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

Document 88

Filed 09/26/2008

Page 13 of 14

burdening a particular religious practice. Employment Div., Dept. Of Human Res. of Ore. v. Smith, supra.

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) [hereinafter

Lukumi”]. Since the Ordinance is content neutral, the rational basis test will be applied to

determine whether the ordinance is constitutional. “Under this test, a rationally based, neutral law

of general applicability does not violate the right to free exercise of religion even though the law

incidentally burdens a particular religious belief or practice.” Miller v. Reed, 176 F.3d 1202, 1206

(9th Cir. 1999) (citing, inter alia, Employment Div. v. Smith, 494 U.S. 872, 879 (1990)).

The Court finds that there is no rational basis for this Ordinance. None of the legitimate

government interests proffered by the City are served by this Ordinance. Furthermore, as this

Court found in its Order on Defendant’s Rule 52 motion, the Ordinance does much more than

incidentally burden Nichols’ congregation. (See Doc. 79 at 4). Therefore, the Court finds that the

application of this Ordinance violates the First Amendment rights of Nichols and FVCG.

C. Count IV: Freedom of Assembly

All Plaintiffs argue that the Ordinance violates their right to freely assemble.14

The right to assemble is protected by the First Amendment to the United States Constitution. Restrictions of this right are proper only when they relate to the time, place, or manner of the assembly and “are narrowly tailored to serve significant governmental interests and leave open ample alternative channels of communication.” See Cent. Fla. Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1523 (11th Cir. 1985).

14As stated previously by this Court, both parties have also referred to the right to expressive association throughout this litigation. (Doc. 55 at 7 n.7). However, this right is not mentioned in the Complaint and has not been briefed by Plaintiffs in their trial brief. Thus, it appears that Plaintiffs are not pursuing such a claim.

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