

5

“peacefully assembling in residential dwellings solely for the

purposes of individual or group prayer; “ (b) include a provi-

sion that the presence of worshipers walking to or from a

house to worship does not “constitute a change in the resi-

dential character of the neighborhood” (thus preventing the

Petitioner from determining that Orthodox Jews who must

walk to the Rabbi’s home for prayer on the Sabbath change

the “residential character” of the area, automatically disquali-

fying the home from being part of a Home Professional Office

(HPO) under the “HPO” section of the code); (c) to allow

group worship in homes located in residential areas as a mat-

ter of right; (d) to clarify that the lot size and other restrictions

on a “place of worship” would only apply to free-standing

Synagogues or churches, and that such structures would be

allowed in all residential areas, and (e) to delete the last two

sentences of the HPO provision which gave broad standing to

any “aggrieved person” who might want to challenge Ortho-

dox home worship.

The private respondents requested relief that was similar

to that requested by the government, but also requested the

more severe remedy, in the alternative, of dissolution of the

Petitioner, Village of Airmont.’

The district court, in a separate Order and Judgment,

granted nominal damages to the private respondents, and or-

dered that “the plaintiffs (private respondents) request for in-

junctive relief is granted to the extent of that set forth in the

Order and Judgment in the case of United States v. Village of

Airmont, et al., ...” Resp. App. A-1.

Petitioner appealed, arguing that the relief was dispro-

portionate, that the relief was not remedial, and that the dis-

trict court usurped the role of local government regarding

This is pursuant to the district court’s pretrial ruling that the Vil-

lage’s “incorporation could be declared null and void” if “discriminatory

intent be found at the root of Airmont’s incorporation.” LeBlanc-

Sternberg v. Fletcher, 763 F. Supp. i246, 1252 (S.D.N.Y. 1991).

6

zoning decisions and thereby violated the principals of feder-

alism.’ The court of appeals rejected all of these arguments.

For the reasons stated herein, this Court should not grant

the Petition for Writ of Certiorari.

REASONS FOR DENYING THE WRIT

I, THE COURT BELOW DID NOT VIOLATE PRIN-

CIPALS OF FEDERALISM

Petitioner makes the grand pronouncement that the ruling

of the Second Circuit of Appeals on remedies in this case con-

stitutes “federal tyranny over state and local issues.” Pet. 6.

This ignores the fact that the admittedly broad equitable relief

granted by the trial court, and affirmed by the Court of Ap-

peals, was for the purpose of remedying the tyranny exercised

by the Petitioner over the most fundamental religious liberties

of the private respondents.”

The record is clear as to the shocking nature of the hos-

tility toward Orthodox Jews exhibited by the founders of the

Petitioner, Village of Airmont, through the organization they

used to push for incorporation of the Village - the Airmont

Civic Association (ACA). The Court of Appeals, in the first

appeal of this case, noted the “plethora of statements attribut-

* These arguments, in varying degrees, are the focus of Petitioner’s

argument for the granting of certiorari, together with the contention that a

purported division exists in the circuits on the interplay between local

zoning power and the Free Exercise Clause. This latter argument was also

advanced in the Petitioner’s last failed attempt to argue for the granting of

certiorari in this case. Village of Airmont v. LeBlanc-Sternberg, Case No.

95-1381. Cert. denied at U.S.__ (1996). Interestingly, that argument

under the First Amendment, although presented in the arguments set forth

in the newest Petition for Writ of Certiorari, is not reflected in any of the

questions presented for review. Pet., i.

* The Court of Appeals, in affirming the trial court grant of injunctive

relief, noted that “[t]his was an egregious constitutional violation, calling

for a commensurate injunctive remedy.” Pet. App. 9a.

7

able to ACA leaders who became Village officials, expressing

anti-Orthodox Jewish Sentiments.” 67 F.3d 430. The push

for incorporation, and a Village zoning code, was not moti-

vated by a “legitimate nondiscriminatory reason but rather an

animosity toward Orthodox Jews as a group.” Jd.

