Justice Gorsuch wants to eliminate nationwide injunctions

It's too early in the year for the big Supreme Court rulings to come down, but the Justices often write up a concurrence or dissent on motions that come before the Court. These sometimes take the form of essays in which the Justices ruminate on a legal issue and give insight on where they want the law to go. Making news this week was an application to stay lower federal court rulings that enjoined a Trump administration rule that allows immigration authorities to deny green cards to immigrants who might go on certain forms of public assistance. In support of that application, Justice Gorsuch suggests the Court should take a look at nationwide injunctions. This is a sleeper issue for the Court.

The case is Department of Homeland Security v. New York, issued on January 27. Cases around the country are challenging the new regulations. The Ninth Circuit last year allowed the rules to take effect. That case was City and County of San Francisco v. United States Citizenship and Immigration Services, 944 F.3d 773 (9th Cir. 2019). But other cases have gone the other way. What happens in these cases is that the judge may enjoin enforcement of the regulation nationwide, not just locally. And that's where Justice Gorsuch comes in.

The Court this week stayed any injunctions arising from the new "public charge" issue. Justice Gorsuch takes up the issue of national injunctions, making it clear he wants to do away with them. After noting that some courts around the country have enjoined the new rule nationwide but some courts have not, he writes,

If all of this is confusing, don’t worry, because none of it matters much at this point. Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit.The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.

Justice Gorsuch goes on to say that nationwide injunctions "raise serious questions about the scope of courts' equitable powers under Article III," the constitutional provision that authorizes the federal courts. "It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions." In addition, "Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide."

Justice Thomas joins in this discussion, which is filled with casual writing of the kind we have come to expect from Justice Gorsuch. The writing style is interesting, but the larger issue, of course, is whether the Court will prohibit local federal courts from issuing nationwide injunctions when it determines that a law or regulation is unconstitutional or illegal.  

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City & Cty. of San Francisco v. United States Citizenship & Immigration Servs., 944 F.3d 773, 780 (9th Cir. 2019)

Court upholds $120,000 in damages for false arrest and malicious prosecution claim

This case arose when plaintiff sued her former boyfriend for instigating her unlawful arrest. She claimed the defendant falsely told the police that she made harassing phone calls and that she had otherwise called him in violation of an order protection, resulting in her arrest and prosecution. Plus, plaintiff says, defendant assaulted her. The case went to trial and plaintiff won. Now it goes to the Court of Appeals, which says the damages were not too high.

The case is Levitz v. Bree, a summary order issued on January 24. This is not a federal civil rights claim, as plaintiff abandoned those claims prior to trial. So the jury only heard the state law claims. While it rejected the battery claims, the jury found in plaintiff's favor on the false arrest and malicius prosecution claims, awarding her $120,000 in damages: $50,300 for pain and suffering and $70,000 in punitive damages.

The jury never knows this, but the case often does not end when the jury reaches a verdict. The parties continue litigating the case. The losing party tries to convince the trial judge that there was insufficient evidence to support the verdict, and that the damages were too high. That's what happened here. But those efforts often fail. In this case, the Court of Appeals (Hall, Sullivan and Bianco) finds that the evidence supports the finding that defendant gave the police false evidence resulting in plaintiff's arrest and prosecution. The evidence also establishes that defendant lied to the police in claiming plaintiff made harassing phone calls. Here is how the district court sized up the evidence:

The defendant contends that I should grant his Rule 50 motion on the basis of his trial testimony that the plaintiff made excessive and unwelcome telephone calls and left messages on his home answering machine. It was, however, up to the jurors to decide whether they believed the defendant’s testimony. Their verdict is evidence that they did not. The plaintiff testified that she and the defendant had a long-standing romantic relationship during the period of the purportedly harassing communications, that they frequently communicated with each other via email and telephone throughout the course of their relationship, and that the communications were consensual. The jury also heard evidence that the defendant’s wife discovered the defendant’s affair with the plaintiff sometime in December of 2013 or January of 2014, around the time the defendant first filed a criminal complaint against the plaintiff. The plaintiff denied making harassing calls and leaving harassing voice messages; she testified that the defendant continued to contact her even after he obtained an order of protection against her, and that he pressed her to resume their affair, and accept a plea offer to appease his wife. The plaintiff’s testimony was corroborated, at least in part, by emails and photographs, which the jury also saw. On the other hand, there was far less evidence to corroborate the defendant’s version; the phone records were either nonexistent or did not support the defendant’s testimony, and even the defendant’s wife’s testimony was not entirely consistent with the defendant’s description of the events.

