New Milford Files Legal Brief In the Case of Prayer Meetings

By: T. Colleen Morgan
06/17/2004











NEW MILFORD-A four-year-old case involving the Zoning Commission's action in connection with prayer meetings held in a private home is back in the spotlight this month, as the town's attorney has filed a brief with the federal appeals court in New York.

Robert and Mary Murphy of 25 Jefferson Drive, which is located on a cul-de-sac, began holding Sunday prayer meetings in their home in the late 1990s. The number of participants varied from a dozen to approximately 60, with an average of about 25.
Mr. Murphy's religion requires that he pray with a group, he has said, and it was an illness that led to the meetings being held in his home.
In August 2000, neighbors complained about increased traffic, cars parked on the street and noise of people leaving the meetings. After four public hearings, the Zoning Commission ruled in November of that year that regularly scheduled meetings with more than 25 people violated the regulations because they did not constitute a customary accessory use for a single-family residential district.
Based on that opinion, Zoning Enforcement Officer (ZEO) Kathy Castagnetta issued a cease-and-desist order, but before she could complete it, the Murphys filed suit in U.S. District Court in Bridgeport.
In October 2003, that court ruled in favor of the Murphys based on provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA), enacted by Congress in 2000.
Last December, the Zoning Commission decided to appeal to the U.S. Second Circuit Court of Appeals.
The commission's attorney, Steven Byrne of Farmington, prepared the appellate brief with the help of special attorney Marci Hamilton, a Yardley, Pa., resident and New York City law professor. Ms. Hamilton, who, the commission hired in 2001, had successfully argued before the Supreme Court that the Religious Freedom Restoration Act (RFRA), RLUIPA's predecessor, was unconstitutional. The high court decided in 1997 that RFRA, enacted in 1993, exceeded Congress' power because it told local governments to give special treatment to religious uses or organizations.
The 60-page brief filed in the New Milford case argues that the town's attempt to limit the number of people who attended the Murphys' Sunday gatherings did not substantially burden the property owner's right to practice his religious beliefs.
The enforcement action did not prohibit the prayer meetings from taking place, Ms. Hamilton indicated, but limited the size so they did not cause traffic, noise and other concerns for the neighborhood-issues that are the purview of the zoning authority.
Even so, the brief takes the position that the laws cited by the Murphys in their defense, the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Connecticut Act Concerning Religious Freedom (CACRF), are unconstitutional because they violate the Establishment Clause of the U.S. Constitution by giving religious land uses "special rights."
Moreover, Ms. Hamilton argues that RLUIPA violates the 10th Amendment, which assigns to the states the right to regulate and enforce land-use law, and the Separation of Powers doctrine, which guarantees that Congress does not trump the authority of the Judiciary.
In addition, Ms. Hamilton claims that the Murphys' argument is not yet even "ripe for review" because they did not first appeal the zoning authority's decision to the town's Zoning Board of Appeals.
"In light of the fact that there is no animus or discrimination in this case," the brief reads, "there is no excuse for the Plaintiffs' avoidance of the basic zoning requirements."
The RLUIPA requires that the plaintiffs show that the land-use law in question constitutes a "substantial burden" on their practice of religion, the town argues, claiming they have not done so.
The brief claims that the ZEO's limit of 25 persons for a regularly scheduled meeting was "reasonable," especially since the Murphys themselves suggested they had an alternative location for larger assemblies.
"[T]he District Court's substantial burden analysis was fundamentally flawed," the brief reads. "The ZEO put no pressure on Plaintiffs to modify or alter their beliefs, did not coerce their beliefs, and certainly did not make the practice of their religious beliefs impracticable. ... The Court failed to take account ... that the Cease and Desist Order does not forbid gatherings of friends and family for the purpose of prayer meetings in the home. It only limits the size of those gatherings in order to ensure that the use remains residential in character."
Once the plaintiff shows that a burden has been placed on the religious practice, New Milford's brief explains, the municipality must prove that the law in question serves a "compelling government interest" and that the agency used the "least restrictive means" to serve that interest. The District Court did not dispute that the ZEO had the interest in protecting the community's health and safety through zoning regulations, but it suggested that the official failed the test of being "least restrictive."
