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The Department of Justice has added federal muscle to Redwood Christian Schools’ legal fight to build a 650-student campus in a rural Castro Valley neighborhood. Meanwhile, Alameda County last week scored a victory when Senior U.S. District Court Judge Samuel Conti dismissed several individually named county officials from the suit. Lawyers for the county had said the private school’s targeting of community leaders was a bullying tactic. The events are the latest developments in Redwood Christian Schools v. County of Alameda, 01-4282. The case is one of several pending in courts around the country that test the 2-year-old Religious Land Use and Institutionalized Persons Act, also know as RLUIPA (pronounced RAY-lupa). The law was created to give religious groups a legal tool to fight overly strict local land rules. Redwood Christian filed a RLUIPA suit against Alameda County in 2001 when the Board of Supervisors rejected its building proposal after three years of wrangling. The suit claims private schools have to go through a cumbersome conditional-use permit process that public schools can avoid. The county claims that it has not violated the land use act, but has argued in court papers that the federal law may not be constitutional. Among other things, the county has argued that RLUIPA exceeds Congress’ Fourteenth Amendment powers. The county also said it violates the Tenth Amendment and the First Amendment’s Establishment Clause. Enter the Department of Justice. In court papers, Washington, D.C.-based Department of Justice trial attorney Diane Kelleher argues that RLUIPA is on firm constitutional ground. “Defendant’s main argument is that RLUIPA violates the Establishment Clause because it gives religious believers and institutions an ‘unlimited privilege’ to be exempted from land-use regulations with which secular entities must comply,” wrote Kelleher. “This argument flies in the face of the court’s teaching that merely because a law alleviates significant governmental interference with religious exercise � does not mean that it impermissibly advances religion,” she continued. The DOJ doesn’t take a position on other case issues that don’t deal with the legal basis for the law, Kelleher’s brief said. On Wednesday, Alameda County Counsel Richard Winnie downplayed the county’s constitutional challenge to the land use act. However, the legal basis for the law may come into play if the case goes further, he said. “This is a simple land use case,” Winnie said. “We think their case falls even if you follow the RLUIPA.” Redwood Christian takes an extreme view of the law, he said. The school’s lawyers feel that any institution “with the color of religion” is immune from local land use rules, he said. The law only protects such groups from discrimination, he said. Also, Winnie said, Redwood Christian’s legal moves are dictated by a conservative East Coast group, The Becket Fund for Religious Liberty. The public interest law firm has helped churches and other religious groups wage legal battles over the law, which has yet to be weighed by a federal circuit court. The Becket Fund lawyers have stopped short of saying that they seek a test case. According to the fund’s Web site, its advisory board includes major figures in conservative politics such as Sen. Orrin Hatch, R-Utah, and Rep. Henry Hyde, R-Ill. “I think that there is a link between [Attorney General John] Ashcroft and these extremists,” said Winnie. “There might be some view in the Department of Justice that they want to please this extreme view.” The attorney general is a devout Christian, and as a Missouri senator, had a conservative voting record. An East Bay lawyer who represents the school said that Winnie’s conspiracy theory is baseless. “I imagine that maybe Ashcroft’s beliefs are in line with us personally,” said Mark Gaither, the younger half of a San Ramon father-son team who is litigating the case. However, the DOJ has a whole department that routinely deals with RLUIPA challenges, he said. Plus, The Becket Fund doesn’t have a Christian focus, Gaither said. It has represented Muslims and Buddhists in other cases. RLUIPA’s support crosses ideological lines, he added. The ACLU was a major supporter of the law when its was enacted, he said. On the other end of the spectrum, the Pacific Legal Foundation has filed an amicus in Redwood Christian. A Department of Justice spokesman in Washington said that the office routinely files briefs in support of RLUIPA. “There has been no difference between the time of the Clinton administration and the Bush administration,” said spokesman Charles Miller. “As [cases] come, we are dealing with them,” he said. This week Winnie was celebrating the Aug. 15 ruling from Conti, which removed individual county supervisors and members of a volunteer advisory board of Castro Valley residents from the suit. The county called The Becket Fund lawyers’ efforts to put personal assets of those officials on the line a “thug tactic.” “If you are interested in the legal principle, you don’t need to intimidate,” Winnie said. “The court will take up your cause.” The Redwood Christian lawyer added that another California federal judge’s ruling this month shows that the legal tide is turning. In Cottonwood Christian Center v. City of Cypress, SA02-60, the center sought a preliminary injunction to stop the Cypress redevelopment agency’s eminent domain proceedings. The center wants to build a 4,700-seat auditorium and other buildings on land the city wants for a retail center. Among its arguments, Cottonwood claims that the city violated RLUIPA. On Aug. 6, U.S. District Court Judge David Carter penned a 36-page order granting the injunction. The Central District judge wrote that the land use act is one of several grounds to grant an injunction in the land dispute. In March 2003, the Cottonwood litigants will head to trial to sort out the case, including alleged RLUIPA violations. Both sides in Redwood Christian are scheduled to head back to court on Sept. 27. Then Conti is supposed to weigh the school’s motion for partial summary judgment on liability issues.

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