There is an interesting free exercise case developing in Fairfax County, Virginia (where I live). The Church of the Good Shepherd has been informed that it may have to remove its sign after violating country rules that prohibit electronic signs from being changed more than twice a day unless they are giving weather reports. An inspector informed the church that it had posted three different messages in one day and thus stood in violation of the law. The church is objecting on religious freedom grounds — citing the Religious Land Use and Institutionalized Persons Act. Matthew 12:39 warns that “an evil and adulterous generation craves for a sign” and it appears that Fairfax County has found one.
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
Sling — then people fail to stop.
I used to be a Methodist. I came for the meatloaf, but left for the Schlitz.
What if the red light fails?
GUYS: Why do we have to have green lights?
We waste a lot of electricity on green lights.
People driving up to a green light are already going; why tell them they can keep doing what they’re already doing?
If you have flasing yellows to warn you of an imminent red, and then reds to tell you DO NOT GO, you don’t need anything to tell you to GO, do you?
How come it got this far?
I know there was no woman in charge of this thing. 🙂
While I try to avoid reading signs while driving, especially those from churches, this incident is a waste of time, money and energy. Let them get the free speech for goodness sake. This is just one more stupid reason for the religious people to claim they are being persecuted or harassed in this country. My favorite sign is the Darwin evolution one often found on cars around here; the fish with legs and the word Darwin in the middle. It’s so cute and so easy to read. For atheists and agnostics there aren’t too many flashing signs out there!
Kicking the dogs might unleash packs of sanitary inspections of your toilets, fire inspections, electrical inspections, inspections of the hanging of your church bell, the volume of your muezzin, whatever….
Paul O’Reilly,
You said you had a great deal of experience. And you have shown it now.
But, just suppose that the establishment is against this querulent pisspot, who is a general nuisance.
Would that change the course of justice in the handling of this case? You are saying in essence, that we CAN resist successfully. So many examples here deny that possibility.
I am digging after, you understand, support for the thesis that justice in the system is “bought”, paid for by power and money.
Malisha said of Fairfax county, “Abandon all hope”.
I would have it posted above the facade of the courthouse, with the addition of “yee ordinary”!
Thanks for your contribution from both reality and the ease of searching for actual juridictional ordinances.
Can we all send a Fax to the jerks in Fairfax and advise them of the First Amendment? Is not that idiot in Congress whose grandfather was Eddie Cantor from out that way? He was on tv last night and his southern accent seems forged.
“Signs, signs everywhere there’s signs, blocking up the scenery, takin’ up my time. Do this, Don’t do that can’t you read the signs.” Five Man Electrical Band
idealist7071, August 31, 2012 at 4:43 pm says:
Paul O’Reilly, What danger is there in that the zoning folks might come with a changed ordinance and seek revenge? Seriously, how many kicked dogs go quietly and lie down elsewhere?
My reply: I think there is not a lot of danger of that because zoning officials who knowingly violate the law are subject to a very real risk themselves of not only injunctions by the courts to stop their illegal actions but also the threat of monetary damages against them personally. I have seen these kinds of kicked dogs lie down and be silent after being stood up to and loosing in court. The main thing is to make sure you “kick them hard enough” (in court) so as to let them know that you will not tolerate them coming into your house and peeing on your rug again.
Sorry about that.
But there was something about “Give us a sign!”
You may all rail against petty bureaucrats, but there is another side to it.
If Jesus came today, or tomorrow, there is no way that anyone would crucify him.
The public health implications …. no way!
1. I don’t see the point of the ordinance to begin with, unless message-changing signs create a danger to public safety.
2. If the ordinance is a constitutional exercise of the police power, the religious expression challenge should fail.
3. The Northwest Assembly of God sign is particularly telling.
Mespo, re Nanny Govt., I was in NY last week (Tonya Pinkins at 54 Below singing Ethel Waters, OMG OMG!) and I saw a coca cola truck unloading and on the back of the truck was a big printed sign:
“TELL GOVERNMENT: DON’T TELL ME WHAT SIZE DRINK TO BUY!”
And I had a really good laugh! It reminded me of a mug I got once with the printed message: “Don’t tell ME what kind of day to have!”
BTW, Professor: I think only one sign should be allowed in Fairfax: Abandon Hope!
What would Jesus do?
Paul O’Reilly,
What danger is there in that the zoning folks might come with a changed ordinance and seek revenge? Seriously, how many kicked dogs go quietly and lie down elsewhere?
I am not an expert about Virginia Zoning Laws. However, I was very experienced in Ohio Zoning Laws and saw many zoning regulations struck down for one reason or another over the course of my legal career (I’m now retired). Based on this I can offer a gut feel to the effect that it is possible that this alleged violation of the county’s sign regulation (which is a part of the county’s zoning ordinance) could be successfully defended by the church under basic construction of the zoning ordinance without having to get into the admittedly fascinating issues of whether the sign regulation as applied to the church is a violation of the church’s speech or religious rights.
First, at least two of the three messages might be construed to fall under one of the exceptions set forth in the Fairfax County Zoning Ordinance (FCZO). See FCZO Art. 12 (Signs), Sec. 2(G) and 2(O), and Sec. 3(C).
Additionally, if the sign in question is one single standing structure that has the ability to allows changes to the message displayed on that one structure, then the definition sections in the zoning ordinance may also afford a basis for dismissal of the citation. See the definitions at FCZO Art. 20 (Ordinance Structure, Interpretations and Definitions), for: SIGN; STRUCTURAL ALTERATION; SUBSTANTIAL CONFORMANCE.
I have seen parts of many zoning ordinances struck down under the void for vagueness doctrine. Also, I have seen some zoning ordinances completely invalidated where the zoning authority did not follow the statutory requirements for adopting or modifying those ordinances. If I were the church I’d consider hiring a good local zoning attorney and try to knock out the citation through routine zoning law and statutory construction of the Fairfax County Zoning Ordinance which I found and read at:
http://www.fairfaxcounty.gov/dpz/zoningordinance/
That is Miz Scarlett not Mix.