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So, I was doing an Internet search to determine the legality of bonfires in Los Angeles (for a roleplaying game character I'm planning), when I came across this page stating that owning and setting off fireworks in LA is illegal. However, it occurs to me that there are religions such as Taoism where setting off fireworks is a part of their religious activities (in the Taoists' case, they're used to scare off ghosts and evil spirits), and these religious activities should be protected by the First Amendment, right?

Is there a religious exemption in LA's law that bans fireworks? If not, have any Taoists (or members of other religious groups that use fireworks as a part of their religious rituals) ever taken the city of LA to court over it?

nick012000
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Yes, there is a religious exemption.

SEC. 57.5608.1.2. FIREWORKS. It shall be unlawful for any person to use, give, possess, sell, or discharge any fireworks in the City of Los Angeles.

EXCEPTION : Patriotic, civic, and religious organizations may conduct fireworks displays under permit by the Chief and in accordance with the provisions of the California Health and Safety Code.

https://codelibrary.amlegal.com/codes/los_angeles/latest/lamc/0-0-0-351279

richardb
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No, nor do they need to

The Supreme Court in Employment Division v. Smith made clear that "the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." United States v. Lee, 455 U. S. 252, 455 U. S. 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 310 U. S. 595 (collecting cases)." Smith also set the precedent "that laws affecting certain religious practices do not violate the right to free exercise of religion as long as the laws are neutral, generally applicable, and not motivated by animus to religion."

The fireworks ban is “neutral, generally applicable, and not motivated by animus to religion."

Dale M
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  • This answer is incorrect because it incorrectly assumes that the city's ordinance is neutral and generally applicable. – bdb484 Aug 10 '21 at 20:34
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    Note that Gobitis was overturned only three years later by West Virginia State Board of Education v. Barnette, generally considered a landmark decision, and Gobitis is probably not good law for any purpose, if not quite as fatal to cite as Dread Scott – David Siegel Aug 10 '21 at 21:22
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I don't know of any challenges to the law, but it is likely unconstitutional.

The Free Exercise Clause of the First Amendment generally prohibits burdens on the exercise of religious beliefs unless they are merely incidental to the effects of a “neutral, generally applicable law.” Employment Div. v. Smith, 494 U.S. 872, (1990). If the challenged law is not neutral and generally applicable, it is subject to strict scrutiny.

The Los Angeles fireworks ban can be found at Chapter 56 of the Los Angeles Fire Code:

The possession, manufacture, storage, sale, handling and use of fireworks are prohibited.

Exceptions:

  1. Storage and handling of fireworks as allowed in Section 5604.
  2. Manufacture, assembly and testing of fireworks as allowed in Section 5605 and Health and Safety Code Division 11.
  3. The use of fireworks for fireworks displays pyrotechnics before a proximate audience and pyrotechnic special effects in motion pictures, television, theatrical or group entertainment productions as allowed in Title 19, Division 1, Chapter 6 Fireworks reprinted in Section 5608 and Health and Safety Code Division 11.
  4. The possession, storage, sale, handling and use of specific types of Division 1.4G fireworks where allowed by applicable laws, ordinances and regulations, provided that such fireworks and facilities comply with NFPA 1124, CPSC 16 CFR Parts 1500 and 1507, and DOTn 49 CFR Parts 100–185, as applicable for consumer fireworks and Health and Safety Code Division 11.

There is a separate exception for religious organizations, but not for private religious observances. I don't know enough about Taoism or any other religion to say that banning the use of fireworks in such a setting is a burden on religious beliefs, but assuming it is, the Los Angeles ordinance is likely unconstitutional.

Free Exercise Clause analysis often breaks down -- as in the other answer to this question -- by merely assuming that a challenged law is "generally applicable." The Supreme Court's COVID-related cases should make clear that this approach is no longer tenable.

