No. 95-1381

In the Supreme Court of the United States

OCTOBER TERM, 1995

VILLAGE OF AIRMONT, NEW YORK, ET AL., PETITIONERS

v.

RABBI YITZCHOK LEBLANC-STERNBERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

JESSICA DUNSAY SILVER
MARIE K. MCELDERRY
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that
the evidence justified a jury verdict finding that
petitioners had violated the Fair Housing Act, 42
U.S.C. 3601 et seq., in that they intentionally dis-
criminated against respondents and other Orthodox
and Hasidic Jews by enacting a zoning ordinance for
the purpose of excluding places of worship necessary
to the practice of their religion.
2. Whether the court of appeals correctly held that
respondents' claims warranted injunctive relief.

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 11
Conclusion . . . . 17
     
TABLE OF AUTHORITIES 

Cases:

American Construction Co. v. Jacksonville, T. &
K.W.R.R., 148 U.S. 372 (1893) . . . . 12
Braunfeld v. Brown, 366 U.S. 599 (1961) . . . . 13
Brotherhood of Locomotive Firemen v. Bangor &
Aroostock R.R., 389 U.S. 327 (1967) . . . . 12
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993) . . . . 13
Employment Div., Dep't  of Human Resources v.
Smith, 494 U.S. 872 (1990) . . . . 13
Farmer v. Brennan, 114 S. Ct. 1970 (1994) . . . . 16
First Assembly of God of Naples, Florida, Inc. v.
Collier County, 20 F.3d 419, modified on denial
of rehearing, 27 F.3d 526 (11th Cir. 1994), cert.
denied, 115 S. Ct. 730 (1995) . . . . 14-15
Grosz v. City of Miami Beach, 721 F.2d 729
(11th Cir. 1983), cert. denied, 469 U.S. 827 (1984) . . . . 12, 14
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916) . . . . 12
Islamic Center of Mississippi, Inc. v. City of
Starkville, 840 F.2d 293 (5th Cir. 1988) . . . . 15
Keego Harbor Co. v. City of Keego Harbor, 657
F.2d 94 (6th Cir. 1981) . . . . 13
Lakewood, Ohio Congregation of Jehovah's Witnesses,
Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir),
cert. denied, 464 U.S. 815 (1983) . . . . 12, 13, 14

(III)

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IV

Cases-Continued:              

Page

LeBlanc-Sternberg v. Fletcher:
763 F. Supp. 1246 (S.D.N.Y. 1991) . . . . 6
781 F. Supp. 261 (S.D.N.Y. 1991) . . . . 7
No. 91 Civ. 2550 (GLG), 1996 WL 208307 (S.D.N.Y.
Apr. 25, 1996) . . . . 11
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) . . . . 15
Park View Heights Corp. v. City of Black Jack,
467 F.2d 1208 (8th Cir. 1972) . . . . 16-17
Pennsylvania v. West Virginia, 262 U.S. 553
(1923) . . . . 15-16
Sherbert v. Verner, 374 U.S. 398 (1963) . . . . 13 
Swift & Co. v. United States, 276 U.S. 311 (1928) . . . . 16
United States v. City of Black Jack, 508 F.2d 1179
(8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975) . . . . 11
United States v. City of Parma, 661 F.2d 562
(6th Cir. 1981), cert. denied, 456 U.S. 926 (1982) . . . . 11 
United States v. Village of Airmont,
No. 91 Civ. 8453 (GLG), 1996 WL 208307 (S.D.N.Y.
Apr. 25, 1996) . . . . 11
Virginia v. American Booksellers Association, Inc.,
484 U.S. 383 (1988) . . . . 16
Virginia Military Institute v. United States,
113 S. Ct. 2431 (1993) . . . . 12
Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . 15
Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . . 13

Constitution, statutes and rule:

U.S. Const. Amend. I (Free Exercise Clause) . . . . 6, 7
9, 10, 12, 15, 16
Fair Housing Act, 42 U.S.C. 3601 et seq . . . . 6, 11
802(i)(2), 42 U.S.C. 3602(i)(2) . . . . 16

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V

Statutes and rule-Continued:

Page

Religious Freedom Restoration Act of 1993,
42 U.S.C. 2000bb et seq . . . . 13
42 U.S.C. 1983 . . . . 10
42 U.S.C. 1985(3) . . . . 10
Fed. R. Civ. P. 50(b) . . . . 9

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In the Supreme Court of the United States 

OCTOBER TERM, 1995   
       
No. 95-1381

VILLAGE OF AIRMONT, NEW YORK, ET AL., PETITIONERS

v.

