1. Skin and Sin Constitutional Obligations for Regulating Adult Businesses and Religious Institutions

2. Adult Entertainment ► A First Amendment Issue  Related to freedom of speech (and expression) ► While we have freedom of speech, not all speech is completely free  Commercial speech  Adult establishments ► Separate from, but similar to Public Nudity

3. Adult Entertainment ► Considerations of regulation focus on addressing primary and secondary effects  Primary: Concerns about the use  Secondary: Concerns about the effects of the use on surrounding areas

4. Adult Entertainment ► Adult establishments have special primary and secondary incidents  Primary: Speech or expression  Secondary: ? ► While our concerns shall not be focused on the first, we can regulate because of the second

5. Adult Entertainment ► Two avenues exist to regulate adult establishments  Licensing  Zoning

6. Adult Entertainment ► Licensing  Special business licenses may regulate these businesses  Most concerns focus on due process issues

7. Adult Entertainment ► Licenses and Due Process  Procedural Due Process ► Inspection notification  Regular, anticipated intervals  Purpose of inspections ► Process for appeals  Timely  Not meant to impede business

8. Adult Entertainment ► Licensing and Due Process  Substantive Due Process ► Hours of Operation ► Age Limits ► Alcohol Consumption ► Levels of undress (public indecency plays a part here)

9. Adult Entertainment ► Spatial Considerations  Location, generally ► Minimum distances from schools and churches ► Location in a certain part of town  Zoning ► Must, somehow, accommodate adult businesses ► While you must not make it impossible to locate, presenting a difficulty is not unconstitutional

12. Flava Works v City of Miami ► Charge 1: ► Illegal rooming house. ► Flava Works denied these allegations, on the grounds that the company was not charging any of its models for rent while they were residents in the CocoDorm.

13. Flava Works v City of Miami ► Charge 2: ► Adult entertainment not permitted in C-1 zone property. ► Flava Works responded stating that they do not run an “Adult Entertainment” service on the property.

14. Flava Works v City of Miami ► Charge 3: ► Failure to Maintain Exterior of Commercial or Residential Property. ► Flava Works maintained in response that the property's landscape was well maintained and cleaned.

15. Flava Works v City of Miami ► Charge 4: ► Failure to maintain lot in safe, clean condition; not allowing accumulation of debris, trash or dense growth of grass. ► Flava Works maintained that the yard was in good condition.

16. Flava Works v City of Miami ► Charge 5: ► Illegally operating a business in a residential zone. ► Flava Works responded that the company was not operating a business at the property; all business activities and Internet servers are located off-site.

17. Religious Institutions ► Free Exercise Clause of First Amendment  Congress shall make no law respecting an establishment of religious beliefs, or prohibiting the free exercise thereof...  Freedom to practice your beliefs according to your own conscience, without interference or dictation by government

18. Religious Institutions ► Straightforward interpretation  Mandating a “state” religion  Restricting dogma, sacraments  Promulgating religious-based law ► Not-so-straightforward interpretation (i.e., land use)  Land use, employment, tax regulation

19. Religious Institutions ► Question: Religion aside, why can ’ t we consider a religious structure just like any other?  Answer: we can ’ t set religion aside…

20. Religious Institutions ► Free exercise of religion is based on  Which faith  How that faith is practiced  Physical activities associated with that practice

21. Religious Institutions ► How can government “ interfere? ”  Laws that are neutrally applied, can be applied to religious institutions and practices  BUT… Where is that line between belief that can be regulated, and belief that cannot?

27. Religious Institutions ► Religious Freedom Restoration Act (1993)  RFRA called into question how strong a governmental interest must be to regulate a religious institution  Re-Establishes a “ strict scrutiny ” test exceptions ► Established in a Seventh Day Adventist case  Compelling governmental interest  Least restrictive means ► Relaxed in an Oregon peyote case  No longer absolute (law upheld as a general ban, not targeting Native American Church members)

28. Religious Institutions ► Rational Basis Review  A law is rationally related to a government interest (due process, takings) ► Intermediate Scrutiny  A law furthers an important government interest in a way that is related to that interest (discrimination) ► Strict Scrutiny  A law furthers a compelling government interest in a manner that is narrowly tailored (first amendment)

29. Religious Institutions ► Currently we live by the Boerne decision  City of Boerne v Flores (1997)  Application of Historic Preservation regulations to a church  Church expansion called for the demolition of historic church, and expand on site  Permit denied due to landmark designation restrictions  Church sued

30. Religious Institutions ► Court held in favor of Boerne  Historic preservation regulations did not (in this case) infringe on religious freedom, because the regulation would have applied equally to a non- religious institution  Incidentally, the Boerne decision also reaffirmed the power of the Supreme Court (not Congress) to interpret scope of Free Exercise Clause  RFRA struck down in part

31. Religious Institutions ► Now guided by RLUIPA (2000)  Religious Land Use and Institutionalized Persons Act

32. Religious Institutions ► 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… UNLESS ► It is in furtherance of a compelling gov’t interest ► It is the least restrictive means of furthering that compelling gov’t interest

33. Religious Institutions ► An analytic framework to assess validity of regulation  Must be based on secular land use impacts rather than religious beliefs involved;  Should be applied equally to activities with similar land use impacts;

34. Religious Institutions ► An analytic framework to assess validity of regulation  Should be applied neutrally to activities with similar land use impacts;  Should be a balance between burdens imposed (on religion) and benefits secured (by gov ’ t)