skin and sin constitutional obligations for regulating adult businesses and religious institutions

Skin and SinSkin and Sin

Constitutional Obligations for Constitutional Obligations for Regulating Adult Businesses Regulating Adult Businesses

and Religious Institutionsand Religious Institutions

Adult EntertainmentAdult Entertainment

►A First Amendment IssueA First Amendment Issue Related to freedom of speech (and Related to freedom of speech (and

expression)expression)

►While we have freedom of speech, not While we have freedom of speech, not all speech is completely freeall speech is completely free Commercial speechCommercial speech Adult establishmentsAdult establishments

►Separate from, but similar to Public Separate from, but similar to Public NudityNudity


►Considerations of regulation focus on Considerations of regulation focus on addressing primary and secondary addressing primary and secondary effectseffects

Primary: Concerns about the usePrimary: Concerns about the use Secondary: Concerns about the effects of Secondary: Concerns about the effects of

the use on surrounding areasthe use on surrounding areas


►Adult establishments have special Adult establishments have special primary and secondary incidentsprimary and secondary incidents

Primary: Speech or expressionPrimary: Speech or expression Secondary: ?Secondary: ?

►While our concerns shall not be While our concerns shall not be focused on the first, we can regulate focused on the first, we can regulate because of the secondbecause of the second


►Two avenues exist to regulate adult Two avenues exist to regulate adult establishmentsestablishments

LicensingLicensing ZoningZoning


►LicensingLicensing Special business licenses may regulate Special business licenses may regulate

these businessesthese businesses Most concerns focus on due process Most concerns focus on due process

issuesissues


►Licenses and Due ProcessLicenses and Due Process Procedural Due ProcessProcedural Due Process

►Inspection notificationInspection notification Regular, anticipated intervalsRegular, anticipated intervals Purpose of inspectionsPurpose of inspections

►Process for appealsProcess for appeals TimelyTimely Not meant to impede businessNot meant to impede business


►Licensing and Due ProcessLicensing and Due Process Substantive Due ProcessSubstantive Due Process

►Hours of OperationHours of Operation►Age LimitsAge Limits►Alcohol ConsumptionAlcohol Consumption►Levels of undress (public indecency plays a Levels of undress (public indecency plays a

part here)part here)


►Spatial ConsiderationsSpatial Considerations Location, generallyLocation, generally

►Minimum distances from schools and churchesMinimum distances from schools and churches►Location in a certain part of townLocation in a certain part of town

ZoningZoning►Must, somehow, accommodate adult Must, somehow, accommodate adult

businessesbusinesses►While you must not make it impossible to While you must not make it impossible to

locate, presenting a difficulty is not locate, presenting a difficulty is not unconstitutionalunconstitutional

Flava Works v City of MiamiFlava Works v City of Miami

►Charge 1:Charge 1:► Illegal rooming house.Illegal rooming house.►Flava Works denied these allegations, Flava Works denied these allegations,

on the grounds that the company was on the grounds that the company was not charging any of its models for rent not charging any of its models for rent while they were residents in the while they were residents in the CocoDorm. CocoDorm.


►Charge 2:Charge 2:►Adult entertainment not permitted in Adult entertainment not permitted in

C-1 zone property. C-1 zone property. ►Flava Works responded stating that Flava Works responded stating that

they do not run an “Adult they do not run an “Adult Entertainment” service on the Entertainment” service on the property. property.


►Charge 3:Charge 3:►Failure to Maintain Exterior of Failure to Maintain Exterior of

Commercial or Residential Property. Commercial or Residential Property. ►Flava Works maintained in response Flava Works maintained in response

that the property's landscape was well that the property's landscape was well maintained and cleaned.maintained and cleaned.


►Charge 4:Charge 4:►Failure to maintain lot in safe, clean Failure to maintain lot in safe, clean

condition; not allowing accumulation condition; not allowing accumulation of debris, trash or dense growth of of debris, trash or dense growth of grass. grass.

►Flava Works maintained that the yard Flava Works maintained that the yard was in good condition.was in good condition.


►Charge 5:Charge 5:► Illegally operating a business in a Illegally operating a business in a

residential zone. residential zone. ►Flava Works responded that the Flava Works responded that the

company was not operating a business company was not operating a business at the property; all business activities at the property; all business activities and Internet servers are located off-and Internet servers are located off-site.site.

Religious InstitutionsReligious Institutions

►Free Exercise Clause of First Free Exercise Clause of First AmendmentAmendment Congress shall make no law respecting an Congress shall make no law respecting an

establishment of religious beliefs , or establishment of religious beliefs , or prohibiting the free exercise thereof...prohibiting the free exercise thereof...

