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The current dispute in Los Angeles over the construction of an 8,100-square-foot Orthodox synagogue in the heart of the pricey, residential Hancock Park section, offers a prime illustration of a major principle of law and economics: It is very hard to get things right in a second-best world. Quite simply, if the legal system starts off on the right foot, it is generally possible to stay on track. Once there is a departure from sound first principles, it is tough slogging from then on. Does one try to correct one error with a second? Is it better to let the first error ride even if it produces some further complications? How do these abstractions play out here? This dispute followed familiar lines. After a protracted battle, the city issued a building permit to the synagogue, only for the synagogue to be attacked in court by neighbors unhappy with that outcome. From this simple scenario comes a titanic struggle between the power of local zoning boards to restrict land use and the Religious Land Use and Institutionalized Persons Act (RLUIPA), by which Congress made it illegal for states to enforce zoning codes that impose “substantial burdens” on religious organizations unless they can demonstrate a “compelling governmental interest.” This law clips the wings of local zoning boards. Before RLUIPA, zoning boards ruled supreme because their decisions could be challenged only under the lenient, if misnamed, “rational basis” test-any claim of uses inconsistent with the character of the neighborhood saves the statute. Post-RLUIPA, zoning-board actions face strict scrutiny. Consider the world pre-RLUIPA: Could neighbors stop the construction of a synagogue in a residential neighborhood? The intuitive answer depends first on whether the religious activities count as a nuisance-a term conjuring up notions of smells, pollutants and noise. The usual conduct of a synagogue or a church does not constitute a nuisance per se, though actual operation of the facility, like any intensive land use, could produce such secondary effects. The standard common law response in such cases was to wait and see: The facility gets constructed, and if a nuisance manifests itself, the neighbors can get some relief (not usually by shutting down the operation, but by limiting hours, cars or occupancy, etc.). A synagogue would stand no better or worse than any other organization. Round One goes to the synagogue. Zoning generally changes the legal responses in two ways, both bad. First, it gives a much broader definition of what counts as a nuisance, to cover those ubiquitous practices perceived to be incompatible with the character of the neighborhood and to shut them down. The decisive 1926 pro-zoning decision of Euclid v. Ambler Realty hinted darkly at apartment houses as nuisance-like activities in fancy neighborhoods. By that logic the rhythm of a religious service could do so as well. Second, the zoning board does not have to wait for the occurrence of actual harm to move into action. It can nip these nuisances in the bud, so great is their ostensible peril. Euclid represents a constitutional low point-its deviation from common law principles opens local politics to factional intrigue. Indeed, its broad definition of nuisance has been rejected in First Amendment free speech cases. Trickier still, the First Amendment has two religion clauses. The establishment clause prevents the state from engaging in discrimination that favors religious institutions. The free exercise clause requires strong justifications for any limitation on the exercise of religious liberties (in thought and practice). Now that the U.S. Supreme Court has constitutionally blessed zoning law, any state law could violate one of these guarantees. The establishment clause is offended if religious institutions receive a clear preference that bypasses ordinary land use law and are governed by the now-discarded common law standard of nuisance. But the free exercise clause requires more or less what RLUIPA provides-a strong reason to halt religious practices, which the preservation of neighborhood character argument doesn’t quite supply. We have gone down this path before. In 1990, the Supreme Court held in Smith v. Employment Board that the religiously circumscribed use of peyote could be punished under a neutral anti-drug law, thereby undermining the earlier position that required a strong state reason for the limitation of religious liberty. Justice Scalia’s view was that any neutral law was fine, no matter what its impact on religion. Hard on its heels came the 1993 Religious Freedom Restoration Act, by which Congress tried to force states to hew to the pre- Smith standard. That statute was in turn struck down in City of Boerne v. Flores (1997), as an illicit intrusion on state power. It takes no genius to see that RLUIPA looks like a rerun of the religious freedom act for zoning boards and prisons. The second-best world dilemma remains. Error one was giving zoning boards carte blanche over land use. Error two was watering down guarantees of liberty under a neutrality standard. This problem would never arise if the zoning laws were not given such large powers in the first place. As a libertarian, I would wink at any supposed establishment clause violation in order to undo some of the damage of Euclid. Indeed, in January, RLUIPA was struck down by a Virginia district court, insofar as it applies to institutionalized persons who had requested Kosher meals. The case may be outrageous, but I would guess that when the Supreme Court gets its hands on it, RLUIPA will follow the religious freedom act to the dustbin of history, chased by the twin villains of Euclid and Smith. The background presumption of individual liberty and common law of nuisance never looked so good. Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and a senior fellow at the Hoover Institution, based in Stanford, Calif.

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