What about the damages awards? Were they too high? Juries have discretion to award damages, but if they award too much money, the court can reduce them. The jury has no idea its damages award will be scrutinized by the lawyers and judges long after the trial ends. As the trial court saw it, the compensatory damages were actually lower than comparable cases. Here is what the trial judge said about the false arrest damages:

The jury’s compensatory damages award for the false arrest claims was well within the range of, and in fact significantly lower than, awards affirmed in comparable cases involving similar injuries. See, e.g., Martinez v. Port Auth. of N.Y. & N.J., 445 F.3d 158, 160 (2d Cir. 2006) (affirming a $360,000 compensatory award for a false arrest claim where the plaintiff was in custody for 19 hours, had not been physically assaulted, but had experienced emotional distress such as sleeplessness and anxiety); Graham, 128 F. Supp. 3d at 715 (affirming jury’s compensatory award of $150,000 for his false arrest claim where the plaintiff had combined injuries including approximately one hour of lost liberty, some minor physical pain and injury, and past and future emotional harm, including fear, panic and humiliation); Martinez v. Gayson, No. 95–CV–3788, 1998 WL 564385, at *6 (E.D.N.Y. June 30, 1998) (reducing compensatory damages award to $160,000 for false arrest and malicious prosecution claims when the plaintiff was arrested at work and detained for approximately five hours, suffered humiliation but no physical injuries, and was tried on subsequent criminal charges and acquitted).

The jury awarded the plaintiff compensatory damages of $22,500 for the two arrests ($12,500 for the first arrest, and $10,000 for the second arrest). The evidence showed that when the plaintiff was arrested on February 25, 2014, she was handcuffed, and held overnight for 19 hours, and that she was held for another three hours when she was arrested on March 9, 2014. There was testimony from the plaintiff’s mother and friend that the plaintiff suffered some emotional and mental distress as a result of the arrests. The jury’s compensatory damages award for the false arrest claims was well within the range of, and in fact significantly lower than, awards affirmed in comparable cases involving similar injuries. See, e.g., Martinez v. Port Auth. of N.Y. & N.J., 445 F.3d 158, 160 (2d Cir. 2006) (affirming a $360,000 compensatory award for a false arrest claim where the plaintiff was in custody for 19 hours, had not been physically assaulted, but had experienced emotional distress such as sleeplessness and anxiety); Graham, 128 F. Supp. 3d at 715 (affirming jury’s compensatory award of $150,000 for his false arrest claim where the plaintiff had combined injuries including approximately one hour of lost liberty, some minor physical pain and injury, and past and future emotional harm, including fear, panic and humiliation); Martinez v. Gayson, No. 95–CV–3788, 1998 WL 564385, at *6 (E.D.N.Y. June 30, 1998) (reducing compensatory damages award to $160,000 for false arrest and malicious prosecution claims when the plaintiff was arrested at work and detained for approximately five hours, suffered humiliation but no physical injuries, and was tried on subsequent criminal charges and acquitted).

The trial court added that the compensatory damages of $27,800 on the malicious prosecution claim were also reasonable, as plaintiff had to appear in state criminal court at least ten times, the case lasted for 18 months, and she went through a criminal trial. The jury awarded plaintiff approximately $17,000 for emotional and mental distress, "an amount that falls well within the reasonable limits of awards in comparable malicious prosecution cases."