"[T]he local authorities had the responsibility, under the zoning law, to determine the best means of ensuring the Murphys' use of their home for weekly Sunday meetings of large numbers would not have a detrimental effect on the surrounding neighborhood," the town's brief reads. "The ZEO Order sought to do this not by banning regular prayer meetings altogether but rather by placing a reasonable limit on the size of these meetings, a limit it quite rationally could have concluded would have the effect of decreasing parking needs, traffic and noise."
The attorneys for the Zoning Commission cited a very similar Florida case, Konikov v. Orange County, in which the district court upheld an order to stop holding regular prayer meetings in a residential district until the property owner received a special permit for the use. The Florida case, which involved prayer meetings of about 10 people, has not been appealed to the higher courts.
"Gatherings for organized religious services produce, as do other substantial gatherings of people, crowds, noise, and disturbance," the decision in the Florida case reads, as quoted in the New Milford brief. " ...[T]he government action in this case easily passes the least restrictive means test." The author of the brief notes later: "This comparison reveals that the disturbance in the Murphy neighborhood involved was greater and the ZEO's action less restrictive than in Konikov."
The brief also argues that the District Court erroneously concluded that the cease-and-desist order, not the zoning regulations, was to be analyzed to determine if it was "neutral" and was "generally applicable." While the lower court did not disagree that the zoning regulations adhered to those characteristics, it failed to see the connection between the regulations and the order, the town is arguing.
"The Cease and Desist Order is the means by which a homeowner is notified that he or she is in violation of the zoning regulations," the brief reads. "It is not the law for purposes of RLUIPA or free exercise [of religion] analysis. Without the zoning regulations behind it, such an order would be meaningless and without effect."
Ms. Hamilton and Mr. Byrne also attacked RLUIPA by arguing that its enactment and its provisions violate the U.S. Constitution. The first claim is that Congress exceeded its enforcement power as granted to it by the 14th Amendment. That provision requires the legislature to establish that there had been "widespread and persisting constitutional violations against religious institutions" by the states involving land-use law before such a law is passed to counteract it.
"RLUIPA was not enacted 'against a backdrop of pervasive unequal treatment,'" the brief argues. "[T]o the contrary, lawmaking has tended to favor religious entities. ... ."
The same constitutional amendment provides the separation of powers doctrine, which establishes the authority of the three branches of government, the executive, the judicial, and the legislative. RLUIPA attempts to redefine that balance of power as contained in the constitution, the lawyers for the Zoning Commission argue, producing a "substantive alteration in free exercise law [that] is in fact a constitutional amendment, absent Article V [the procedure for constitutional amendments], and therefore in violation of the separation of powers."
In addition, RLUIPA's provisions have taken over the judiciary's responsibility of defining "burden of proof and persuasion," the brief says, indicating that Congress changing such longstanding jurisprudence is tantamount to redefining the term "probable cause," for example.
"Like RFRA, RLUIPA is 'designed to control cases and controversies' and as such is beyond congressional authority," the brief states, quoting the Supreme Court decision that declared RFRA unconstitutional. "The courts must act to restore the balance of power."
Lastly, the defendants claim RLUIPA violated the Tenth Amendment by tromping on the central elements of federalism-the doctrine that reserves all rights not designated to the federal government or prohibited by the constitution for the states. One of those rights that has classically been the domain of the local governments is land-use law, to protect the health and welfare of its citizens, and the brief argues that the new law's provisions "overreach into state and local law" as evidenced by the many lawsuits that the law has generated.
"It is not addressing discrimination," the brief reads, referring to RLUIPA, "but rather providing a singular benefit to a class of landowners based on their religious status to the detriment of local and state and use law."
The Murphys' attorney, Vincent McCarthy of the American Center for Law and Justice in New Milford, has argued that the town violated the Murphys' constitutional rights, but he has also relied heavily on the new law.
In an interview Wednesday, he said his appeals brief is to be very similar to the District Court's decision, but he plans to argue that the defendant's brief includes some "distortions of fact," such as the reference to the retreat center in Moodus, Conn. as an alternative location.
"Anyone who knows Connecticut knows that Moodus is a two-hour drive from New Milford," he said. "There is no way people are going to go to Moodus for a prayer session. This case is about the Murphys' constitutional right to have prayer in their home."
Mr. McCarthy's brief is due on June 28, he said.