RABBI YITZCHOK LEBLANC-STERNBERG, ET AL.
                              
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION
                   
OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-
49a) 1. is reported at 67 F.3d 412. The opinions of the
district court (Supp. Pet. App. 51a-56a, 57a-89a) are
reported at 846 F. Supp. 294 and 839 F. Supp. 1054,
respectively.
       
JURISDICTION

The judgment of the court of appeals was entered on
September 21, 1995. A petition for rehearing was
denied on November 28, 1995. Pet. App. 50a. The

___________________(footnotes)                                 

1 The appendix to the petition does not include the last page
of the court of appeals' opinion. It is attached as an appendix
to the LeBlanc-Sternberg Brief in Opposition.

(1)

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2

petition for a writ of certiorari was filed on February
26, 1996. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
        
STATEMENT

1. This litigation arose out of the incorporation of
the Village of Airmont, New York, in 1991. Prior to
incorporation, the Airmont community was an unin-
corporated area of the Town of Ramapo, New York.
During the 1980s, the number of Orthodox Jews
(including Hasidic Jews, a subgroup of Orthodox
Jewry) residing in Ramapo increased dramatically.
Pet. App. 7a. In most residential areas, however,
Ramapo's zoning code would not allow a place of
worship to be located on a lot of less than two acres,
and "[construction of a synagogue on such a lot
would cost as much as $750,000, an expenditure that
would require the support of approximately 150
families, far beyond the number of Orthodox Jewish
families living near each other in Airmont." Id. at 8a.
Unlike adherents of other religious faiths, Orthodox
Jews cannot travel substantial distances to a place of
worship for services or prayer because the tenets of
their religion do not permit them to use mechanical
means of transportation on the Sabbath or on certain
religious holidays. Id. at 7a. Strict observance by
Orthodox Jews also requires daily worship, and
certain prayers may be said only if a "minyan," a
group of ten males at or above the age of thirteen, is
present. Ibid. As a consequence, Orthodox Jews
must live within walking distance of a place where
they can congregate for worship. Id. at  7a-8a.
In the mid-1980s, Ramapo accommodated the needs
of Orthodox Jews for a place of worship near their
homes by relying on a provision of its zoning code

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regarding "home professional officer[s]," which per-
mits members of certain "learned professions; in-
cluding clergy, to operate offices within their homes,
subject to certain restrictions. Pet. App. 8a. Ramapo
interpreted the zoning code provision to permit rabbis
to conduct worship services in their homes, subject to
limitations on the number of persons who could
gather at any given time. Id. at 8a-9a. Ramapo also
enacted a change in its zoning code to permit multi-
family dwellings in a small section of town where a
group of Hasidic Jews resided. Id. at 9a.
When a group of Hasidic Jews purchased another
parcel of land in the Airmont area, a group of Ramapo
residents from that area, who were members of the
Airmont Civic Association (ACA), began efforts to
incorporate Airmont as a village. As an incorporated
village, separate from Ramapo, Airmont would-be able
to have its own zoning code. Pet. App. 9a.
The ACA sought incorporation as a village with the
expressed intent of keeping Orthodox and Hasidic
Jews out of the Airmont community, Pet. App. 9a-10a.
For example, at an ACA meeting in August, 1986,
ACA leaders read aloud a response to a poll conducted
by the ACA of Airmont residents that stated:
[W]hat would be better, for us to loose [sic] our
homes for a religious sect or for us to live as we
have lived for the past 25 years * * *.

* * * * *

* * * [L]et the people in the unincorporated
Area of Ramapo, go ahead and fight for what they
believe in. Instead of giving up for what we've
worked very hard for, to a bunch of people who
insist on living in the past. I am not prejudice [sic]

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in any way, shape or form but i [sic] will not have a
hasidic community in my backyard.