Defendant also wants to reduce the $70,000 punitive damages award. The trial court affirms it, stating, "The jury found that the defendant lied to the police on two separate occasions in order to induce them to arrest the plaintiff and prosecute her. This conduct is plainly reprehensible and justifies the award of punitive damages." The trial court stated:

The jury’s compensatory damages award for the false arrest claims was well within the range of, and in fact significantly lower than, awards affirmed in comparable cases involving similar injuries. See, e.g., Martinez v. Port Auth. of N.Y. & N.J., 445 F.3d 158, 160 (2d Cir. 2006) (affirming a $360,000 compensatory award for a false arrest claim where the plaintiff was in custody for 19 hours, had not been physically assaulted, but had experienced emotional distress such as sleeplessness and anxiety); Graham, 128 F. Supp. 3d at 715 (affirming jury’s compensatory award of $150,000 for his false arrest claim where the plaintiff had combined injuries including approximately one hour of lost liberty, some minor physical pain and injury, and past and future emotional harm, including fear, panic and humiliation); Martinez v. Gayson, No. 95–CV–3788, 1998 WL 564385, at *6 (E.D.N.Y. June 30, 1998) (reducing compensatory damages award to $160,000 for false arrest and malicious prosecution claims when the plaintiff was arrested at work and detained for approximately five hours, suffered humiliation but no physical injuries, and was tried on subsequent criminal charges and acquitted).

State not responsible for inmate assault and battery

When is the government required to pay damages when a law enforcement officer attacks someone for no good reason? Police and correction officers get sued all the time for using excessive force. At least from the plaintiffs' perspective, we assume the government employer is on the hook for damages. This case challenges that assumption.

The case is Rivera v. State of New York, issued by the New York Court of Appeals on November 25. Plaintiff was incarcerated. Officer Wehby punched him about the face and head after mocking his seizure disorder. He them stomped on plaintiff, yelled expletives and said, "I hope you die." Plaintiff was then punched, kneed and kicked in the head. Plaintiff eventually lost consciousness. The officer was criminally prosecuted for the assault. The other officers involved were also fired. These awful allegations are not disputed.

Plaintiff brings this case under state law, not federal law, which would also entitle him to damages under 42 U.S.C. 1983. So the issue for the Court of Appeals is whether the state is responsible for covering plaintiff's damages. More precisely, we ask whether the officers' actions fell within the scope of their employment. Common-law principles tell us that, under the respondeat superior doctrine, employers are on the hook even for aberrant actions by their employees if they are acting within the scope of their employment, "so long as the tortious conduct is generally foreseeable and a natural incident of the employment." If the employee's actions depart from the "line of duty so that for the time being their acts constitute an abandonment of service, the employer is not liable."

Under these principles, the 4-3 majority holds, the state is not responsible for the use of force in this case. The Court reasons:

In some cases, particularly those involving occupations for which some physical contact with others is permissible or even expected, it may be difficult to determine whether a challenged action falls far enough outside the boundaries attendant to the employment relationship such that the employee should be solely liable for their respective tortious conduct. In those cases — where the question may be one of degree and not kind — the vicarious liability issue may be appropriately left to the fact-finder. But this is not such a case.

. . .

Here, the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer's interests. Further, there is no evidence in the record that DOCCS should — or could — have reasonably anticipated such a flagrant and unjustified use of force, in which, assisted by other officers who immobilized and handcuffed claimant, Wehby repeatedly punched and kicked him during a prolonged assault, removing claimant's protective helmet in order to facilitate more direct blows to his head. As such, based on the uncontested facts, it is evident that claimant's injuries were not caused by actions taken within the scope of employment and thus, there were no triable issues of fact as to the State's vicarious liability for assault and battery.

The majority points out that plaintiff has other avenues for relief, including a constitutional claim under Section 1983.

Registered nurse is not entitled to FLSA overtime

While licensed practical nurses are ordinarily exempt from overtime guarantees under the Fair Labor Standards Act, the registered nurse in this case wants overtime because she did not work in a clinical setting and was mostly handling paperwork that included approving insurance coverage. Does that mean she can recover overtime? The Second Circuit says she does not.

