Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP
In the spirit of the holidays, I come bearing two gifts.
This is a tough time of the year to get legal news. Few decisions are rendered, there aren’t many bombastic public hearings, and even IMLA is off until after New Years. I searched for something good to report and found nothing, until…a bright star appeared in the sky and I was led to these two stories on Christmas Eve.
First, this time of the year, our thoughts usually turn to nativity scene naysayers. That pesky Establishment Clause in the First Amendment seems to draw the line — but not always — somewhere between sheep and three wise men being okay, and the baby Jesus in the traditional swaddling clothes (does Gap Kids™ have a line of swaddling clothes?). “Swaddle” is a verb, you know, as in “Honey, how about I swaddle the little guy before we head out to the mall.”). Anyway, cross that line, wherever it is, and you have a constitutional violation. For a good discussion of the ins and outs of this manger madness, including diluting the religious by throwing in some secular, see ACLU v. Schundler, 168 F.3d 92; 1999 U.S. App. LEXIS 2541, (3rd Cir 1999).
The fun fight this year, more fun than listening to Grandma harangue your useless nephew over the excessive time he spends playing Grand Theft Auto IV™, is over Christmas decorations at a Maryland townhouse community, the developers call it a “neo-traditional small town.” It seems that two homeowners at Worman’s Mill in Frederick have put up outside decorations without the express approval of the homeowners’ association. Debra Sachs and her neighbor Donald Suhaka have been told their decorations don’t fit the “design concept’ of the community and have been summoned before the covenants committee (that would not be the holy covenants). “Community Group Orders Removal of Christmas Decorations,” The Washington Post, Dec. 24, 2008 available here. For a view of their neat neighborhood, search Stoney Creek Road, Frederick, Maryland on www.maps.live.com or go to the marketing website http://www.wormansmill.com.
The accused have lawyered up: “Every homeowner has the right to quietly enjoy their property, and here my client simply wants to put up a Christmas display, as many people do in Frederick,” said David Greber of Greber Associates, PC. Homeowner’s Association Forcing Residents To Take Down Christmas Lights, WHAG-TV, Dec. 24, 2008 http://www.msnbc.msn.com/id/28374660/.
Second, the Court of Appeals of Maryland handed down a decision on Christmas Eve, and …wonder of wonders what should appear, but a holding: “No RLUIPA substantial impact here”…and the government folks all went off to their beds, snuggled (or swaddled) and clear in their heads… that denying a variance for such a big sign was nothing the court would ever malign. Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, et al., 2008 Md. Lexis 630. Available here. Our Annual ALI-ABA Land Use Institute fellow faculty member, Judge Harrell, wrote the decision, probably looking for a topic to speak on next summer.
Happy New Year.