Id. at 10a. (emphasis in original). The minutes of the
same meeting reported predictions of "a grim picture
of a Hasidic belt from Rockland through Orange &
Sullivan counties." Ibid. At an ACA meeting shortly
after the land purchase, an attendee stated that
"everybody knows * * * why the Airmont Civic
Association was formed. What does the Airmont Civic
Association and the proposed village plan to do to keep
these Hasidum [sic] out?" Ibid. The ACA's original
president, James Filenbaum, told the developer of the
Hasidic Jews' land parcel that "the reason of forming
this village is to keep people like you out of this
neighborhood." Ibid. At another ACA meeting, an
attendee stated that "the only reason we formed this
village is to keep those Jews from Williamsburg [a
Hasidic community in Brooklyn, New York] out of
here." Id. at ha.
A referendum on incorporation of Airmont was held
on January 30, 1989, and the vote was in favor of
incorporation by a margin of 3 to 1. Pet. App. 11a.
Formal incorporation was delayed, however, by
litigation in state court challenging the manner in
which the referendum was conducted. Meanwhile, the
ACA continued to oppose actions by the Town of
Ramapo to approve zoning variances that would allow
Orthodox Jewish houses of worship. For example,
ACA opposition, including litigation in state court,
delayed the Town's approval of an application by a
rabbi to construct a free-standing synagogue on a lot
that was 1.926 acres, slightly under the two-acre
minimum required by the zoning code. Id. at 13a.

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In addition, ACA members went before the Ramapo
Planning Board to oppose respondent Rabbi LeBlanc-
Sternberg's application to conduct worship services
in his home. In the course of doing so, they expressed
anti-Orthodox sentiments and stated that Orthodox
Jews should not have moved into the area, since they
knew when they did so that there were no houses of
worship. Pet. App. 13a-14a. Ramapo initially denied
the application, then twice approved it, but the ACA
financed two successful state court challenges to the
approvals. Id. at 14a. Ramapo approved the applica-
tion for a third time, including certain restrictions on
the number of congregants and restricting home
worship to Jewish holidays and the Sabbath. Ibid. By
then, the Village of Airmont was incorporated and it
decided not to pursue a third state court challenge. A
village trustee and former ACA board member stated
that the Village did not need to pursue another state
court challenge since "there are other ways we can
harass them." Ibid. An ACA member, who was
later appointed to the Airmont Planning Board,
and others stationed themselves outside Rabbi
LeBlanc-Sternberg's house to count the number of
congregants (ibid.), and "conducted surveillances of
Orthodox Jewish homes at prayer times" (id. at 16a).
2. a. The Village of Airmont was formally incor-
porated on April 10,1991, Pet. App. ha, On April 12,
1991, the private respondents, a group of Orthodox
Jewish residents of the Village of Airmont, including
Rabbi LeBlanc-Sternberg, filed a complaint in the
United States District Court for the Southern
District of New York, against the Village, the ACA,
Ramapo and several leaders of the incorporation
movement, claiming that the incorporation of the
Village had been undertaken for the purpose of

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excluding Orthodox Jews, in violation of various
federal laws, including the Fair Housing Act (FHA),
42 U.S.C. 3601 et seq., and the First Amendment.
They sought damages and injunctive relief, and moved
preliminarily to enjoin the election of the Village
mayor and board of trustees that was scheduled for
May 16, 1991. Pet. App. 12a. The district court denied
an injunction on the grounds that respondents
had failed to establish irreparable harm.  LeBlanc -
Sternberg v. Fletcher, 763 F. Supp. 1246, 1250-1252
(S.D.N.Y. 1991). Shortly thereafter, the ACA's slate
of candidates was elected and took office as the
Village Mayor and the members of. its Board of
Trustees. Pet. App. 12a.
On December 17, 1991, the United States filed suit
against the ACA, the Village, and the Village trust-
ees in their official capacities, alleging that the in-
corporation of Airmont had been accomplished "for
the purpose of excluding Orthodox Jews" from the
Village by, inter alia, imposing burdensome zoning
and other restrictions upon Orthodox Jewish places of
worship in the Village, in violation of the FHA. The
United States sought declaratory and injunctive
relief. Pet. App. 12a.
In January, 1993, the Village of Airmont adopted a
zoning code. Pet. App. 14a. The code contained sev-
eral modifications of the "home professional office"
provision of the Ramapo zoning code and stated the
Village's intention that that provision "not generate
activities that come into a residential area so as to
detract from the residential character of the area."
Id. at 15a. The Village appointed a board of appeals
and a planning board to interpret and apply the code.
One of the appointed board members-was an ACA
member who had stated that most persons were