The case is Isett v. Aetna Life Insurance Co., issued on January 14. The FLSA is a creature of the New Deal. It provides the basis for overtime pay and other wage and hour protections. But the FLSA also has a ton of exceptions. One of those exceptions is the "professional exemption," covering anyone "whose primary job duty requires 'knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction." Under the regulations, “'[r]egistered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption.' By contrast, 'licensed practical nurses or other similar health care employees . . . generally do not qualify as exempt learned
professionals because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations." Since plaintiff is a registered nurse, this case presents a dilemma for the Second Circuit (Cabranes, Raggi and Korman [D.J.]).

In solving a case like this, the court applies a three-part test: "to qualify for the exemption, the employee must satisfy a 'primary duty test' consisting of three factors or prongs: (1) the work requires 'advanced knowledge,' (2) 'in a field of science or learning,' (3) 'customarily acquired by a prolonged course of specialized intellectual instruction.'" Under these guidelines, plaintiff is not exempt, and she therefore gets no overtime.

The Court holds that plaintiff's job duties required her to "act independent of direction, or under minimal supervision, on the basis of collected clinical data." She also acted independently (or, at a minimum, under limited supervision) on the basis of collected clinical information when she approved insurance coverage of medical services. In addition, the court rejects plaintiff's argument that she is comparable to a licensed clinical nurse (who is typically entitled to FLSA overtime) because they both acquire their skills by experience rather than specialized intellectual instruction. As the court sees it, registered nurses like plaintiff  have the ability to make a final decision about patient care with minimal supervision, which is quite unlike licensed practical nurses. The court concludes:

(1) When interpreting the scope of an FLSA exemption, courts must give the exemption a fair reading and shall not construe it narrowly against the employer seeking to assert the exemption.

(2) The first prong of the professional exemption’s primary duty test requires courts to: (A) identify what qualities or skills are characteristic of the work of the profession at issue; and (B) determine if the employee’s primary duty reflects those qualities or skills.

(3) Central to the profession of registered nursing is the ability to act independently, or under limited supervision, on the basis of collected clinical data.

(4) The District Court did not err in concluding that Isett’s job satisfies the first prong of the primary duty test. Isett’s primary duty as an appeals nurse consultant—to conduct utilization review and approve insurance coverage for medically necessary services under minimal supervision— reflects the discretion and requires the judgment characteristic of other registered nurses. Accordingly, Isett’s
job as an appeals nurse consultant required the use of advanced nursing knowledge.

(5) In cases where, as here, the employer requires the possession of an advanced academic degree, the third prong of the primary duty test for the professional exemption of the FLSA requires courts to: (A) identify the job’s primary duty which requires the use of advanced knowledge; and (B) determine if that duty is consistent with the employer’s minimum academic qualifications.

(6) The District Court did not err in concluding that Isett’s job satisfies the third prong of the primary duty test. Isett’s primary duty calls on advanced nursing knowledge that is at the core of the prolonged course of study that registered nurses receive before entering their profession.

(7) The undisputed facts demonstrate that Isett was properly classified as exempt from the FLSA’s overtime‐pay requirements because she is a professional under the statute and under the regulations adopted pursuant thereto by the Secretary of Labor.

No retaliation in railroad/workplace injury case

The plaintiff alleges that the Long Island Railroad retaliated against her for reporting a workplace injury by classifying the injury as non-work-related, a determination that cost her benefits. The Court of Appeals rules that plaintiff cannot win her case, reasoning that the adverse action took place too long after the injury. But there is a twist to this case, as demonstrated below.

The case is Sirios v. Long Island R.R. Co., a summary order issued on January 14. Plaintiff suffered the injury in July 16, 2012 while cleaning an office in the course of her duties. From February 2013 through November 2016, plaintiff and the railroad had a tug-of-war over whether her injuries were job-related. The LIRR kept changing its mind on this issue. The company reclassified her injury as non-work-related for the third time in November 2016. Plaintiff claims this final act was retaliatory.

This case is brought under the Federal Railroad Safety Act, which has an anti-retaliation provision similar to Title VII. The Second Circuit has yet to settle upon a legal standard guiding these cases, though it notes that other anti-retaliation statutes apply the Title VII standard as set forth in Burlington Northern v. White, 548 U.S. 53 (2006), which holds that any employer response to the protected activity that would deter a reasonable employee from speaking out again constitutes unlawful retaliation.

