3. Section 1985(3)
As Orthodox Jews, plaintiffs are within the scope of the
protections accorded by 42 U.S.C. § 1985(3). An action lies
under § 1985(3) when a plaintiff is injured by a private
conspiracy to interfere with his constitutional rights, so long
as there is "some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.
1790, 1798, 29 L.Ed.2d 338 (1971). We stated earlier that we
believed that Orthodox Jews were entitled to protection under
the civil rights statutes on the basis of race-based animus. In
any case, religious-based discrimination is clearly within the
ambit of this particular statute. See Colombrito v. Kelly,
764 F.2d 122, 130 (2d Cir. 1985); Ward v. Connor, 657 F.2d 45, 48
(4th Cir. 1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71
L.Ed.2d 445 (1982). Thus, the plaintiffs are entitled to assert
their claims arising under this statute.
FIRST AMENDMENT AND FAIR HOUSING ACT CLAIMS
The defendants suggest that the plaintiffs' first amendment
and Fair Housing Act claims should be dismissed because they
are premature and because plaintiffs have failed to state a
claim upon which relief can be granted.
The question of standing is the "threshold question in every
federal case, determining the power of the court to entertain
the suit." Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d
450 (1976). At a minimum, Article III of the Constitution
requires a party seeking to invoke a federal court's
jurisdiction to demonstrate that: 1) "'he personally has
suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant'"; 2) "the injury
'fairly can be traced to the challenged action'"; and 3) the
injury "'is likely to redressed by a favorable decision.'"
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 472, 102
S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted);
Southside Fair Housing Committee v. City of New York,
928 F.2d 1336, 1341 (1991).
Defendants contend that application of the standing doctrine
to the allegations in the complaint require that the second and
third claims alleging free speech and fair housing violations
be dismissed for lack of justiciability. To the extent that the
complaint alleges that zoning laws will be passed or will be
enforced in such a manner that Orthodox Jews will be
effectively excluded as residents of Airmont, the plaintiffs
are still engaging in speculation. While the election of the
ACA slate as the Village's administration moves plaintiffs'
fears one step closer to reality, until the zoning has become
a palpable reality, no injury has been stated.*fn7
But plaintiffs make another assertion in their complaint.
They assert that the incorporation itself has burdened their
rights to free exercise of religion and freedom of association
amounting to injury both under the First Amendment and the Fair
Housing Act. As the incorporation is reality, the claims
related to that must be examined to resolve the issue of
At the outset, we are persuaded that the plaintiffs have
alleged personal injury as a result of the defendants' conduct
under both statutes. With respect to their first amendment
claims, plaintiffs allege that the intention of the
incorporation was to prevent the Orthodox Jewish community from
establishing a synagogue in the village. As a result, they
claim that other Orthodox Jews have hesitated to move into the
Airmont area which negatively impacts the plaintiffs' right to
free association. See Affidavit of Chanie LeBlanc-Sternberg
(April 25, 1991), ¶ 8; Affidavit of Fred Walfish April 25,
1991), ¶ 12. In addition,
one has a right to join with others to pursue goals
independently protected by the first amendment such as
religious worship. See Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151
(1976). If governmental action has a chilling effect on the
ability to associate for religious purposes, then an injury has
been stated sufficient to satisfy the first prong of the
standing analysis. See The Presbyterian Church (U.S.A.) v.
United States, 870 F.2d 518, 521-523 (9th Cir. 1989).
Similar reasoning supports plaintiffs' contention that they
have stated an injury under the Fair Housing Act. Though
plaintiffs themselves have not been excluded from living in
Airmont, they assert that the incorporation has had the effect
of making Airmont a less desirable place to live for Orthodox
Jews who fear that they could not freely practice their
religion. As a result, Orthodox Jews are dissuaded from moving
into Airmont which plaintiffs assert has injured them.
Defendants argue that the plaintiffs are attempting to assert
the rights of third parties and this should not be permitted.