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opposed to home houses of worship; he also had
participated in the surveillance of Orthodox Jewish
homes at prayer time. Id. at 15a-16a. The mayor and
three of the four trustees who adopted the zoning code
all "testified at trial that they were opposed to the
Ramapo-type interpretation of the [home professional
office] provision to allow worship services in the
homes of clergy." Id. at 16a. Respondents contended
that, in light of the circumstances surrounding the
adoption of the zoning provision, the interpretation it
would be given was a foregone conclusion. See ibid.
b. The two cases were consolidated and proceeded
to trial. 2. The damages claims by the private respon-
dents were tried to a jury at the request of peti-
tioners; the government's suit was tried to the court.
Pet. App. 12a-13a. 3. On December 13, 1993, after eight
weeks of trial and a week of deliberations, the jury
returned a verdict against the Village, finding that it
had violated private respondents' rights under the
FHA and had conspired to violate their rights under
the First Amendment. Id. at 18a-19a.  The jury
awarded no damages. Id. at 19a. The jury returned a
verdict in favor of the individual defendants. Id. at
18a. Two days after the jury verdict, the district court
dismissed the government's suit. Pet. App.  19a; Supp.

___________________(footnotes)      

2 On December 24, 1991, the district court had denied
petitioners' motion to dismiss the private suit, rejecting, inter
alia, petitioners' challenge to the private respondents' stand-
ing, to the justifiability of their claims, and to their statement
of a cause of action. LeBlanc-Sternberg v. Fletcher, 781 F.
Supp. 261 (S.D.N.Y. 1991).

3 Claims against some original defendants were settled or
dismissed prior to trial and a default judgment had been
entered against the ACA. Pet. App. 17a.

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Pet. App. 57a-89a. The court found that there was no
basis for injunctive relief because the Village of
Airmont had not taken any actions that violated the
rights of Orthodox Jews in that, since incorporation,
it had enacted, but not interpreted, the zoning code.
The court stated that, although the differences be-
tween the Airmont code and the Ramapo code "argu-
ably could be taken as a signal for a different
interpretation," the Village "might not" interpret its
code to prevent the use of home houses" of worship by
Orthodox and Hasidic rabbis for worship services.
Pet. App. 19a; Supp. Pet. App. 77a-79a. The court
dismissed the case, notwithstanding its acknowledg-
ment that, "[v]iewing the evidence in the light most
favorable to the Government, we can foresee that the
[Airmont] Planning Board and the Zoning Board of
Appeals (to the extent the matter might be submitted
to it) will not adopt the Ramapo interpretation of the
home professional office exception." Pet. App. 20a.
The court also recognized that the absence of actions
against the Orthodox and Hasidic  Jews in Airmont by
the Village or the trustees since the incorporation of
the Village could have been caused by the pendency of
the instant litigation. Ibid. The court concluded
that, "if there is any action taken in the future which
violates their rights, the United States Government
and other plaintiffs will not be timorous about suing.
Consequently, we see no basis or need for injunctive
relief."  Id. at 20a-21a.  The court believed that
injunctive relief, as requested by the United States,
to prohibit petitioners from denying persons their
constitutional rights "was unnecessary because it
would merely enjoin acts that are already illegal." Id.
at 21a; Supp. Pet. App. 79a.

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The district court also denied private respondents
any injunctive relief. Pet. App. 21a. Three months
after trial, on March 16, 1994, the district court also
granted petitioners' motion for judgment as a matter
of law under Federal Rule of Civil Procedure 50(b).
Pet. App. 22a; Supp. Pet. App. 51a-56a. The court
viewed the jury verdict against the Village as inter-
nally inconsistent because the jury had found that the
Village had violated the private respondents' FHA
rights and conspired to violate their constitutional
rights to the free exercise of religion and free speech,
but "did not award any damages[,] not even the $1
nominal damages it could have awarded on the civil
rights claim."  Supp. Pet. App. 52a. The court
incorporated in its findings the facts it had found and
the reasoning set forth in its decision dismissing the
government's suit. Id. at 53a. The court also rejected
the argument that petitioners' actions had a chilling
effect on the respondents' First Amendment rights
and concluded that, because the private respondents
already had their zoning permits, the worst situation
they would face, if the Airmont code were to be
interpreted differently from the Ramapo code, would
be as a non-conforming use. Pet. App. 23a; Supp. Pet.
App. 54a.
3. The court of appeals reversed the judgments
dismissing the private respondents' and the United
States' claims against the Village. 4. Pet. App. 1a-49a;
LeBlanc-Sternberg Br. in Opp. App. A1. The court