The Court of Appeals does not have to resolve the retaliation standard in this case because it rules that plaintiff cannot win for other reasons: the November 2013 adverse decision was more than four years after plaintiff first reported her injury. That's too long under the civil rights laws; courts usually will not extend the inference beyond eight months. What strikes me about this case is that the LIRR first reclassified plaintiff's injury in 2013, which would be close in time to the protected activity. So wouldn't plaintiff then have a retaliation case? No, says the Second Circuit (Chin, Carney and Sannes [D.J.]), because plaintiff "does not contend that these reclassifications were adverse actions," though they do constitute background evidence under Mercier v. Dept. of Labor, 850 F.3d 382, 388-89 (8th Cir. 2017). This is a summary order, so the Court does not delve too much into this issue, but I am sure plaintiff argued that since the multiple reclassifications were cut from the same cloth, the final reclassification qualified as a retaliatory act since it furthered the allegedly unfair reclassification practice that LIRR was implementing against her. If plaintiff argued that point, the Court rejected it, and the case is dismissed for good.

City does not have to pay damages in police beating case

The euphoria of winning a trial might give way to a new problem: how do we enforce the judgment? Normally, when you prevail against a government employee (such as a police officer), enforcement is easy because the municipality usually pays out the damages award. It's when you sue a private entity that may be judgment-proof or even file for bankruptcy that the plaintiff has a pyrrhic victory. But sometimes, even when you prevail against a police officer, the municipality is not required to pay. That's what happened in this case.

The case is City of Hartford v. Edwards, issued on January 10. Edwards sued police officer Christopher May for excessive force. The jury awarded Edwards $135,000 in compensatory damages and $275,000 in punitive damages. The trial court reduced the punitives to $75,000, so the total judgment is $210,000.00. Of course, Edwards wants to get paid, but the City had different ideas, filing a motion in the district court for an order stating the city was not on the hook for the money because, under Connecticut law, the municipality is not liable for the damages award in a Section 1983 case if the officer acted "willfully or wantonly." The district court agreed with that argument in part, ruling the statute only protected the city from paying punitive damages, not compensatory damages. The Second Circuit (Wesley, Chin and Sullivan) says the city does not have to pay anything.

The Connecticut law says a municipality must cover a damages award "if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty." Since the statute draws no distinction between compensatory or punitive damages, it means the city is off the hook for any damages that arose from wanton or wilful acts, including acts that violate the Constitution, such as police beatings. Since the jury awarded Edwards punitive damages, it necessarily found that May's unlawful acts were wilful or wanton. The Court of Appeals agrees with the district court that the city is not responsible for the punitive damages, but it also reverses the district court's holding that the city is responsible for the compensatory damages.

What it means for Edwards is that the judgment stands, but he must look to May for the money. May may or may not have the money. This is a potential problem for Edwards, since enforcing a judgment against someone who cannot afford it is always problematic. On the other hand, if May files for bankruptcy, that might not discharge the debt, since the punitive damages award means he acted intentionally and maliciously, and the bankruptcy code disallows the discharge of any debt under that circumstance.

One way around this problem, the Court of Appeals suggests, is for the plaintiff to decline to seek punitive damages. Since Edwards sought punitives, that "necessarily put the wilful or wanton nature of Officer May's actions at issue." Interesting: to ensure the plaintiff recovers for his meritorious lawsuit, he is better off not seeking punitive damages.

Court finds Village of Pomona discriminated against Jewish organization

We start the new year with a religious discrimination case in which the Court of Appeals finds that a village in Rockland County discriminated against a Jewish organization by passing zoning laws that thwarted the organizations plans for a development that would include a housing complex.

