The denial of Niwot's Rocky Mountain Christian Church's expansion plans is heating up, as we knew it would. Maybe they should see if the County Commissioners will put this to the vote of the people of Niwot. A bunch of religious leaders are appealing to the various State legislators asking them to blow off the County's request to have those same legislators ignore or change a provision of the federal law that arguably allows churches to ignore local land-use restrictions.
There's going to be a lot of money spent taking this principled stand. Read more about it in the Daily Camera.
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Attention, Dan, brace yourself, I will now criticize the County Commissioners.
Are they discriminating against religion? Was their intent in denying most of the church's expansion plan to prevent the practice of the faith? If not, why would you ask for a legislative change to RLUIPA, since preventing those ills is the purpose of federal statute?
It seems to me that the County looked a lot better standing its ground on the merits. I may not know the details of every technical problem that exists in this case, but asking for Congressional intervention can only invite the sort of response the church leaders just provided. Do you have links to all these letters and other miscellany?
See, doesn't that feel pretty good?
I do not see their actions as particularly based on anti-religion; however I believe they take particular umbridge at a given special interest assuming/demanding thier request will be granted when other special interests - in this case developers of residential or commercial property - would never have even asked. They would like EVERYONE to be on board with the grand land use plan.
This is a local control principled stance that I expect to go to the Supreme Court. On balance, I imagine the County would lose. We don't have a clear enough church/state separtion philosophy on a national level for a local state authority to be given the upper hand.
Fortunately we have a Constitution that still has some life in it.
I still don't understand why the County thought they needed to ask for Congressional intervention. With no discriminatory intent and no significant effect on religious practice, I don't see how the County can lose. They can, however, weaken my perception and create doubt that the facts are in their favor. What is the point in asking Congress to change a law that should be relatively easy to comply with?
Much like the cautious/spineless reaction of some officials to knee-jerkedly approve of additional punishments regarding anything having to do with drinking or drugs, I see the Colorado Supreme Court as weighing in on the side of the church in this case, making some stretch of logic along the lines of the structure in which religious expression is made is also by association a free speech issue which cannot be controlled by local land use laws. In all the examples above decision makers are afraid to enforce rational/constitutional principles over the concern they will look like they are enabling/encouraging distasteful behavior.
My cynicism is deep here, and I would be proud of our courts if I'm proven wrong.
So you regard the courts as being populated by politicians? That is deeply cynical, and fortunately not true most of the time.
As I noted the first time you posted on this issue, Justice Scalia, the famous archconservative, wrote for the Supreme Court concerning the Free Exercise Clause over 15 years ago. And he said that generally applicable law not directed at religious practice will still apply to the practice of religion.
It would be really interesting if RLUIPA managed to overturn the very weak enforcement power given to free exercise, but I'm going to have to bet in favor of the County on this one too. I've seen no evidence of discriminatory intent or differential enforcement of zoning law.
Then again, feel free to feed us some more fodder on the case. What you linked to before was a federal case. There is also a state court case brought by the church?
"Much like the cautious/spineless reaction of some officials to knee-jerkedly approve of additional punishments regarding anything having to do with drinking or drugs".....
Wow Dan, thanks for the personal attack! Not your normal style....
What?! Does that mean you would describe your support of the increased fines as knee-jerk? I want elected officials to be able to describe why any more punishment is necessary for any increase in punishment they approve. I see approving more fines or punishment as a choice to increase the government's power. I will question it at every turn on principle. I may even agree with the ends, but I want elected officials to justify the means.
What if Mayor Pro-tem Strungis hadn't asked for some more stats to justify the fines? It appears eveyone else thought "okay, no problem." I don't care if other communities charge as much or more. Or less for that matter.
If you want to talk about principles, isn't the government nothing more than you and me, collectively? I mean, in principle? So when you say that you distrust increasing the government's power, what is it you fear? That the next step will be the last before the great experiment in democracy turns into a totalitarian regime?
One good way to accomplish this might be to create a society where people can waste as much as they want, squander resources in the name of economic freedom, then bring them to their knees with material addictions and unyielding patterns of consumption when the well runs dry. You know, just an idea, to completely blur the topics here.