___________________(footnotes)

4 The court affirmed the judgment dismissing the private
respondents' suit against the individual defendants and dis-
missed the cross-appeal of two of the individual defendants as
moot. Pet. App. 6a, 44a-46; LeBlanc-Sternberg Br. in Opp.
App. A1.

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remanded for an award of nominal damages and
injunctive relief in the private suit and for declara-
tory and injunctive relief in the United  States' action.
LeBlanc-Sternberg Br. in Opp. App. A-1.
The court held that "the evidence was sufficient to
establish that Airmont violated the private [respon-
dents'] rights under the Fair Housing Act and the
First Amendment; that the district court was not
entitled to set aside the jury's verdict against the
Village on those claims on the basis of the court's
own findings in the government's action; that in light
of the established violation of their rights, the private
[respondents] were entitled to an award of nominal
damages; that the jury's verdict against the Village
constituted collateral estoppel that required the
court to find that the government had established a
violation by the Village; and that in ruling that
injunctive relief was not appropriate, the court failed
to apply pertinent [Fair Housing Act] principles."
Pet. App. 24a-25a. The court found that, when viewed
in the light most favorable to the private respondents,
"there was ample support for the jury's implicit
finding that Airmont's zoning code would be inter-
preted to restrict the use of home synagogues, that
the motivation behind the enactment was discrimina-
tory animus toward Orthodox and Hasidic Jews, and
that Airmont pursued this goal jointly with ACA."
Id. at 41a. Accordingly, private respondents estab-
lished the Village of Airmont's liability on their
claims under the FHA, the First Amendment, and 42
U.S.C. 1983 and 1985(3), entitling them to nominal
damages. Pet. App. 36a-42a. The court ordered the
district court to consider whether injunctive relief in
favor of private respondents was appropriate in light
of the jury's verdict. Id. at 44a.

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The court of appeals held that the United States
was entitled to a declaratory judgment under its FHA
claim. Pet. App. 47a-48a. In addition, the court held
that the United States was entitled to an injunction
"prohibiting the application of the Airmont zoning
code in the discriminatory manner found to be pre-
dictable from the evidence in this record." Id. at 49a.
The court of appeals denied a petition for rehearing
on November 11, 1995. Pet. App. 50a. 5.

ARGUMENT

The United States brought suit under. the Fair
Housing Act (FHA), 42 U.S.C. 3601 et seq., in order to
prevent the Village of Airmont and its officials from
fulfilling their expressed intent to keep Orthodox and
Hasidic Jews from living and practicing their religion
within the Village. Petitioners do not challenge the
merits of the court of appeals' decision under the
FHA. There is, indeed, no basis for doing so in light
of well-established principles that forbid a govern-
ment from taking action with the purpose of ex-
cluding a class of persons protected by the FHA from
residing within its jurisdiction,  See, e.g., United
States v. City of Parma, 661 F.2d 562 (6th Cir. 1981),
cert. denied, 456 U.S. 926 (1982); United States v. City
of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert.
denied, 422 U.S. 1042 (1975). Petitioners, instead,
assert that there is a conflict among the circuits con-
             
___________________(footnotes)          
              
5 On remand, the district court entered injunctive relief
against the Village in both cases, awarded the private respon-
dents nominal damages and entered declaratory relief in the
government's case. United States v. Village of Airmont, No.
91 Civ. 8453 (GLG), 1996 WL 208307,208244 (S.D.N.Y. Apr. 25,
1996); LeBlanc-Sternberg v. Fletcher, No. 91 Civ. 2550 (GLG),
1996 WL 208307, 208302 (S.D.N.Y. Apr. 25, 1996).

