Friday, October 22, 2010

Penalty Payments 4 Jesus

Here's a question:

Homeowner paints a giant message on the roof of his farm, saying "Jesus saves". (Not that the content of the message is legally relevant, but it goes to motivation.) The municipality decides that it is a zoning violation, in the sense that it is ugly and therefore in violation of the zoning codes that say what you can and cannot do with your house, for the greater living enjoyment of all. The homeowner seeks annullment and loses. (Well, he loses partially. Technically, the court annulled the decision, but not on freedom of speech grounds, but on motivation grounds. As a result, the municipality was able to simple take the same decision again, only with a better explanation.) The homeowner appeals to the Council of State, and loses again. The verdict of the courts is simple: he has to take down the message or forfeit a penalty payment of € 500 a week, with a maximum of € 15.000.

Now here comes the tricky part (even more tricky than the conflict between zoning regulations and freedom of religion, which is actually easy enough as the recent early morning church bells case shows):

Instead of taking down his message, the homeowner paints it red and orange, compared to the original white. Question: Can the municipality still forfeit the penalty payments? Or does it have to litigate the case all over again?

Normally, the colour of the message would be an irrelevant detail. If he had written something defamatory or otherwise offensive on the roof, the penalty payment would still be forfeited after the second paint job. But in this case, the esthetic quality of the paint job was the entire basis of the municipality's argument. As a result, it is understandable that the court in Dordrecht ruled today that, while the homeowner's freedom of religion argument is covered by issue estoppel and can therefore not be relitigated, the municipality has to take a new decision concerning the new colour scheme, which will then undoubtedly be subject to renewed litigation.

Clever huh?

P.S. The title of this post is obviously based on the famous American Supreme Court "Bong Hits 4 Jesus" case, otherwise known as Morse v. Frederick (2007). It should be noted that, despite its name, that case was not actually about religious speech. Instead it was about speech in a school setting.

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