The case is Congregation Rabbinical College of Tarticov v. Village of Pomona, issued on December 20. After the plaintiff organization purchased 100 acres of land, it told the planning board that it wanted to build a religious school for children and a large synagogue. The village began amending its laws in a way that would hamper the development project. Was this discriminatory, or good-faith zoning amendments to protect the village's small-town flavor? We have a long procedural history, not surprising to anyone who is familiar with local planning boards that closely analyze development plans, particularly large ones. In the end, plaintiff sued the village under the Constitution and federal religious discrimination laws. The district court ruled in favor of plaintiff, and the village appeals.

The Court of Appeals (Wesley, Chin and Kaplan [D.J.]) mostly agrees with the district court. Under constitutional standards set forth by the Supreme Court, we review religious discrimination claims through circumstantial evidence. Here is the standard:

Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” This evidence may include “the series of events leading up to a land use decision, the context in which the decision was made, whether the decision or decisionmaking process departed from established norms, statements made by the decisionmaking body and community members, reports issued by the decisionmaking body, whether a discriminatory impact was foreseeable, and whether less discriminatory avenues were available.

The Court of Appeals first notes that one set of zoning amendments in 2001 were not intended to be discriminatory. This ruling overturns the district court's contrary analysis. The district court interpreted certain public comments by taxpayers and public officials to reflect discriminatory intent. But the Second Circuit reviews those comments in context and finds the district court's findings of discriminatory intent were clearly erroneous. It is rare for an appellate court to reject the district court's factual findings. The Court of Appeals similarly rejects the district court's findings of discriminatory intent for a second set of laws that the village passed in 2004. The Court of Appeals is somewhat apologetic about these holdings, noting that the district court carefully reviewed the record and that suburban residents and public officials are faced with significant pressures when developmental projects are proposed in their communities. But it's difficult to prove religious discrimination in the zoning context. "There simply is not enough evidence to permit a finding by a preponderance of the evidence that the Village acted with discriminatory intent in adopting the 2001 and 2004 local laws. Instead, the evidence suggests that legitimate land use concerns precipitated the passage of these laws."

The zoning amendments of 2007 are a different story. Plaintiff still wanted its development project. The village in 2007 passed dormitory and wetlands laws that interfered with development plans. The district court said this was discriminatory, and the Court of Appeals agrees, summarizing the district court's analysis as follows:

The district court held that the 2007 Dormitory and Wetlands Laws were motivated by discriminatory animus based on the following evidence: (1) villager comments made at a January 22, 2007 public hearing on the draft 2007 Dormitory Law, (2) the absence of studies indicating the necessity or utility of the 2007 Wetlands Law combined with the Village’s knowledge that there were wetlands on the property and the timing of the law’s adoption, (3) the exception for single-family homes in the 2007 Wetlands Law, (4) the campaign promise of Sanderson and Yagel and Louie to stop the threat of the TRC development, (5) statements made by Sanderson, Louie, and Yagel “indicative of [Pomona’s] prejudice against Tartikov and Orthodox/Hasidic Jews,”253 (6) statements made by members of the community “express[ing] animus against Orthodox/Hasidic Jews,” (7) the board’s rejection of proposals to increase the maximum height of dormitories and number of dining facilities allowed in the 2007 Dormitory Law, and (8) the Village’s “behavior with respect to other proposed projects.” 

The Court of Appeals finds the record supports these findings. One notable finding is that public comments may be used against municipal boards if the court finds the comments influenced the board's adverse decision. That is settled law. The Second Circuit writes:

It is impossible for us to glean precisely how the board weighed the villagers’ comments. But that is not our task on appeal. It is clear from Sanderson’s statement that the comments influenced at least his decisionmaking process. Some of those comments were susceptible to an inference of religious animus and hostility toward the group that would be affected negatively by the 2007 Dormitory Law.

Viewing the record as a whole, including “the series of events” leading up to the adoption of the 2007 Dormitory Law, the “context in which the decision[s]” regarding the law were made, and “statements made by the decisionmaking body and community members,” we cannot say that the district court clearly erred in finding that religious animus was a “significant factor in the position taken by . . . those to whom the decision-makers were knowingly responsive.” And this is so notwithstanding that a proposal to add 4,500 new residents and multiple apartment buildings to a small village of single family houses with a population of 3,200 almost certainly would have provoked opposition regardless of any religious element.