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12

cerning the proper standard under the First Amend-
ment for reviewing local zoning actions that involve
religious discrimination, and they urge reversal of
the court of appeals' ruling on ripeness grounds.
Neither of those contentions has merit.
1. Petitioners seek review of the court of appeals'
judgment remanding the cases for further proceed-
ings. Pet. App. 6a. This Court ordinarily does not
review interlocutory decisions of this type on certio-
rari. See Virginia Military Institute v. United
States, 113 S. Ct. 2431,2432 (1993) (opinion of Scalia,
J., respecting denial of certiorari), citing American
Construction Co. v. Jacksonville, T. & K.W.R.E., 148
U.S. 372, 384 (1893); and Brotherhood of Locomotive
Firemen v. Bangor & Aroostock R.R., 389 U.S. 327,
328 (1967) (per curiam). The lack of finality of the
judgment below is thus "of itself alone" a "sufficient
ground for the denial of the [writ]." Hamilton-Brown
Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251,258 (1916). 6.
2. Petitioners contend (Pet. 6-10) that the courts
of appeals are divided regarding whether the First
Amendment requires any accommodation for reli-
gious worship that is burdened by local zoning deci-
sions.
Neither of the cases cited by petitioners (Pet. 6-9)
as purported] y in conflict with the decision below, i.e.,
Lakewood, Ohio Congregation of Jehovah's Wit-
nesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th
Cir.), cert. denied, 464 U.S. 815 (1983), and Grosz v.
City of Miami Beach, 721 F.2d 729 (11th Cir. 1983),
cert. denied, 469 U.S. 827 (1984), involved allegations

___________________(footnotes)
                                                             
6 As noted above, see note 5, supra, the district court has
entered its judgments on remand and petitioners may seek
further review of those final orders.

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of intentional discrimination. Both involved applica-
tion of neutral laws of general applicability which,
under Employment Div., Dep't of Human Resources
v. Smith, 494 U.S. 872 (1990), "need not be justified by
a compelling governmental interest even if the law
has the incidental effect of burdening a particular
religious practice." Church of Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520 (1993). 7.
Lakewood involved a zoning ordinance that prohib-
ited the building of a church in a residential neighbor-
hood. The ordinance prevented the Congregation of
Jehovah's Witnesses from being able to build a new
church on a lot that it owned. The court emphasized
that the ordinance did not have the purpose or effect
of prohibiting the Jehovah's Witnesses or any other
faith from practicing its religion. 699 F.2d at 307.
The ordinance "simply regulate[d] a secular activity
and, as applied to the [Congregation], operate[d] so as
to make the practice of their religious beliefs more
expensive." Ibid., quoting Braunfeld v. Brown, 366
U.S. 599, 605 (1961) (opinion of Warren, C.J.). The
court in Lakewood contrasted the situation there
with that in Keego Harbor Co. v. City of Keego
Harbor, 657 F.2d 94 (6th Cir. 1981), in which a zoning
ordinance had been declared unconstitutional because
"its purpose and effect were to eliminate from the city
              
___________________(footnotes)
         
7 This case does not involve a claim under the Religious
Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et
seq., which was enacted in response to this Court's decision in
Smith. RFRA restores the compelling interest test, as set
forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin
v. Yoder, 406 U.S. 205 (1972), for claims involving govern-
mental action that substantially burdens the exercise of reli-
gion, even if the burden results from a rule of general
applicability.

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14

the exercise of a first amendment right." Lakewood,
699 F.2d at 307.
Similarly, in Grosz, there was no contention that
the zoning laws at issue were "aimed at impeding
religion." 721 F.2d at 733. It was instead uncon-
troverted that "the law has both secular purpose and
effect ." Id. at 738. The Eleventh Circuit found that
the home of the rabbi in which the religious services
were sought to be conducted was within four blocks of
a district in which publicly attended religious ser-
vices were permitted, and that services were
permitted in one-half of the City's territory. Id. at
731, 739.
The Eleventh Circuit in First Assembly of God of
Naples, Florida, Inc. v. Collier County, 20 F.3d 419,
modified on other grounds on denial of rehearing, 27
F.3d 526 (1994), cert. denied, 115 S. Ct. 730 (1995),
noted the special analysis that is required when a
zoning ordinance singles out a particular religious
practice for unfavorable treatment. The court con-
trasted the situation in Grosz from that in Lukumi
Babalu Aye, where the local law was held to violate
the Free Exercise Clause because it "target[ed] the
use of animal sacrifice for religious purposes." First
Assembly of God, 20 F.3d at 423. Both Grosz and First
Assembly of God involved enactments of general ap-
plicability not motivated by hostility toward religion.
The compelling interest analysis applied in Lukumi
was therefore not applicable. Id. at 424. 8.
      
