Yoel Oberlander, a convicted sex offender, has succeeded in challenging prohibitions on where he is allowed to live under a local law that created “pedophile-free child safety zones” in the county after 15 locations were rejected by the probation office. Oberlander previously lost a case in which he argued that prohibitions were unconstitutional because as an Orthodox Jew he needed to be walking distance from a synagogue.

It appears that his devout faith did not prevent the crimes Oberlander pleaded guilty to in 2002: second-degree sexual abuse, second-degree unlawful imprisonment and endangering the welfare of a child, all misdemeanors.

In People v. Oberlander, (Sup. Ct., Jan. 22, 2009), a New York state trial court struck down the local ordinance as pre-empted by a less restrictive state law. A New Jersey court had previously voided local living zones for sex offenders as conflicting with that state’s law. In this case, the inconsistency was due to the fact that the state law allowed sex offenders to live within the 1,000-foot zones, if they had been there before passage of the law.

The new was used recently to compel the arrest of Oberlander and Betzalel Dym in this area and is viewed by survivors as an important protection of children.

In his previous lawsuit, Oberlander argued that he needed to live in the Town of Ramapo within walking distance of a synagogue. The court, however, held that “The defendant’s ‘need’ to live in Ramapo is no stronger than those of the potential victims within the town that share the same religious beliefs. The State has validly exercised its police powers to protect vulnerable citizens of all religions, in Ramapo, and throughout Rockland County. Undoubtedly, a compelling government interest in the legislation has been demonstrated.”

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This short opinion by Judge William A. Kelly is below:

William A. Kelly, J.

The defendant has moved for an Order dismissing the Violation of Probation filed against him. The defendant claims that he did not violate probation, and that Local Law No. 1 of 2007 is Unconstitutional on its face and as applied to the defendant. The County of Rockland has opposed the motion.

The Violation of Probation alleges that the defendant violated the conditions of probation in that he “moved to a residence within 1,000 feet of a Rockland County pedophile-free child safety zone’ in violation of Local Law No. 1 of 2007.” Local Law No. 1 of 2007 provides that a sex offender shall not reside, work or loiter within a child safety zone. “The term child safety zone shall mean one thousand feet of the real property comprising a public or private, elementary, middle or high school, child care facility, park playground, public or private youth center or public swimming pool.” Id. The statute does exempt those sex offenders who resided within a safety zone prior to the effective [**2] date of the statute. Id.

The defendant fails to provide sufficient documentary evidence to dismiss the violation of probation. The defendant has not set forth a copy of the map he relied upon, nor a sufficient affidavit from the planning department or similar body supporting the position that he cannot locate a sufficient residence. See Doe v. Miller, 405 F.3d 700 (8th Cir. 2005). In Doe, the challengers to a similar Iowa statute “presented evidence concerning the enforcement of [the statute], including maps that had been produced by several cities and counties identifying schools and child care facilities and their corresponding restricted areas.”

The issues of fact raised by the defendant will be addressed at the scheduled hearing on the matter. Absent a sufficient factual predicate, this Court cannot assess the merits of the defendant’s position.

The defendant’s Constitutional challenge is apparently a Due Process [*2] challenge based upon the Free Exercise Clause of the First Amendment. In pertinent part, that Clause, as applied to the states under the 14th Amendment provides that a legislative body “shall make no law respecting an establishment of religion, or prohibiting the free exercise [**3] thereof.” U.S. Const. amend. I. See First Presbyterian Church of Schenectady v. United Presbyterian Church in the U.S., 62 NY2d 110, 464 N.E.2d 454, 476 N.Y.S.2d 86 (1984). Similarly, the New York State Constitution provides that “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind.” NY Const. Art. I, §3. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520, 533, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993).

Validly enacted laws, including local laws, enjoy a presumption of Constitutionality. 41 Kew Gardens Road Assoc. v. Tyburski, 70 NY2d 325, 514 N.E.2d 1114, 520 N.Y.S.2d 544 (1987); Lighthouse Shores, Inc. v. Town of Islip, 41 NY2d 7, 359 N.E.2d 337, 390 N.Y.S.2d 827 (1976): Korotun v. Incorporated Village of Bayville, 26 AD3d 311, 809 N.Y.S.2d 533 (2nd Dep’t 2006). Opponents face a heavy burden of demonstrating Constitutional infirmity. Lighthouse Shores, Inc. v. Town of Islip, 41 NY2d 7, 359 N.E.2d 337, 390 N.Y.S.2d 827 (1976). Courts should strike down legislation as Unconstitutional only as a last resort. Id.