The Fair Housing Act embraces a broad concept of standing and
courts lack the authority to create prudential barriers to
standing in suits brought under that Act. Gladstone, Realtors
v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d
66 (1979). As the bar to allowing third parties to vindicate
the rights of others is prudential, Craig v. Boren,
429 U.S. 190, 193, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976), under the
Fair Housing Act, the distinction between "third party" and
"first party" standing is of little significance. Havens Realty
Corp. v. Coleman, 455 U.S. 363 at 375, 102 S.Ct. 1114 at 1122,
71 L.Ed.2d 214. The only requirement for standing to sue under
the Fair Housing Act is the Article III requirement of injury
in fact. Id. at 376, 102 S.Ct. at 1123. "As long as
[plaintiffs] have alleged distinct and palpable injuries that
are 'fairly traceable' to [defendants'] actions, the Art. III
requirement of injury in fact is satisfied." Id.; Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261,
97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). Plaintiffs claim that
their ability to associate with others of similar beliefs is
limited by the chilling effect that the incorporation has had
on the desire of the Orthodox to move into Airmont. Thus, they
are deprived of the benefits that would accrue from living in a
neighborhood where all people are welcome regardless of their
color or faith. In this case, direct violations of the rights
of others injure the plaintiffs. See, e.g., Craig v. Boren,
429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976)
(licensed vendor of beer has standing to assert equal
protection claim of third parties because she suffers economic
injury from statute barring sales of liquor to males under 21
years of age); Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct.
2868, 2876, 49 L.Ed.2d 826 (1976) (doctor paid by Medicaid may
assert the rights of female patients as against governmental
interference with the abortion decision).
In sum, we find that the plaintiffs have sufficiently stated
an injury in fact. Additionally, the facts alleged show the
injury to be traceable to the defendants*fn8 and that the
injury can be redressed by the court. Plaintiffs have standing
to bring this suit.
The defendants also argue that this case is not justiciable
because it is not ripe, pointing to the fact that no
exclusionary zoning laws have been passed. The ripeness
doctrine is designed to ensure that a dispute has matured to a
point that warrants decision. Ripeness "turns on 'the fitness
of the issues for judicial decision' and 'the hardship to the
parties of withholding court consideration.'" Pacific Gas
& Elec. Co. v. State Energy Resources Conservation and Dev.
Comm'n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752
(1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136,
87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).
The point would appear to have been reached because the
village incorporation has occurred. Jones v. Deutsch,
715 F. Supp. 1237, 1247 (S.D.N.Y. 1989) (where village incorporation
had not yet taken place, challenge to creation of village was
not ripe). See United States v. Scotland Neck City Bd. of
Educ., 407 U.S. 484, 486-87, 92 S.Ct. 2214, 2216, 33 L.Ed.2d 75
(1972) (issues ripe where state statute authorizing creation of
new school district had been approved in order to frustrate
school desegregation orders and ratified by voters); Lee v.
Macon County Bd. of Educ., 448 F.2d 746, 749, 752 (5th Cir.
1971) (incorporation of independent school district had
occurred making dispute ripe). The crux of this complaint is
that the boundaries of an incorporated village were chosen with
discriminatory intent. Gomillion, 364 U.S. 339, 81 S.Ct. 125.
In light of the plaintiffs' claims that the incorporation
itself is adversely impacting their freedom of association and
free exercise of religion, hardship would continue to accrue to
the plaintiffs were this court to withhold its consideration.
Thus, this case is ready for judicial intervention.
2. Claims Arising Under the First Amendment
Defendants suggest that the incorporation of Airmont is a
neutral governmental action which has an incidental impact upon
the free exercise of religion by the plaintiffs. Plaintiffs
respond that the incorporation is not neutral governmental
action because it was carried out to accomplish a
discriminatory purpose. We find that the facts alleged show
that the incorporation had more than an incidental impact on
plaintiffs' right of free exercise of religion.