The principals of federalism are surely not designated to

camouflage unconstitutional discrimination against religion.

Moreover, the remedies in this case conform with the

considerations of federalism implicit in this Court’s ruling in

Milliken v. Bradley, 433 U.S. 267 (1977) and Missouri v.

Jenkins, US_ ,115S. Ct. 2038, 132 L.Ed. 2d 63 (1995).

In Milliken v. Bradley, this Court, in reviewing the ap-

propriateness of a federal court plan of remedy for discrimi-

nation in the schools of Detroit, cited several decisions from

Courts of Appeal where the remedies before the Supreme

Court haa in fact been approved by the Court of Appeal from

several Circuits. The Supreme Court stated:

Our reference to these cases is not to be taken as

necessarily approving holdings not reviewed by this

Court. However, they demonstrate that the District

Court in the case now before us did not break new

ground in approving the School Board’s proposed

plan.

Milliken, at 433 U.S. 286-87. (“Milliken II”) (emphasis

added).

Although the Petitioner characterizes the District Court

Order and Judgment as radical and unreasonably intrusive, it

is Clear that the remedies ordered by the trial court “did not

break new ground,” but follow the well-worn paths of prior

court decisions.

Zoning codes can be ordered modified to eradicate dis-

crimination. Huntington Branch NAACP v. Town of Hunt-

ington, 844 F.2d 926, 942 (2nd Cir.) aff'd, 488 U.S. 15

(1988).

8

Permanent injunctions prohibiting future acts of illegal

discrimination have been applied in other cases. United

States v. City of Parma, 504 F. Supp. 913, 918-26 (N.D. Ohio

1980).

The monitoring of, and imposition of notification re-

quirements upon, offending units of government was ap-

proved in Dunn v. New York State Dept. of Labor, 47 F.3d

485, 488-89 (2nd Cir. 1995).

Like the remedy approved in Milliken IJ, the Order and

Judgment of the trial court did not break new ground, but was

a restrained solution that was compatible with traditional dis-

crimination remedies.

Further, this Court under the rule of Milliken IT should

give due deference to the trial court’s “proximity to local con-

ditions” in its fashioning of remedies to reverse discrimina-

tion. Milliken at 433 U.S. 287, n. 18. This trial concerns an

area not too far distance from White Plains, New York federal

courthouse. This broad deference to the trial court’s plan

militates against the granting of the writ in this case.

In Missouri v. Jenkins, __ U.S. _, 115 S. Ct. 2038, 132

L. Ed. 2d. 63 (1995) the Supreme Court reaffirmed its three-

part test, originated under Milliken II, to guide district courts

in the exercise of their remedial authority:

In the first place, like other equitable remedies, the

nature of desegregation remedy is to be determined

by the nature and scope of the constitutional viola-

tion. (citations omitted).

132 L. Ed. 2d 80. Stated in other terms, the remedy should |

strike at the “most important indicia of [the discrimination in |

question]. “ Jd. In school desegregation cases the Court had |

determined that such “indicia” included student assignments,

faculty, staff, transportation, extracurricular activities and fa-

cilities. Id.

:

i

F

:

,

9

In this case, the most important indicia of discrimination

was determined by the Second Circuit Court of Appeals to be

the zoning code itself: “It is a fair inference that the jury

viewed the Village’s enactment of that code, with provisions

facilitating rejection of HPO applications, as an act that was

designed to limit the number of home synagogues and that

was thus about to make dwellings unavailable to Orthodox

Jews because of their religion.” Sternberg, at 67 F.3d 428.

Thus it was appropriate that the District Court configure its

remedy around the zoning code, and the ability of persons to

worship in homes.

’ Second, the decree must indeed be remedial in na-

ture, that is, it must be designed as nearly as possi-

ble ‘to restore the victims of discriminatory conduct

to the position they would have occupied in the ab-

sence of such conduct.’ (citations omitted).

Missouri, 132 L. Ed. 2d 80. The remedy in this case is pre-

cisely defined, the notice requirements are time-limited to a

threshold of 5 years, and the plan restores the Respondents to

a situation where religion cannot be used as the motivation

behind zoning restrictions against group home worship.

