New Jersey First Amendment Case Tests Government Boundaries and RLUIPA

The First Amendment seems straight forward, but Americans find themselves in First Amendment battles all the time. The First Amendment says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

A battle is brewing in Livingston, New Jersey that goes to the very heart of the First Amendment. Patrick Racaniello put a small cross on a tree in his front yard to celebrate Lent. The City told him he had to remove it because of a city ordinance that prohibits postings on structures and trees that are "calculated to attract the attention of the public."

Mr. Racaniello removed his Lent cross from his tree and later put a new and larger cross up in his yard, to which he was again advised to remove it. The issue for the City is that both displays were within the ten foot “right of way.” The argument put forth by Sharon Weiner, the town’s attorney, is that "[The cross] is a distraction to the traveling public."

One problem with the law is that it is too vague and could be enforced subjectively. For example, does the law include Christmas lights, Jack-O-Lanterns, garden gnomes, and other yard paraphernalia that homeowners use to spruce up their yards and make them look aesthetic (even if that is subjective) to the public driving by. The other problem with the law, which is undetermined at this point, is ensuring that the law is enforced fairly and equally.

Obviously we don’t want people to break the law. Fight the law in court where that battle belongs: not by breaking it and risking fines and even jail time.

Even though there is a ten foot "right of way” established by the government, it is still the property of Mr. Racaniello, who is trying to express his Freedom of Religion, his basic First Amendment rights, on his private property.

Unlike crosses put up by the government that violate the Establishment Clause of the First Amendment, like the State Trooper Crosses in Utah (PDF) or the World Trade Center Cross (PDF), this is a perfect example of how citizens can express their Freedom of Religion. Mr. Racaniello has sought the legal aid of the Alliance Defense Fund who are not only using the First Amendment to challenge the city of Livingston, but also the ill-advised RLUIPA (Religious Land Use and Institutionalized Persons Action of 2000) . American Atheists spoke out against RLUIPA and started a letter-writing campaign to get citizens to encourage their representatives to vote against RLUIPA (Read the NGB entry on RLUIPA).

RLUIPA was designed and has been used to continue to ensure that churches are immune to regulations and laws in ways that undermine the Establishment Clause by giving preferential treatment to religion over the common citizen. It will be interesting to see how the courts view RLUIPA when it comes to a private citizen and whether it applies. American Atheists made the argument when RLUIPA was introduced that it was not needed because the First Amendment already existed for private citizens and that religious institutions should not be immune to the law just because of religion. We still stand by that argument because Mr. Racaniello is expressing his First Amendment rights on his private property and he should win this court case on that merit alone.

American Atheists is often accused of being "anti-Christian" or of "taking away the rights of Christians." On the contrary, American Atheists supports the Constitution of the United States. That means we support the right of Mr. Racaniello to express his Freedom of Religion because he is an individual citizen, who is appropriated those rights under the Constitution. The government does not have that right: only citizens do.

We hope you win your lawsuit Mr. Racaniello so that you can proudly display your cross on your private property.

On the Web
RLUIPA (Wikipedia)
Huffington Post Article About Incident

by Blair Scott