___________________(footnotes)

8 In an amendment to its decision, added in the course of
denying a petition for rehearing and suggestion of rehearing
en bane, the First Assembly court noted that RFRA, which
was enacted on November 16, 1993, might be-applicable to the
claims in that case. It declined to address that issue, because it
had not been raised by either party. First Assembly of God of

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Unlike Lakewood and Grosz, the instant case in-
volves purposeful discrimination based upon religion.
The Village of Airmont was incorporated for the
purpose of deterring Orthodox Jews from residing in
Airmont and the Village conspired to impede the
private plaintiffs' exercise of their First Amendment
free exercise rights. Pet. App. 36a, 41a. The court of
appeals' decision in this case is also consistent with
the only decision cited by petitioners (Pet. 8-9) that
involved purposeful discrimination against a particu-
lar religious group. Islamic Center of Mississippi,
Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988).
In that case, the court concluded that the city
"favored Christian churches over Muslim mosques"
by granting exemptions from its zoning ordinance for
every Christian denomination that had applied; the
city denied an exemption only to the Islamic group.
Id. at 294, 297, 302-303.
3. The court of appeals correctly applied settled
principles of law in concluding that respondents had
standing to bring this action and that injury to
respondents was sufficiently impending to warrant
injunctive relief. Petitioners' disagreement with the
court of appeals' decision focuses on the requirement
that the injury complained of by respondents be
"actual or imminent." Pet. 12-13, citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992);
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The
decision below, however, was premised on the well-
established principle that a plaintiff need not "await
the consummation of threatened injury to obtain
preventive relief." Pennsylvania v. West Virginia, 
Naples, Florida, Inc. v. Collier County, 27 F.3d 526 (11th Cir.
1994), cert. denied, 115 S. Ct. 730 (1995). See note 7, supra.

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262 U.S. 553, 593 (1923). The court of appeals also
emphasized that "the victim of a conspiracy to violate
First Amendment freedoms has standing to bring suit
before the conspiracy has resulted in economic or
tangible injury." Pet. App. 30a, citing Virginia v.
American Booksellers Association, Inc., 484 U.S. 383,
393 (1988) (facial First Amendment challenge to law
limiting display of sexually explicit material, prior to
law's enforcement, was not premature).
As the court of appeals recognized (Pet. App. 26a),
the FHA provides standing to a person who believes
he "will be injured by a discriminatory housing
practice that is about to occur." 42 U.S.C. 3602(i)(2).
This provision is based on the well-established prin-
ciple that "a suit for an injunction deals primarily,
not with past violations, but with threatened future
ones; * * * an injunction may issue to prevent
future wrong, although no right has yet been
violated." Swift & Co. v. United States, 276 U.S. 311,
326 (1928); accord Farmer v. Brennan, 114 S. Ct.
1970, 1983 (1994) (prisoner facing substantial risk of
serious injury is not required to wait for "tragic
event" such as actual assault before bringing suit to
obtain injunctive relief).
The trial evidence demonstrated the need for
judicial intervention in this case. The incorporation
of the Village of Airmont, for the expressed purpose
of enacting a stricter zoning code than Ramapo's
code, in order to exclude Orthodox Jews' home houses
of worship (as well as the enactment of the Airmont
zoning ordinance itself) were designed to chill the
exercise of both First Amendment and FHA rights.
See Pet. App. 26a-27a, quoting Park View Heights
Corp. v. City of Black Jack, 467 F.2d 1208, 1216 (8th
Cir. 1972) (under circumstances similar to those in

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this case, court found "[i]t would be futile to require
the plaintiffs to proceed any further at the local
level").
        
CONCLUSION

The petition for a writ of certiorari should be
denied.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

JESSICA DUNSAY SILVER
MARIE K. MCELDERRY
Attorneys

MAY 1996

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