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Case 6:06-cv-01583-GAP-KRS

Document 88

Filed 09/26/2008

Page 12 of 14

B. Count II: Free Exercise of Religion12

The City argues that because this Court found that the Ordinance does not violate the

FRFRA, it must also conclude that it does not violate the Free Exercise clause of the First

Amendment.13

It is true that the FRFRA provides protection to a greater number of activities than the First

Amendment. See Warner v. City of Boca Raton, 887 So. 2d 1023, 1032 (Fla. 2004). However, it

does not necessarily follow, as the City suggests, that “a determination that the ordinance does not

violate FRFRA mandates a further determination that the ordinance does not violate the Free

Exercise Clause.” (Doc. 82 at 4).

Here, there is no question that the activity involved falls within the protection of both the

FRFRA and the Free Exercise Clause. However, this Court held that Plaintiffs have failed to show

that the Ordinance places a “substantial burden” on this activity as defined under the FRFRA. To

succeed on their First Amendment claim, however, Plaintiffs are not required to show that the

Ordinance places a “substantial burden” on the exercise of their religion. Rather, the Court must

independently evaluate the First Amendment claim. See Warner v. City of Boca Raton, 420 F.3d

1308, 1310 (11th Cir. 2005).

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of

12This Count is asserted only by Pastor Nichols and FVCG.

13The City relies on Men of Destiny Ministries, Inc. v. Osceola County, 20 Fla. L. Weekly Fed. D 314, an Order issued by this Court on November 6, 2006. Upon review, it appears that this Court’s analysis in Men of Destiny relied on the finding that there was a rational basis for the statute in question.

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