A facially neutral enactment [**4] will not be invalid merely because it has the incidental effect of burdening a particular religious group. Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990); U.S. v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982); Gillette v. U.S., 401 U.S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971). See also Catholic Charities of the Diocese of Albany v. Serio, 7 NY3d 510, 859 N.E.2d 459, 825 N.Y.S.2d 653 (2006); N.Y.S. Employment Relations Board v. Christ the King Regional High School, 90 NY2d 244, 682 N.E.2d 960, 660 N.Y.S.2d 359 (1997).

“[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not [facially] neutral.” Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520, 533, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). See also Catholic Charities of the Diocese of Albany v. Serio, 7 NY3d 510, 859 N.E.2d 459, 825 N.Y.S.2d 653 (2006). “To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id.

In the instant case, an examination of Local Law No. 1 of 2007 clearly shows that it is facially neutral. There is no mention, overt or implicit, of religion [*3] or the practice [**5] thereof. Therefore, the defendant’s only remaining argument is that the statue is Unconstitutional as applied.

“The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring effects of governmental action on a religious objector’s spiritual development.'” Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 U.S. 872, 885, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (quoting Lyng v. Northwest Indian Cemetary Protective Assn., 485 U.S. 439, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988)). “[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Id.

In this case, the defendant claims that he is unable to find suitable housing within the Town of Ramapo, “his selected town,” that is not violative of the statute. The defendant claims that because he is an observant orthodox Jew, he must live within walking distance a Schul or temple. As a result he claims that the statute places a burden on the practice of his religion.

As set forth above, [**6] that conclusion is unsupported by any documentary evidence. Further, even if true, such a conclusion is based upon a claimed necessity to live in the Town of Ramapo. Other than the statement that Ramapo is “his selected town,” nothing has been submitted demonstrating the defendant’s religious need to live within the Town of Ramapo.

There have been relatively few cases analyzing the Constitutionality of similar statutes, and none in the context of the Free Exercise Clause. In Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), the Circuit Court of Appeals upheld an Iowa statute that prohibited sex offenders from living within 2000 feet of schools and daycare centers.

“After viewing these maps and hearing testimony from a county attorney, the district court found that the restricted areas in many cities encompass the majority of the available housing in the city, thus leaving only limited areas within city limits available for sex offenders to establish a residence. In smaller towns, a single school or child care facility can cause all of the incorporated areas of the town to be off limits to sex offenders.” Id. at 706. The Court found that unincorporated areas, small towns with no school or [**7] child care facility, and rural areas remained unrestricted, but that available housing in these areas is “not necessarily readily available.” Id.

Nevertheless, despite these findings regarding the unavailability of housing, the 8th Circuit held that the statute passed Constitutional muster. Id. The Court [*4] stated that “the Constitution of the United States does not prevent the State of Iowa from regulating the residency of sex offenders in this manner in order to protect the health and safety of the citizens of Iowa. Id. at 705.

Although the Court did not address a Free Exercise claim, it analyzed the statute against a number of Due Process claims including alleged violations of an individual’s right of travel and the right of familial association. The Court held that an individuals right to choose his residence must give way to the State’s valid exercise of its police power. Furthermore, it upheld the long standing principle that an individual does not have a fundamental right to choose where he lives. Id. at 714.

In 2006, the 8th Circuit Court of Appeals upheld a similar Arkansas statute.

Weems v. Little Rock Police Department, 453 F.3d 1010 (8th Cir. 2006). The Court held that the statute [**8] rationally advanced its goals of protecting children from sexual predators and that it did not interfere with any fundamental rights. Notably, the Court did hold that the Arkansas statute was racially and religiously neutral. Id. at 1016.

As the U.S. Supreme Court has made clear, in cases involving facially neutral legislation, the government need not demonstrate a compelling interest to validate the enactment. Oregon v. Smith, 494 U.S. 872, 885, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Nevertheless, Rockland County has demonstrated a compelling interest underlying the enactment of the law. The statute was enacted to protect the health, welfare and safety of the citizen’s of Rockland County. The legislature specifically found that the statute was enacted to prevent “easy access to potential victims.” Similarly, in enacting its version of Megan’s Law, the New York State legislature stated that “[t]he legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government.” Correction §168.

The [**9] defendant’s “need” to live in Ramapo is no stronger than those of the potential victims within the town that share the same religious beliefs. The State has validly exercised its police powers to protect vulnerable citizens of all religions, in Ramapo, and throughout Rockland County. Undoubtedly, a compelling government interest in the legislation has been demonstrated.

Therefore, the defendant has not met the substantial burden of demonstrating that the law was Unconstitutional on its face or as applied. The defendant’s remaining contentions lack merit.

[*5] Accordingly, the defendant’s motion is denied.

This Decision shall constitute the Order of the Court.

ENTER

Dated: New City, New York

June 18, 2008

William A. Kelly

J.S.C.