RLUIPA Documentary Shown at Cardozo Law SchoolNovember 30, 2011 Holy Wars the documentary film about Ramapo and the Religious Land Use and Institutionalized Persons Act (RLUIPA) was shown and the Benjamin N. Cardozo (NYU) Law School this past Tuesday. The movie was shown in the Moot Court auditorium before an audience of about 200. Most members of the audience were students at Cardozo including NYU law students. The two invited guests and speakers were Anne MacGregor, the director and producer of the film, and Marci Hamilton, Paul R. Verkuil Chair in Public Law at Cardozo. Professor Hamilton is a leading church/state scholar and author of God vs. the Gavel. Anne MacGregor disclosed that before the film was shown at the Lafayette Theatre in Suffern this past November an attempt was made to stop the showing because it dealt with an issue that was "too sensitive." Much of the film dealt with the legal struggle between the village of Pomona and a developer who is sponsoring the "Tartikov College," which wants to build a campus for 250 "rabbinical law students" and their families on 100 acres in the village. Much of this land is wetland that is part of the headwaters of the Mahwah River. Pomona is a racially and ethnically diverse community of single family homes whose residents welcomed the construction of a large Hindu temple a few years ago. The implicit argument of the film is that this community is not anti-Semitic, but rather is a community that is trying to protect its environment and its semi-rural character. The law students were interested in the issue of "ripeness." Why, they asked, did the developer go directly to federal court under RLUIPA without first making an application to the village? What was not made clear in the presentation to the audience during the discussion was that the village was willing to discuss the development but insisted that the application be made in public. The village refused to enter into private discussions because it would not change its policy for this one applicant. The village was charged with discrimination before it had even seen the developer’s proposal! Professor Hamilton was puzzled by the federal court’s long delay in reaching a decision regarding ripeness. Professor Hamilton also told the audience that land use has always been under local control, that there have been hundreds of RLUIPA cases nationally, but that the U.S. Supreme Court has refused to judge the constitutionality of the law. Up to now, it has rejected all appeals of RLUIPA cases to the court. She also reported that while municipalities must have a "compelling interest" when they reject religious land use applications, the law does not define the term. Courts throughout our country have defined this term in a variety of ways. This has left communities with the choice between litigating a case where they will have to pay the plaintiff’s legal costs as well as their own or yield even when they believe they have a legitimate environmental reason for rejecting the application. For example, even where it has been shown that there is a shortage or potential shortage of water, the courts have seemed uninterested in this environmental issue as long as there is still enough water available to service the applicant. The film presented testimony from United Water regarding the need to build a desalinization plant to provide Hudson River water to Rockland because of the threat of an impending water shortage. Would this "fact" be relevant? Probably not. This is not a happy situation. [There will be other screenings of Holy Wars locally, later this winter.] Robert Rhodes
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