For instance, in Tandon v. Newsom, 141 S. Ct. 1294 (2021), a group of religious leaders challenged California's ban on private gatherings. The district court and the Ninth Circuit upheld the ban as "neutral and generally applicable" because it applied generally to all private gatherings. But the Supreme Court reversed and struck down the ban, noting that the state actually allowed all manner of public gatherings, including at stores, salons, theaters, concerts, and so on:

Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.

Because the law treated carved out exceptions for other activities that posed similar risks as religious gatherings, it was subject to strict scrutiny, which is almost always fatal.

The Los Angeles Fire Code seems to suffer from the same defects, as the prohibition on the use of fireworks has several exceptions, including for movies, TV, theater, and "group entertainment." Add to that the laundry list of groups to whom the entirety of the Fire Code does not apply (Section 5601.1), and you have a situation rather similar to Tandon: The law permits comparable secular activity (i.e., "group entertainment") differently than religious exercise, triggering strict scrutiny.

Because the City would likely be unable to prove that banning religious uses while permitting entertainment uses is the least restrictive way of achieving its interests, the law would be struck down.

bdb484
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  • as another answer notes, there is a specific exception for religious groups, see https://codelibrary.amlegal.com/codes/los_angeles/latest/lamc/0-0-0-351279 for text. Whether lack of an exemption for private religious acts would be enough for a challenge might depend on the specific facts. – David Siegel Aug 10 '21 at 21:27
  • I'm not sure I'd agree that it depends on the specific facts. Which facts could make it OK to permit large displays for entertainment while prohibiting displays for private religious gatherings? – bdb484 Aug 10 '21 at 21:40
  • If the religion in question usually holds such displays only as a part of large group events, so that the degree of burden is reduced; If the is a finding that such use is dangerous and can be done safely only with the kind of supervision that goes with a permit; If the is a finding that such activities are not key religious events, so that they burden is slight; How hard a permit is to obtain. In short if the burden, balanced against the legitimate governmental interest, is found to be small enough. – David Siegel Aug 10 '21 at 21:45
  • Ah. I guess you're focusing on the second question (whether it survives strict scrutiny), while I was thinking about the first (whether the law is generally applicable). I agree that some of these questions would be relevant at that point, though I think the court could not properly base its ruling on its interpretation of religious tenets, such as whether fireworks are "key." – bdb484 Aug 10 '21 at 21:56
  • If the other exceptions are all for sizable gorps, or are under professional supervision, as seems to be the case, the law might be no more restrictive of religious events than of any other events, and thus pass Tandon: and go to intermediate scrutiny. While a court should not apply its own judgement of what is a vital vs an unimportant religious tenant, it can accept the plaintiff's statement that the burden is minor, if the plaintiff says that. Even under strict scrutiny, and far more under intermediate, there is a balancing operation to be done. – David Siegel Aug 10 '21 at 22:04
  • That doesn't seem to add up. If there are exceptions for large/supervised groups, but no exceptions for a small religious observance, how can the law be no more restrictive of religious events than of secular events? – bdb484 Aug 10 '21 at 22:29
  • There are, as I read it, exceptions for supervised secular events and supervised religions events, none for small unsupervised secular events, and none for religious events without a permit. If that is correct, burdens on religious activities are no higher than those on comparable secular activities. That seems to me to equate to "general applicability" but I may be wrong on facts or law. Hard to be sure until someone actually files a challenge. – David Siegel Aug 10 '21 at 22:39
  • Yes, I think Tandon clarifies that courts may not analyze "general applicability" the way you're saying. The question is whether the exception implicates the same interests advanced by the burden on religion. If we can agree that the point of the fireworks ban is either safety or noise, the question becomes whether the government is permitting one group to undermine those interests while refusing to let the religious plaintiff do the same. I can't imagine any facts that make the answer "no." That takes us to strict scrutiny, where there would still be some fact questions to resolve. – bdb484 Aug 10 '21 at 23:05