Thus, the remedy in this case can be easily distinguished

from that in the Missouri case where the remedy struck down

was based on a “rationale [that] is not susceptible to any ob-

jective limitation.” Jd. at 87.

Third, this Court has required federal courts, in fashion-

ing remedies, to “take into account the interest of state and

local authorities in managing their own affairs, consistent with

the Constitution.” Jd. at 80.

In this case the District Court was faced with a local

governmental party that is reluctant, even at this late hour, to

admit any wrongdoing, or to take responsibility for past re-

ligious discrimination. It is hard to envision a remedy that

could have better accommodated the self-rule interests of the

10

Petitioner, while still accomplishing any remedial purpose at

all, than that granted in this case. This is particularly true

where, as here, the Petitioner did not submit to the trial court a

carefully constructed alternative plan to those proposed by the

respondents. Moreover, it is difficult to justify the attention

of this Court to an increased accommodation to the interests

of Petitioner where it argued to the trial court that the only

appropriate remedy for the Respondents was to give them no

real remedy at all.

Il. THERE WAS ADEQUATE PROOF OF HARM

UPON WHICH TO BASE THE EQUITABLE RE-

LIEF AWARDED

Petitioner argues that review is necessary to cure

“extraordinary” relief, which “dramatically” changes a local

zoning code, despite the fact that, as claimed by Petitioner,

“Respondents never claimed to be harmed by the Code.” Pet.

10.

Such statements ignore the record. Respondents have

consistently claimed to have suffered a constitutional and Fair

Housing Act injury by reason of the actions of the Petitioner.

The Court of Appeals found that the zoning code was not only

passed with a anti-religious animus, 67 F.3d 430, but also de-

termined that the evidence showed that “the zoning ordinance

will likely be applied in a discriminatory manner...” 67 F.3d

425. An ample evidentiary showing of harm is reflected by

the record in this case.

A trial court’s judgment on matters of relief where they

are designed to cure a constitutional violation are owed defer-

* The fact that the zoning code in this case was never enforced against

the respondents is not dispositive of whether they suffered constitutional

harm. This Court struck down a local law that targeted a religious group

even though the law had never been enforced, in Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, _ U.S. __, 113 S.Ct. 2217 (1993).

11

ence on review. Louisiana v. United States, 380 U.S. 145,

154 (1965).

The extent of the violation will, to a great degree, deter-

mine the extent and scope of the remedy awarded. Swann v.

Chariotte-Mecklenburg Bd. Of Educ., 402 U.S. 1, 16 (1971).

These principals, inherently ones of flexibility and pro-

portionality, when applied to a record where intentional dis-

crimination has been determined to exist, make this a case in-

appropriate for review by this Court.

Further, while Petitioner cites cases where overly

sweeping remedies were found excessive because less intru-

sive relief was available (Pet. 12), Petitioner made no argu-

ment to the trial court in this case as to what lesser injunctive

relief would be appropriate, nor did they suggest their own

alternate zoning modification plan.

The Court of Appeals noted that “there was no indication

that the Village was going to make the changes necessary to

guarantee that no constitutional violations occurred in the fu-

ture,” and that future violations were “likely.” Pet. App. 11a.

On this kind of record, there is no basis for granting the

Writ requested by Petitioner.

lil. NO DIVISION EXISTS IN THE CIRCUITS RE-

GARDING INTENTIONAL DISCRIMINATION

THAT VIOLATES THE FREE EXECISE CLAUSE

Petitioner pronounces a division among the Circuits re-

garding the manner of resolving conflicts between local zon-

ing regulations and religious activities restricted or prohibited

by those regulations. While it is correct that some of the fed-

eral Circuits have adopted differing standards regarding the

resolution of those kinds of conflicts, whatever their differ-

ences may be, such divisions are beside the point in this case.