"So you regard the courts as being populated by politicians? That is deeply cynical, and fortunately not true most of the time."
Thanks, I needed a good laugh today.
As far as "we" being the government, we're a long way from that. I'm not for these overreaching, over'taking', legislating-from-the-bench power hungry slobs. Who, by the way, are not democratically elected. That's alright, mob rule wasn't the original intent anyway. But some of our elected officials pull the same tricks, in both parties.
The idea was for people to be able to make their own choices, not this nanny state we're heading towards. If you think democracy was a "great experiment" (not sure I'm buying the sentiment), wasnt limiting the scope and power of government the point of the Constitution? I read that as being skeptical, keeping a wary eye on them, and most definately fear them getting too large and powerful. That kind of scrutiny, yeah, I'm part of that government, but you might call that "cynical".
Being fearful and distrusting, THAT will keep us away from a totalitarian regime (from whence we came, Great Britain), but I think we're heading more towards a socialist state, personally.
Chris, the Wrongmont guy.
Disclaimer: my opinion / not trying or care to change yours, which I respect.
Don't you think the question might be whether your cynicism is well-founded or not? Certainly the courts are, in theory, not supposed to engage in politics.
If Dan's self-appointed role is to make those in power justify their actions, it's fitting that someone should also have the role of asking those who distrust government to justify their outspoken beliefs. I happen to agree that dislikable characters and ulterior motives exist at all levels, and in all branches, of government. However, this unfortunate fact of the human condition does not make government power inherently bad.
My position, at least for the sake of this blog, is that if you value liberty above all else (for which I think the unqualified property rights argument, occasionally appearing on this blog, serves as a stand-in), you should consider that liberty is not just a function of the government in abstract but first and foremost the choices available. Frankly, there is no way we would have the choices that we have today as a society without our government(s) providing the domestic security, market stability, technology transfer, and so on and so forth to make it happen. I think government, at least in Washington, may have gotten too big, but that doesn't bear any relationship to my understanding that government can be an instrument of great good.
My observation is that apathy and an attitude that government is inherently untrustworthy go hand in hand. The Constitution does control the scope and power of government. But the Constitutional intent has a lot less meaning when we consistently rely on the courts to control the reach of the political branches, instead of elections instilling some discipline on the process.
There is nothing more valuable to democracy than the dissenting voice. But when it comes to making the decisions, can't we have something in between dissent for the sake of dissent and unquestioning trust and a fawning affection for government solutions? Irrationality, whether it is nominally pro-government or anti-government, looks to me like the best way to steer hundreds of millions of people toward totalitarianism.
Arguments can be made either way about one's cynicism, or cheerleading, which I'm not saying either of us are doing either thing. But this is an opinion site, right? Well, mine is that the courts are engaged in politics.
I dont distrust all government, I'm far from thinking government is bad, I even work for the federal government. It has its role and boundaries, and it's been stepping outside of those for a long time. It's bloated, and not just at the federal level.
Sites like this and mine, in my opinion, partly exist out of our view of voter apathy. One of apathy's definitions is just 'not caring', and my guess, and it's just that, is that maybe half fall into the nontrusting group, the others don't want to be bothered, dont know or want to learn. Ignorance is bliss afterall.
"But the Constitutional intent has a lot less meaning when we consistently rely on the courts to control the reach of the political branches"
I thought that was the point of my first post. It's all about balance, between the branches themselves, and between us and the government. Your "in between" solution, the non political junkies would probably just choose apathy, sadly. A healthy suspicion doesnt equate irrationality. Key word, healthy.
Disclaimer: my opinion / not trying or care to change yours, which I respect.
Isn't there an adage that says the cost of freedom is eternal vigilance?
That idea is a clarion call for watchdogs, and I appreciate that, but there's just no substitute for objectivity when there is an objective truth out there to be had.
Are courts engaged in politics? Sure. But to some degree that is by design. Courts limit the exercise of executive and legislative power, or at least they have the authority to impose some limitations. If anything, they don't do this enough.
Other decisions, many, lie in gray areas of the law. If one has a suspicious nature, technical decisions are bound to appear aligned with one political view or another, and some undoubtedly have no other real basis than politics.
