What kind of book?

I found some of these essays quite helpful. Within days of finishing the book I was repeating what I had just learned about public protest regulation to a newspaper columnist writing about a recent protest at Oakland’s City Hall. How’s that for a quick return on investment?

However, I feel compelled to say that reading this book sometimes felt much more like an investment, like hard work, than an exciting intellectual adventure – the latter being how I usually feel when reading about our Constitution’s most important guarantee of liberty. While I can recommend this collection to local government practitioners, or to attorneys specializing in the First Amendment or land use, I’m not going to be giving it to any of my friends as a birthday present anytime soon. These are not provocative essays written to dazzle the reader with the wisdom and wit of the authors.

The editors state that their purpose is to assist practitioners in the field. That’s why they included an appendix with a Model Ordinance on Sexually Oriented Business Regulation for use by local governments, and a very helpful commentary on the Model Ordinance. The problem is that not all of the chapters provide practical advice.

I feel for the authors recruited to write for this collection. How difficult to compile a definitive practice guide in an area of legal doctrine which is so unsettled. However, my main frustration with this book is that it isn’t quite sure what it wants to be. It isn’t quite a practice guide but it isn’t a set of law review essays either.

Religion & Land Use

Some chapters are exceptionally well organized. I was particularly impressed with the lucidity of Professor Alan Weinstein’s treatment of the conflict between community land use regulation and religious freedom. One of the reasons this chapter worked for me is the survey of historic and social factors which begins the essay and brings context to the subsequent discussion of the law.

That discussion focuses on the yet unresolved ping-pong match between the courts and Congress in the area of free exercise of religious belief. The divided decision in Employment Division, Department of Human Resources of Oregon v. Smith, II (1990) - - a case which Weinstein describes as a “revolution” - - provoked Congress three years later into enacting the Religious Freedom Restoration Act (RFRA). The RFRA volley was met by the Supreme Court in a (surprise!) badly divided decision in Flores v. City of Boerne (1997) striking down the offending statute. Capitol Hill hit the ball back over the net in 2000 with the passage of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA may or may not survive Federal court review, but the banner of religious freedom has been picked up by several state courts, which have decisively leaned towards free exercise, and away from community land use control, by finding a different balance in their constitutions than that calibrated by the Feds.

Scott Bergthold’s chapter which reviews the law of the licensing of sexually oriented businesses has an even more Sisyphean task. This part of the law is based upon the (everyone-all-at-once-now) divided Supreme Court decision in FW/PPS v. City of Dallas (1990). As it did in the area of Free Exercise, the Court in this case tweaked a well established early 1960’s case thereby, spawning much employment for constitutional attorneys, while utterly befuddling local officials who now operate under far less legal clarity than they did a generation ago. Bergthold does an admirable job working with this convoluted material.

Some of the other chapters provided minimal practical guidance. Neil Lehto’s essay about right of way issues in cable television, for example, includes an exhaustive history of the Telecommunication Acts of 1984 and 1996 but I can’t say that having read that history gave me a much better handle on what do to when my city encounters a problem in this field.

Suggestions

The chapter regarding housing for alternative families highlights the book’s unsureness of purpose. Kathleen Stone begins her essay with a declaration that “the authors of this chapter believe that housing restrictions on non-traditional families are . . . burdens on fundamental rights of association and privacy . . .” I happen to agree with Stone’s view. What follows her declaration, however, is neither a moral and legal brief for such a view, nor a practitioner’s manual, but rather, an academic review of cases in the field.

Improvements can be made when this collection is updated. A Table of Contents outline summarizing the point headings of each essay, placed at the beginning of each chapter, would not only help the general practitioner find what she was looking for, it would cut a clearer path of argument through the legal thicket.

Frankly, the book could really use another edit. The subject is worthwhile. This book is a decent first effort. I commend the editors and urge them to give it another go.