Freedom to practice your beliefs according Freedom to practice your beliefs according to your own conscience, without to your own conscience, without interference or dictation by governmentinterference or dictation by government


►Straightforward interpretationStraightforward interpretation Mandating a “state” religionMandating a “state” religion Restricting dogma, sacramentsRestricting dogma, sacraments Promulgating religious-based lawPromulgating religious-based law

►Not-so-straightforward interpretation Not-so-straightforward interpretation (i.e., land use)(i.e., land use) Land use, employment, tax regulationLand use, employment, tax regulation


►Question: Religion aside, why canQuestion: Religion aside, why can’’t we t we consider a religious structure just like consider a religious structure just like any other?any other?

Answer: we canAnswer: we can’’t set religion aside…t set religion aside…


►Free exercise of religion is based onFree exercise of religion is based on Which faithWhich faith How that faith is practicedHow that faith is practiced Physical activities associated with that Physical activities associated with that

practicepractice


►How can government How can government ““interfere?interfere?”” Laws that are neutrally applied, can be Laws that are neutrally applied, can be

applied to religious institutions and applied to religious institutions and practicespractices

BUT… Where is that line between belief BUT… Where is that line between belief that can be regulated, and belief that that can be regulated, and belief that cannot?cannot?


►Religious Freedom Restoration Act (1993)Religious Freedom Restoration Act (1993) RFRA called into question how strong a RFRA called into question how strong a

governmental interest must be to regulate a governmental interest must be to regulate a religious institutionreligious institution

Re-Establishes a Re-Establishes a ““strict scrutinystrict scrutiny”” test exceptions test exceptions►Established in a Seventh Day Adventist caseEstablished in a Seventh Day Adventist case

Compelling governmental interestCompelling governmental interest Least restrictive meansLeast restrictive means

►Relaxed in an Oregon peyote caseRelaxed in an Oregon peyote case No longer absolute (law upheld as a general ban, not No longer absolute (law upheld as a general ban, not

targeting Native American Church members)targeting Native American Church members)


►Rational Basis ReviewRational Basis Review A law is rationally related to a government interest A law is rationally related to a government interest

(due process, takings)(due process, takings)

► Intermediate ScrutinyIntermediate Scrutiny A law furthers an A law furthers an importantimportant government interest in government interest in

a way that is related to that interest (discrimination)a way that is related to that interest (discrimination)

►Strict ScrutinyStrict Scrutiny A law furthers a A law furthers a compellingcompelling government interest in government interest in

a manner that is narrowly tailored (first amendment)a manner that is narrowly tailored (first amendment)


►Currently we live by the Boerne decisionCurrently we live by the Boerne decision City of Boerne v Flores (1997)City of Boerne v Flores (1997) Application of Historic Preservation Application of Historic Preservation

regulations to a churchregulations to a church Church expansion called for the demolition Church expansion called for the demolition

of historic church, and expand on siteof historic church, and expand on site Permit denied due to landmark designation Permit denied due to landmark designation

restrictionsrestrictions Church suedChurch sued


►Court held in favor of BoerneCourt held in favor of Boerne Historic preservation regulations did not (in Historic preservation regulations did not (in

this case) infringe on religious freedom, this case) infringe on religious freedom, because the regulation would have applied because the regulation would have applied equally to a non-religious institutionequally to a non-religious institution

Incidentally, the Boerne decision also Incidentally, the Boerne decision also reaffirmed the power of the Supreme Court reaffirmed the power of the Supreme Court (not Congress) to interpret scope of Free (not Congress) to interpret scope of Free Exercise ClauseExercise Clause

RFRA struck down in partRFRA struck down in part


►Now guided by RLUIPA (2000)Now guided by RLUIPA (2000) Religious Land Use and Institutionalized Religious Land Use and Institutionalized

Persons ActPersons Act


►No government shall impose or No government shall impose or implement a land use regulation in a implement a land use regulation in a manner thatmanner that Imposes a substantial burden on the Imposes a substantial burden on the

religious exercise of a person… UNLESSreligious exercise of a person… UNLESS►It is in furtherance of a compelling gov’t It is in furtherance of a compelling gov’t

interestinterest►It is the least restrictive means of furthering It is the least restrictive means of furthering

that compelling gov’t interestthat compelling gov’t interest


►An analytic framework to assess An analytic framework to assess validity of regulationvalidity of regulation

Must be based on secular land use Must be based on secular land use impacts rather than religious beliefs impacts rather than religious beliefs involved;involved;

Should be applied equally to activities Should be applied equally to activities with similar land use impacts;with similar land use impacts;


►An analytic framework to assess An analytic framework to assess validity of regulationvalidity of regulation

Should be applied neutrally to activities Should be applied neutrally to activities with similar land use impacts;with similar land use impacts;

Should be a balance between burdens Should be a balance between burdens imposed (on religion) and benefits imposed (on religion) and benefits secured (by govsecured (by gov’’t)t)

skin and sin constitutional obligations for regulating adult businesses and religious institutions

Documents

freedom of speech

adult businesseswhile

residential property

zone property

adult entertainment

business activities

businessesmost concerns

residential zone