Now let's take RLUIPA. Struck down by the Supreme Court when it was RFRA years ago, this legislation came back with a few tweaks and a new Constitutional theory. Yes, this is now Commerce Clause legislation. The Commerce Clause probably shouldn't be used this way (as in, religious exercise = commerce?), but there's no conspiracy - we've elected people to Congress for years who grab for more federal power right out in the open, and sometimes campaign on nothing but issues that lie outside of the historic role of the federal government.
I'd love to hear more about it from Chris the Wrongmont guy.
Argh, I did have a comment, and it didn't show up. Long and short of it was, when I think I'm getting swept up in a conspiracy theory, I back off as most are rubbish. But, what's worse, a real conspiracy with men in black in a cave somewhere plotting, or our leaders stumbling along screwing things up and actually think they're doing the right thing?
I think the latter is the more likely scenario with their legions of true believers, also called koolaid drinkers.
As a closing thought, with a grin on my face, I'd like to share a couple of quotes:
"So you regard the courts as being populated by politicians? That is deeply cynical, and fortunately not true most of the time."
"Are courts engaged in politics? Sure"
But I do get your point, but the main difference as I see it is Congress answers to voters (2/4/6 years) and judges don't.
Pressing PUBLISH and hoping it actually works this time. Chris
Putting this back in context, will the courts decide the Boulder County v. Rocky Mountain Christian Center case for political reasons, or as an application of the law? Dan's prediction on the original post is that the result will be politically-driven. I said I think that is very cynical.
While you have pointed out what seem to be contradictory statements, they really are a way of arriving at the truth from two different angles. Is it possible the result will be driven by politics? Yes, I will admit that is a possibility. Is a politically motivated decision inevitable? No, there is law to apply here.
What separates a theory about the way things work from the truth of it are facts. We can break down the semantics of my arguments all we want, but unfortunately it won't give us a single additional fact to work with.
I won't deny the existence of judicial activism, politics in the courtroom, decisions that gloss over the law to reach a desired result... But I will say that these very real problems are often co-opted, magnified, and distorted by political hounds to exploit what perhaps starts out as the "healthy" brand of skepticism.
Why should I believe that the courts will rely on politics, rather than the law, to decide the RMCC case? I'm open to whatever answer is out there - maybe there are precedents, political connections, or something else I should be aware of. In the meantime, I choose to judge the legal case on what I know of its merits.
Likewise, I choose to believe that the skepticism expressed on this blog is healthy until proven otherwise. It is only when skepticism becomes purposefully disconnected from the facts that it becomes malignant.
Personally, I think the evidence is replete that election cycles have done little to stop Congress from being variously corrupt and overreaching. Judicial independence, on the other hand, generally shows itself to insulate the courts from the pressures of everyday politics. This is how many justices in the history of the Supreme Court (Warren, Stevens, Kennedy), for example, have gone from being construed as of one political orientation when appointed to being appreciated later as something else entirely.
Context, alright, enough generalities. How WILL the courts find, or how SHOULD the courts find? My prediction, eventually the church will win as an application of the law. At great time and cost to the church of course. It's also my opinion while the church may win that battle, the county may win the war.
I do think cynics on both sides can say the courts decision is political. Those on the right will complain the state court is too liberal and anti-religion by siding with the county, followed by those on the left complaining the Supreme Court is too right-wing favoring religion. Notice I'm disregarding the "is the law a good one or not" argument, I'm just looking at potential interpretation.
I'm sure the county and the church can come up with persuasive reasonings, so then the question of motives and intent come in and where you side. Will that and should that be relevent in court?
I'd assume not if they're just going for law interpretation.
My take (semi-rant mode ON): based on past practice on their land use ideas, I'd be hard pressed to ever side with the County. They come across as control freaks, even on land outside of their control (Weld Co.). They've spent ridiculous amounts of money, some with laughable long term contracts with land owners (West Longmont) and are nearly untouchable to voters due to their electing processes.
(bottom of my home page) While they know they'll probably lose this case, they'll anger just a few more citizens at "big church" (along with "big" anything, business, medicine, etc) to further their 'control'. In this case they don't like the law and want it changed or repealed. How about them being honest for a change and state specifically what else they'd like changed or replealed? Rant mode OFF.
Happy Sunday, Chris
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