Religious Freedoms vs. Land-Use Laws

A Vermont couple is challenging the decision of a state zoning commission that limits their right to illuminate a 24 foot cross on their own property to several weeks around Christmas.
February 7, 2011, 12pm PST | Victor Negrete
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Dave Gram, of the Associated Press, describes the story of a couple that has started a First Amendment battle in Vermont.

"To Richard and Joan Downing, the 24-foot-tall cross on a hilltop on their property is an expression of their faith. To a state commission that regulates land use, it is out of character with the natural beauty of the rural neighborhood and should come down."

"Assistant Attorney General Robert McDougall, representing the state, says that when the issue is religious liberty, the courts usually try to see whether restrictions pose a "substantial burden" on someone's free exercise of their faith.

In court filings, he said, the Downings have not claimed that without that symbol (the cross) they are unable to practice their faith or required to act contrary to their religious beliefs."

"Patricia Salkin, an Albany Law School professor who maintains a blog on land-use law, said the circumstances are similar to a person wanting to post a sign on his or her property saying "I hate the president." The sign is protected speech. But "if it's a sign so out of scale with the character of the community, the municipality might say it can't be bigger than X-dimension," Salkin said.

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Published on Monday, February 7, 2011 in BurlingtonFreePress.com
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