There is no division, “deep” or otherwise, concerning the in-

validity of official government action under the Free Exercise

Clause of the First Amendment when that action has, as its

object, the targeting of religious belief or practice for dis-

12

Ccriminatory treatment. The cases cited by Petitioner 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 in all

residential areas, and limited such new construction to ten per-

cent of the area of the city. Jd., 699 F.2d 307. However, as the

Court emphasized:

[T]he record does not indicate that the Congregation

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 Harbor

Company v. City of Keego Harbor, 657 F.2d 94 (6th

Cir. 1981). In Keego Harbor, a zoning ordinance ef-

fectively excluded adult movie theaters from the city

by setting severe spacing limitations. This court

found the ordinance unconstitutional because 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 regula-

tion must satisfy strict scrutiny (i.e., Keego Harbor), but

where the zoning regulation has no such purpose or effect

13

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

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

Exercise activities, particularly where “the activity has no

religious or ritualistic significance for the . . .” religious ob-

jectors. Lakewood, 699 F.2d 306.

While Petitioner stresses the language in Lakewood that

concluded that the effect of the zoning was simply to make

the plaintiffs religious practice “more expensive” (Pet., 14), a

circumstance not per se violative of Free Exercise, Petitioner

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 Braunfield] was not unconstitutional

because 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 “general 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 finan-

cial 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

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

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

id

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

targeting religious beliefs as such is never permissible.” Jd.,

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., 15), 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., 15) 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 dis-

crimination 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 distinguisied Grosz

from the Lukumi Babalu paradigm on the basis that the Lukwmi

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).

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

es

15

Babalu reasoning which was rejected by this Court. The Elev-

enth Circuit has concluded that, “[t]he Supreme Court reversed

the application of Grosz, not the holding of Grosz itself or the

reasoning behind it.,” Id. 423 n.4.

Respondents respectfully submit that, whatever problems

there may be with the reasoning used in Grosz, that reasoning

is simply not applicable to a case of intentional discrimination,

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 Islamic Center handily distinguishes both

Lakewood and Grosz from the facts in that case. 840 F.2d

301-303.

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 Bahalu. How the Eleventh or Sixth

Circuits would decide cases whose facts implicate Smith, or

Lukumi Babalu, is unknown, and undermines the argument

made by Petitioner.

16

CONCLUSION

Respondents respectfully request that this Court deny the

Petition for Writ of Certiorari.

Respectfully submitted,

Of Counsel: Craig L. Parshall

John W. Whitehead Counsel of Record

The Rutherford Institute Law Offices of

1445 E. Rio Road Craig L. Parshall

Charlottesville, VA 22901 $910 Princess Anne St.,

(804) 978-3888 Suite 202

Reuben Koolyk

Amold & Porter

399 Park Ave.

New York, NY 10022

(212) 715-1000

April 4, 1997

Fredericksburg, VA 22401

(640) 371-5427

Attorney for Individual

Respondents

A-1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ORDER AND JUDGMENT

91 Civ. 2550 (GLG)

Rabbi Yitzchok LeBlanc-Sternberg, Chanie LeBlanc-

_ Sternberg, Fred Walfish, Lewis Kamman, Park Avenue

Synagogue, inc.,

Plaintiffs,

— against —

Robert Fletcher & Nick Vertullo, Raymond Kane, Maureen

Kendrick, and John C. Layne, Individually and in their

capacity as Trustees of the Village of Airmont,

Defendants.

This case having been remanded by the Second Circuit

Court of Appeals for the entry of judgment awarding the plain-

tiffs nominal damages and such injunctive and other relief as

may be appropriate against .he Village of Airmont, but having

affirmed the judgment dismissing the private plaintiffs’ claims

against the individual defendants, it is ORDERED:

(1) that the Clerk shall enter judgment for each of

the plaintiffs in the amount of $1.00 against the

Village of Airmont; and

(2) that the plaintiffs’ request for injunctive relief is

granted to the extent of that set forth in the Order

and Judgment in the case of United States v. Village

of Airmont, et al., 91 Civ. 8453 (GLG).

So Ordered.

Dated: April 25, 1996

White Plains, N.Y.

/s/

Gerald L. Goettel

U.S.D.J.