And congress said, 'let there be religious land use': a RLUIPA primer.

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Religious Land Use and Institutionalized Persons Act of 2000

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And congress said, 'let there be religious land use': a RLUIPA primer.

A Jewish congregation seeks to hold weekly religious services in a house located in a part of the city zoned for residential use only; must the city allow it to do so? A Christian congregation wishes to set up a church in storefront premises in a strip mall zoned for commercial use only; must the town allow it to do so? In each case, will the interests that have long led even well-motivated government actors to reject requests for variances and special use permits--such as reducing traffic, parking problems, noise, and congestion--suffice to rebut the cries of "religious freedom"?

As most of the city attorneys of this country are now undoubtedly aware, these questions have become much more difficult to answer in light of the enactment of the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). (1) The core provision of the section of the act entitled "Protection of Land Use as Religious Exercise" (2) is this:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (3)

The statute goes on to provide: "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." (4)

Why did Congress provide such extraordinary protection to religious institutions in the context of local zoning decisions? According to Senators Hatch and Kennedy:

Churches in general, an...

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