It may be a sign of our times that there is nothing sacred. Today a burning talking bush would result in a fire code citation and lawsuit for failing to have a sign interpreter for the hearing impaired.
Before addressing the free exercise issue, I am not sure what surprises me more: that the county has a law regulating how many messages can appear on electronic signs or that it has someone who actually monitors the messages on electronic signs. Given the host of underfunded school and county programs, I think we have isolated a position that can be freed up for more productive use.
In this case, the Vienna United Methodist church posted three messages on one day. One offered people refuge from the heat. The church then posted a reference to its web sites. Then came the final and fatal message . . . wait for it . . . the church listed the time of a group prayer meeting. That final message shocked a Fairfax zoning inspector who dashed off a warning to the church “It is noted that the screens changed more than twice in a twenty-four (24) hour period. This changeable copy LED sign is considered a prohibited sign.” So now the county wants a permanent limit of just two messages a day on the sign or for the sign to be taken down.
Notably, the messages on that day followed a severe storm that knocked out the electricity of the whole whole, leaving many in distress. Here are the three specific messages:
“Welcome, come on in and beat the heat”
“Visit us at goodshepherdva.com.”
“Practicing the Presence, Thurs., July 5, 1 pm.”
That last message was clearly not received by Fairfax officials.
Now the church is suing as a matter of both free speech and free exercise. They are relying on the Religious Land Use and Institutionalized Persons Act (RLUIPA), Pub.L. 106-274, which prohibits overly burdensome zoning law restrictions on religious properties. RLUIPA provides:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C.A. § 2000cc(a)(1).
“Religious exercise” is defined as “includ[ing] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7)(A).
Maryland has a sign challenge of a different kind a few years ago under the law. See Trinity Assembly of God of Balt. City, Inc. v. People’s Counsel for Balt. County, 407 Md. 53 (2008). In that case, a church challenged the denial of a permit to construct two large signs. The court rejected the claim citing other courts:
We resolve that, under the RLUIPA, a land use regulation, or a zoning authority’s application of it, imposes a substantial burden on religious exercise only if it leaves the aggrieved religious institution without a reasonable means to observe a particular religious precept. Such a regulation would be “oppressive to a significantly great extent.” See Guru Nanak Sikh Soc’y, 456 F.3d at 988 (internal quotations omitted). If, however, the religious institution may adhere to that precept through some viable alternative mode, the land use regulation at issue is not a substantial burden on religious exercise, even though it may make that exercise more difficult or expensive.
In this case, the Church may be hard pressed to show a substantial burden. It can speak through various means and can post up to two different messages each day. However, I fail to see how the sign regulation satisfies even a rational basis test. How is a different sign a nuisance to the neighborhood?
I also do not see why Fairfax would want to litigate such a claim rather than reach a compromise or amend the law.
The position of Fairfax appears to come directly out of Mark 8:12: “And he sighed deeply in his spirit and said, “Why does this generation seek a sign? Truly, I say to you, no sign will be given to this generation.”
Frankly, I find the Methodist sign tame in comparison to some others around the country:
Source: Washington Post